Delaware Supreme Court Dismisses Suits Challenging Prior Covid Restrictions on Houses of Worship

 In In re Covid-Related Restrictions on Religious Services, (DE Sup. Ct., Aug. 1, 2024), the Delaware Supreme Court upheld the dismissal by two lower courts of challenges to restrictions on houses of worship imposed by orders of Delaware's governor during the early stages of the Covid pandemic. Plaintiffs filed suit in the Chancery Court over 18 months after the restrictions were lifted seeking an injunction, and when that was rejected, filed suit in Superior Court seeking damages and a declaratory judgment. The Delaware Supreme Court said in part:

Plaintiffs could not demonstrate reasonable apprehension of future conduct.  As the Court of Chancery noted below, “[a]lthough it is true that the virus continues to circulate and mutate, the possibility of a future surge, much less one that will necessitate emergency measures on par with what the world experienced in the first half of 2020, is speculative at best.”  Appellants do not confront the speculative nature of the future threat they allege, and instead invoke a generalized refrain that any restriction on their religious freedom causes irreparable harm.  This argument, such that it is, does not address the Court of Chancery’s analysis or carry Appellants’ burden to establish subject matter jurisdiction.  The importance of Appellants’ constitutional rights is not disputed, but it also is not dispositive.  The fact remains that, by the time Appellants filed suit, the Challenged Restrictions had been lifted, the Governor had entered into a binding agreement not to impose future restrictions targeting Houses of Worship, and the apprehension of a future pandemic and conditions like those of the early days of the emergency was hypothetical and speculative.  This Court “decline[s] to render an advisory opinion on a hypothetical scenario.”...

... [T]he Superior Court correctly held that Appellants’ injury could not be redressed through a prospective declaratory judgment.  In much the same way that Appellants’ irreparable harm argument crumbled because the Challenged Restrictions no longer were in effect and any future action imposing similar restrictions was speculative, the declaratory judgment sought in the Superior Court would not alter the status quo.  Moreover, Appellants’ constitutional rights would not be restored or further protected by declaratory relief because the complained-of harm had long since ceased and the threat of future harm was speculative....

The Delaware Supreme Court also concluded that a damage action against the Governor was barred by the Delaware State Tort Claims Act and qualified immunity.

Delaware School Enters Resolution Agreement with DOE Over Antisemitism Complaint

In a January 29 press release, the U.S. Department of Education Office for Civil Rights announced an agreement with the Red Clay, Delaware, Consolidated School District resolving a complaint about antisemitic harassment of a student. The press release sets out a number of incidents of harassment by fellow students. It then finds:

While the district responded to most harassing incidents the student experienced, these responses were often haphazard; were inconsistently enforced as well as inconsistently reflected in district documentation; did not consistently include effective or timely steps to mitigate the effects of the harassment on the student or other students; and did not appear to respond to escalating and repeated incidents.

OCR's findings are set out at greater length in its formal letter to the school district.

The school district has agreed (full text of Resolution Agreement) to reimburse the student's parents for past counseling, academic and therapeutic service costs from the incidents. It has agreed to widely publicize an anti-harassment statement; implement a student informational program; revise school policies; engage in training; audit complaints and incidents; and conduct an assessment of school climate.

JTA, reporting on the agreement, says:

The agreement marks the first time in nine months that the education department announced the closure of an antisemitism-related investigation filed under Title VI....

Delaware Chancery Court Says Religious Leaders' Challenge to COVID Orders Was Filed in Wrong Court

In In re Covid Related Restrictions on Religious Services, (Del. Ch., Nov. 22, 2022), the Delaware Court of Chancery held that a challenge by religious leaders to now-lifted Covid-related restrictions on religious services should be brought in Superior Court, not in Delaware's Chancery Court which is limited to providing equitable relief. The state's other courts are capable of awarding damages and issuing a declaratory judgment. In reaching that conclusion, however, the court modified the test it has traditionally used to determine whether to grant a permanent injunction. The court said that in order to obtain a permanent injunction, as opposed to a TRO or preliminary injunction, petitioner must only show that remedies at law would be inadequate. Threat of irreparable harm is one way, but not the only way, to show this. The court went on, however, to conclude:

[W]hen a plaintiff seeks to ground equitable jurisdiction on the potential need for a permanent injunction, the pled facts must support a reasonable apprehension that the defendant will act in a manner that will necessitate the injunction’s issuance. Under the reasonable-apprehension test, a plaintiff’s subjective fears are not sufficient. There must be objectively good reasons to think that a permanent injunction will be warranted. The plaintiffs have not pled facts that make it reasonably conceivable that the Governor will re-impose the Challenged Restrictions.

Suspension Of Attorney Did Not Violate Her Free Exercise Rights

In In re Kelly, (DE Sup. Ct., Aug. 10, 2022), the Delaware Supreme Court accepted the report of its Board on Professional Responsibility and involuntarily transferred a state bar member to disability inactive status. The attorney's incoherent court filings, many containing religious references, led to the proceedings to move respondent to inactive status.  Respondent claimed, among other things, that the proceedings violated her free exercise rights. The court said in part:

It is the unfocused, irrelevant, and incoherent nature of many of Kelly’s submissions that led to this proceeding, not her religious or political beliefs as she contends. Kelly’s references to her religious and political views throughout her submissions do not shield her from scrutiny concerning her competency to practice law.

Suits In Delaware Seek Bans On Future Emergency Orders Affecting Worship Activities

Two similar lawsuits were filed yesterday in a Delaware state trial court seeking to prevent any future pandemic or other emergency declarations from placing limits on gatherings for religious worship.  The complaints in Hines v. Carney, (DE Ch., filed 12/1/2021) (full text) and Landow v. Carney, (DE Ch., filed 12/1/2021) (full text), citing state and federal constitutional protections, seek injunctions to prohibit

(1) any shutdown Order prohibiting Sunday or weekday assembly for religious worship or setting any attendance limit of 10 or more on the number of persons permitted to worship; (2) any shutdown or subsequent Orders preventing or directing how speech, preaching and teaching from the pulpit is to occur; (3) any shutdown or subsequent Orders prohibiting speech through singing in worship of God, individually or as a group; (4) any shutdown or subsequent Orders prohibiting assembly of worshipers based on age or any other personal characteristics such as health, wealth, race, gender, or other physical or emotional characteristic; (5) any Orders prohibiting Baptism or directing how the ritual is to be conducted; (6) any Orders prohibiting the Lord’s Supper or directing how the ritual is to be conducted; and (7) expressing preferences or favoritism for the practices of one religion over another.

WDEL News reports on the lawsuits.

Dismissal Of Suit Against Trump For Promoting Religion Affirmed By Delaware Supreme Court

In Kelly v. Trump,(DE Sup. Ct., July 7, 2021), the Delaware Supreme Court affirmed the dismissal on standing grounds of two claims in a suit against then-President Donald Trump contending that he created the illusion of government sponsorship of religion, The court also affirmed the refusal to allow plaintiff to substitute President Biden as defendant because he allowed Executive Order 13798 to remain in effect.  According to the court:

[Plaintiff]  contends that the executive order “require[s] government organizations and agents to partner with churches to pay churches to perform government business for the government....  She states that the “churches create the illusion of charity while serving business greed” and that she “believe[s] people will be damned to hell for thinking business greed is charity.”...

Kelly’s claim is manifestly without merit. Contrary to her assertion, Executive Order 13798, on its face, does not prescribe any partnership between the government and any religious organization.

Court Refuses To Enjoin City's Holiday Display Policy

In Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, Dec. 11, 2020), a Delaware federal district court refused to issue a preliminary injunction against the city's policy on religious displays at the Rehoboth Beach Bandstand. Plaintiffs want to continue their past practice of erecting a creche on the site for the Christmas season. The city's policy, which allegedly at one time banned religious displays of all kinds, was revised while this litigation was pending so that it now prohibits only any unattended private display on city property. However it permits attended religious and secular displays. The court said in part:

[B]ecause the motion is directed to a policy that no longer exists (if it ever did) and there is no realistic chance the alleged unconstitutional conduct will be resumed before the Court can reach the merits of the case, the motion must be denied as moot. It is also unripe. The Knights is free to apply to display an attended creche, but it has not yet done so. Finally, ... even assuming Plaintiff has established a likelihood of success on the merits, the motion must be denied because Plaintiff has failed to show it will suffer irreparable harm in the absence of preliminary injunctive relief.

Suit Against Trump For Misleading Christians Is Dismissed For Lack of Standing

In Kelly v. Trump, (Del. Chancery, Nov. 2, 2020), a Delaware Chancery Court Master recommended dismissing as legally frivolous a suit against President Donald Trump alleging that he violated plaintiff's free exercise and Establishment Clause rights. The court said that plaintiff "has not shown an actual or concrete injury to her caused by Trump’s conduct....  Her contentions are too remote and vague to be actionable."  The court described plaintiff's allegations in part as follows:

Kelly’s main theory of her case is that Trump creates the illusion of being a devout Christian, while engaging in acts that Kelly contends are against the main tenets of Christianity. She claims that his actions substantially burden and injure her “free exercise of religion”... by [his] increased threat of government sponsored religious persecution.... Kelly alleges that ... he is misleading people, deceiving them to sin, and dooming them to hell. The primary harm Kelly claims is that, because Trump is leading people to hell, Kelly will not be able to love them for eternity. She also alleges that she is persecuted ... because of Trump’s support for one religious belief, and suppression of others....

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

3rd Circuit, 2-1, Affirms Dismissal of Church's Challenge To Delaware COVID-19 Limits

In Bullock v. Carney, 2020 U.S. App. LEXIS 17374 (3d Cir., May 30, 2020), a majority of a 3-judge panel in the U.S. 3rd Circuit Court of Appeals upheld a Delaware federal district court's denial of a preliminary injunction to a pastor who objected to the Governor's COVID-19 restrictions on worship services. In a one-sentence order, the court affirmed the district court "substantially for the reasons set forth in the Court's May 29, 2020 Memorandum Opinion."  Judge Phipps filed a dissenting opinion, saying in part:

Reverend Bullock does not bring a free exercise claim in isolation, but rather he also challenges a restriction on a communicative element of that freedom. Specifically, he disputes limitations on gathering size, preaching, baptism, and communion. And in any event, because these restrictions govern churches specifically, they do not act as neutral and generally applicable regulations. Accordingly, to be constitutional, the Governor's order must survive strict scrutiny.

A reasonable probability exists that the Governor's order does not meet that most exacting standard of constitutional scrutiny....  Here, the Governor's order furthers a compelling state interest — preventing the spread of the coronavirus. But ... a reasonable probability exists that the Governor will not be able to demonstrate that the challenged restrictions on churches are narrowly tailored to accomplishing that goal.

TRO Denied In Church's Challenge To Delaware COVID-19 Order

In Bullock v. Carney, (D DE, May 29, 2020), a Delaware federal district court refused to issue a temporary restraining order to the pastor of Canaan Baptist Church who objected to Delaware Governor John Carney's COVID-19 restrictions on worship services. The court refused the TRO in part because the governor's restrictions had been liberalized by a May 23 order. Additionally the court said:

... Dr. Bullock's counsel argued that his client would be irreparably harmed as a result of three restrictions imposed by the May 23rd Guidance: (1) the requirement that preachers wear a mask while preaching; (2) the requirement that the pastor ( or anyone else) not hold a person during the course of the person's baptism; and (3) certain requirements that relate to the preparation and distribution of communion.... There is, however, no record evidence to support these assertions, and attorney argument cannot establish a showing of irreparable harm.

The court added:

[M]y decision today has no bearing on the merits of Dr. Bullock's claims. Those claims implicate one of our most treasured rights protected by the Constitution-the right to exercise freely one's religion. And they implicate as well the fundamental right of a state "to protect itself against an epidemic of disease which threatens the safety of its members.".... These important principles make this an important case, and my decision today will afford me the opportunity to give the case the considered reflection it deserves.

Delaware News Journal reports on the decision.

Pastor Sues Over Delaware COVID-19 Restrictions On Church Services

According to the Delaware News Journal, on Tuesday Rev. Christopher Bullock, pastor of  Canaan Baptist Church in New Castle, filed suit against Delaware Governor John Carney over COVID-19 limits on church services. The suit was filed a day after the Governor loosened restrictions somewhat. According to the paper:

[G]atherings must be limited to 30% of the fire code capacity and strict social distancing must be maintained. In-person services were previously limited to 10 people at a time. 

Also, service times cannot run longer than one hour and must be staggered for the area to be cleaned. 

These guidelines can be problematic for some churches, said Bullock, who added that some African American preachers take about an hour to get started. He also pointed out that depending on the size of the temples and congregations, worshipers might not be able to attend God's House as often as they choose.  

"It is too intrusive. We know how to take care of ourselves," he said. "We don't need the government to tell us what to do, how long to do it and why to do it."

Muslim School Sues City Over Harassment At City Pool

A Muslim school in Wilmington, Delaware has filed suit against the city alleging religious discrimination against students in the school's summer day camp by personnel at the city's swimming pool.  According to yesterday's Delaware Public Media, pool workers harassed pre-school students in the summer program of Darul Amaanah Academy because of the students' religious attire. Pool workers say they were enforcing a no-cotton policy, but parents say that children were traumatized.

Court Says Priest-Penitent Privilege From Reporting Child Abuse May Be Unconstitutional

Delaware Code, Title 16, Chap. 9 requires reporting of suspected child abuse or neglect to authorities. Under Sec. 909, the only privileges that excuse reporting are the attorney-client privilege and the privilege "between priest and penitent in a sacramental confession."  State of Delaware v. Laurel Delaware Congregation of Jehovah's Witnesses, (DE Super., Jan. 26, 2016), is an enforcement action against elders of a Jehovah's Witness congregation who did not report a sexual relationship between a 14-year old boy and an adult female member of the congregation.  Defendants' motion to dismiss raised the question of whether this priest-penitent privilege applies to these elders. The court held that if the privilege language is read narrowly, it is unconstitutional because it creates an exception only for certain religious denominations.  Even if read more broadly to cover similar kinds of conversations with clergy, here the conversations with elders were for the purpose of seeking spiritual advice and counsel, and were likely not for the purpose of penitence. Reveal reports on the decision.