Update: Cap on worship size removed June 5

Editor’s note: The City of Madison and Dane County removed the 50-person cap on in-person religious services. In response, Bishop Donald Hying offered the following statement:

“We are pleased that the County and the City have ended the unequal 50-person cap on religious gatherings. As bishop, it is my 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. Indeed, in a time of deep division, it is more important than ever for the Church to provide solace and comfort to all, in the great tradition of American religious freedom. We look forward to working together with the County and City to continue the reopening process in a safe, cooperative, and responsible manner.”

This story will soon be updated to reflect the new ruling.

MADISON, Wis. — The 50-person cap instituted by local city and county officials for houses of worship in their reopening plans “has unjustly stifled our pastoral mission,” Madison Bishop Donald J. Hying said in a statement.

(CNS photo | Courtesy Catholic Herald)

On behalf of Bishop Hying and the diocese, Washington-based religious liberty law firms wrote to Madison and Dane County officials June 3 demanding “equal treatment” for the Catholic Church. They said that government protocols restricting crowd size as part of a reopening process in response to the slowing of COVID-19 are treating protests and movie theaters “better than churches.”

“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,” Bishop Hying said. “We are ready and able to answer that call, but the 50-person cap has unjustly stifled our pastoral mission.”

“Our diocese has been, and remains, committed to promoting and protecting the health and safety of our fellow Madisonians,” the bishop added, “but the county and city have wrongly subordinated the spiritual needs of the community to the operations of nonessential businesses.”

In their letter, Becket, a nonprofit religious liberty law firm based in Washington, and the Sidley Austin and Troutman Sanders global law firms, which also are based in Washington, said the church “has been a good public citizen” through the pandemic.

“It suspended public worship before the law required, and continues to impose greater operational restrictions than required,” the letter said. “At the same time, the church has continued its ministry to the sick, the poor, and the incarcerated as best as possible, while generally supporting the unprecedented restrictions that public health officials have deemed necessary to combat the novel coronavirus.”

The firms said that thankfully the city of Madison and Dane County are “beginning the process of reopening.” However, they said in the government order outlining reopening protocols, “only religious organizations are singled out by having their core “everyday operation” — religious worship services — uniformly designated as “‘mass gatherings’ automatically subject to the 50-person cap without regard to the size or configuration of the venue.”

City and county officials released what they titled the “Forward Dane” executive order May 18 which listed houses of worship as “essential services,” allowing them to resume in-person services at 25% capacity. The Madison Diocese “quickly put together a plan for safely reopening with rigorous social distancing and hygiene protocols developed in accordance with the Centers for Disease Control and the World Health Organization guidelines,” the firms noted.

But after the diocese “announced its careful plan,” they said, the government officials “in an abrupt and inexplicable reversal” added a new restriction on houses of worship — limiting them to just 50 people at each religious service regardless of the size of the building.

For some churches this means a 5% capacity, “while trampoline parks, movie theaters and virtually all other entities can operate to at least 25%,” the firms said.

The firms’ letter said the Catholic Church had “no particular interest in litigation or in a protracted dispute or an uncooperative relationship with civil authorities,” and wanted to work with officials to ensure Mass is celebrated with all safety precautions already laid out by the diocese.

“However, the church is legally and morally entitled to be treated equally with other similarly situated nonreligious associations that have been permitted to reopen up to 25% capacity,” the firms said. “The church stands ready to resume public Masses under that standard, and subject to rigorous social distancing and hygiene practices.”

They also noted that “for months, religious entities in Dane County — and indeed, throughout Wisconsin and the entire United States — have accepted extraordinary restrictions on their religious freedom” because of a nearly universal shutdown caused by the pandemic.

The letter was sent by email and also hand-delivered to Dane County Executive Joseph T. Parisi, Madison Mayor Satya Rhodes-Conway and Janel Heinrich, who is public health director for Madison and Dane County.

The Madison Diocese’s territory includes Dane County and 10 other counties in the southwest corner of Wisconsin. The city of Madison is the county seat and also the state capital. Population wise, Dane County is the largest county in the diocese and second-most populous county in Wisconsin. It has a population of close to 547,000.