Fear of lawsuit leads Dane County to loosen limit on church gatherings

Threatened with the prospect of a lawsuit from the Madison Catholic Diocese, Public Health Madison Dane County (PHMDC) has revised an order on the size of worship services.

A May 22 order from the health department classified worship services as “mass gatherings” limited to no more than 50 people. Other routine businesses that were permitted to reopen were given a ceiling of 25% of building capacity.

On Wednesday, June 3, attorneys from Sidley & Austin in Washington, D.C., joined by three other law firms, sent a 17-page letter of protest on behalf of the Madison Catholic Diocese to Dane County Executive Joe Parisi, Madison Mayor Satya Rhodes-Conway and PHMDC Director Janel Heinrich.

The letter declared that the diocese “has no particular interest in litigation or in a protracted dispute or an uncooperative relationship with civil authorities.” But, citing the state Supreme Court’s May 13 ruling that canceled Wisconsin’s statewide Safer at Home health order, the diocese letter also asserted that “we are confident that if challenged your orders and policies with respect to religious gatherings will not stand.”

On Friday, the city, county and their joint health department responded with a revised order that no longer classifies worship services as “mass gatherings” limited to 50 people, and instead includes them among general business with gatherings limited to 25% of capacity.

The Madison Catholic Diocese has 40 churches or worship spaces in Dane County, according to Brent King, a diocese spokesman. The new order will allow the 37 of them with capacities exceeding 200 people — including seven with capacities of more than 1,000 — to increase the size of their in-person worship beyond the previous limit of 50.

A joint announcement of the change made it clear that fear of a lawsuit and its expense led the city, county and PHMDC to revise the earlier order. The statement noted that the earlier order had “allowed churches to have as many services as they wanted, but asked they be capped at 50 parishioners per service,” and that the restrictions were written “to reduce the risk of an outbreak of COVID-19 from occurring where people gather.”

“Basic life needs – food, shelter, and clothing – are in such high demand in our community given the current pandemic, so it’s hard to imagine the best use of parishioner or taxpayer dollars right now is in a courtroom,” stated Parisi, noting that the county has appropriated $6 million for food pantries and another $4.5 million to put 420 homeless people in area hotels since the outbreak.

Asked about Parisi’s comment, King, the diocese spokesman, told the Wisconsin Examiner in an email message: “We agree wholeheartedly. Those are indeed important needs, which the Church continues to address and has throughout this pandemic and will far after it is over.”

King said that all four law firms involved had provided their services to the diocese pro-bono.

PHMDC director Heinrich stated the agency’s efforts to limit the spread of the virus had been “neutral and even-handed” while seeking to “reduce the risk of public infection.” The health agency reiterated its recommendations that faith groups opt for virtual services — as many have — rather than in-person gatherings.

In a statement, Bishop Donald Hying of the diocese said church officials were “pleased” that what he called “the unequal 50-person cap on religious gatherings” had been ended, and called it his “duty to ensure that Sunday Mass be available as widely as possible to the Catholic faithful, while following best practices when it comes to public health.”

Hying stated that diocese officials “look forward to working together with the county and city to continue the reopening process in a safe, cooperative, and responsible manner.”