Madison Diocese challenges Dane Co. reopening plan: "Unjustly stifled our pastoral mission"

Published: Jun. 3, 2020 at 4:47 PM CDT
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Attorneys representing the Madison Diocese sent a letter to Madison Mayor Satya Rhodes-Conway and Dane County Executive Joe Parisi arguing that the reopening plan discriminates the diocese.

Law firms Sidley Austin and Troutman Sanders and the group Becket Fund for Religious Liberty,

Wednesday that the "Forward Dane" reopening plan's 50-person cap during worship "is discriminatory and targets the Catholic Church for selective enforcement" compared to other venues and businesses holding mass gatherings.

The law firms argue that the initial "Forward Dane" executive order issued on May 18 listed religious entities as "essential," allowing them to resume in-person services at 25-percent capacity with no 50-person cap.

The Madision Diocese then announced it was making a plan in order to follow that order while also allowing its church members to attend in-person worship.

When the revised "Forward Dane" order

on May 26, however, religious entities had to abide by the 25-percent capacity as well as a 50-person cap during services, whichever is less people. Meanwhile, mass gatherings in movie theaters and gyms, among other business, must abide by a 25-percent capacity but no cap on the number of people, according to the order.

According to the Diocese, that change means some of its churches would be capped at less than their five percent capacity.

The Diocese and the law firms representing it argue that difference unfairly discriminates the Diocese and is unconstitutional.

“In the wake of the coronavirus pandemic and the racial injustice of the past week, our community is crying out for unity, for grace and for spiritual healing. We are ready and able to answer that call, but the 50-person cap has unjustly stifled our pastoral mission,” said Bishop Donald Hying of the Madison Diocese in a

Madison assistant city attorney Marci Paulsen

, after church leaders spoke up. But Paulsen insisted that religious entities are being treated the same as other essential businesses under the reopening order.

Paulsen added that if religious entities do not follow the order, they could face up to $1,000 in fines per violation, plus court costs.

But in the release Wednesday, attorneys representing the Diocese said that the order is instead surveillance to make sure "not too many people go."

“If it’s safe enough for thousands to shop together at malls, and to sit in a theatre for a two-hour film, it’s safe enough to spend 45 minutes safely socially distanced in worship. Madison and Dane County should end their unequal treatment of religious people," said Eric Rassbach, vice president and senior counsel at Becket.