A federal judge has ruled that two Denver-area churches may not be held to stricter capacity limits and mask-wearing rules than other businesses, although some religious leaders declined to welcome it as a positive development.

“Judaism teaches that pikuach nefesh — saving a life — is the highest principle. To exceed safe numbers and to not require masks is a flagrant violation of this principle,” said Rabbi Rachel Kobrin of Denver’s Congregation Rodef Shalom.

“I do not see these decisions as political or that the state of Colorado is trying to stifle us,” said the Rev. Ronald Patrick Raab, pastor of Sacred Heart Parish in Colorado Springs. His church conducts eight Masses per weekend with 50 people each, per state guidelines.

“All of my decisions are based on the fact that we are facing a world-wide pandemic, a virus that still remains a mystery for the most part. We are not sure of the long-term effects,” he added. “Every individual heals at a different rate. How the virus is spread also still remains much of a mystery. So we are adhering to these guidelines until further notice.”

In August, Denver Bible Church in Wheat Ridge and Community Baptist Church in Brighton filed a complaint against the Trump and Polis administrations, challenging state-level health orders as being void due to their vagueness and infringements upon religious freedom. The churches also alleged that the health orders “restrict or prevent religious speech” based on “how closely Plaintiff Pastors can be to persons in their congregations, and in how closely congregants can be to each other, to meet, pray, talk, stand, sit, walk, sing, pray, embrace, shake hands, smile or facially express their thoughts, opinions and emotions.”

In an order issued on Oct. 15, U.S. District Judge Daniel D. Domenico believed the plaintiffs would not succeed at trial in proving the majority of their claims against the government, but did grant a temporary restraining order preventing the state from enforcing the face covering mandate and capacity limits against the two churches.

“The court does not doubt that the State made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it,” Domenico wrote. “But the Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant’s or spa’s.”

Frederick R. Yarger, who has known Domenico for years and succeeded Domenico as Colorado’s solicitor general, said the judge wrote “a careful decision that threads the needle.”

“It applies only to churches engaged in worship,” Yarger explained. “This ruling doesn’t suggest that businesses themselves will be more successful in getting COVID-related regulations struck down. Religious organizations have special constitutional protection.”

Domenico’s ruling applied to provisions in an Oct. 8 health order that had, in his view, no compelling reason for restricting the free exercise of religion guaranteed in the First Amendment. Organizations generally have to maintain a maximum of 50% capacity, not to exceed 50 people.  Businesses deemed critical are ordered to comply with the public health order “to the greatest extent possible.”

Domenico took this to mean such businesses were exempt from capacity limits, to the detriment of religious institutions.

“In other words, the JBS meat-packing plant in Greeley, the Amazon warehouses in Colorado Springs and Thornton, and your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement,” he wrote.

Domenico likewise took issue with exemptions to masking requirements for those receiving some personal services or eating at restaurants, but with no similar allowance for removal of masks in churches when purportedly needed for the free exercise of religion.

The judge acknowledged “the Constitution doesn’t kneecap a state’s pandemic response,” and that the uncertainty during the early days of the pandemic merited less judicial second-guessing of COVID-19 restrictions. He also clarified that churches will still have to abide by an array of generally-applicable health requirements, such as distancing and sanitization.

One day after issuing the temporary restraining order, Domenico denied the Polis Administration’s request to stay, or suspend, the decision until an appeals court had time to weigh in. The judge believed the state of Colorado was unlikely to prevail on the merits of their appeal, and had not successfully argued why the state should permit unmasked diners in restaurants but not unmasked congregants.

Brad Bergford and Rebecca Messall brought the case on behalf of the churches through the Thomas More Society, a conservative law firm that provides pro bono services. Bergford said the churches “plan to exercise their religious liberties” in response to the ruling, and declined to speculate about whether other organizations would now have a foundation to similarly challenge the health orders.

“Our clients would not tell other churches how to respond in a given situation — even this one,” he said. “That is for those churches to determine. And that’s a good deal of the point here. The right and freedom to worship according to one’s religious beliefs is essential to our constitutional system.”

University of Denver law professor Alan Chen agreed that courts scrutinize to the greatest degree those laws that allegedly discriminate on the basis of religion. “Whether this holds up on appeal will largely turn on whether the appellate court agrees with the trial court that record shows that the regulations discriminate on religious, rather than public health, grounds,” he said.

The Denver Post reported that Colorado’s appeal of the decision charged Domenico with taking scientific evidence out of context, and asserted the public health orders do not amount to discrimination based on religion.

Although Yarger, the former solicitor general, said in March that courts would likely find COVID-19 restrictions lawful as long as the emergency was real, he explained on Wednesday that “as time goes on and we learn more about COVID, I think judges will be more sensitive to core constitutional rights, including religious freedom. Regulators have leeway to regulate businesses to protect health and safety. But they have to be careful when they limit religious activities — even if they mean well.”

The Right Rev. Rev. Kimberly D. Lucas of the Episcopal Church in Colorado, on the other hand, saw no tension between the government’s COVID-19 restrictions and the spiritual duties of her congregation.

“I consider the governor’s orders, which are based on scientific evidence regarding the spread of the COVID-19, the bare minimum we can do,” she said. “We follow a savior that said, ‘If anyone forces you to go one mile, go with them two miles.’ To that end, I’ve asked congregations to go above and beyond the minimum: wearing masks, physical distancing, limiting time together indoors, because that is what walking in love demands.”

The case is Denver Bible Church et al. v. Azar et al.

A federal judge has exempted two churches from the state’s mandate on wearing masks indoors and cap on the number of people at indoor gatherings, public health orders intended to slow the spread of the coronavirus, but seen by some as discrimination and a violation of First Amendment guarantees of religious freedom.

In August, Denver Bible Church in Wheat Ridge and Community Baptist Church in Brighton filed a complaint challenging state health orders as being void due to their vagueness and infringements upon religious freedom. The churches also alleged that the health orders “restrict or prevent religious speech” based on “how closely plaintiff pastors can be to persons in their congregations, and in how closely congregants can be to each other, to meet, pray, talk, stand, sit, walk, sing, pray, embrace, shake hands, smile or facially express their thoughts, opinions and emotions.”

In an order issued on Oct. 15, U.S. District Judge Daniel D. Domenico said he didn’t believe the plaintiffs would succeed at trial in proving the majority of their claims against the government, but did grant a temporary restraining order preventing the state from enforcing the face covering mandate and capacity limits against the two churches.

“The court does not doubt that the state made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it,” Domenico wrote. “But the Constitution does not allow the state to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant’s or spa’s.”

The crux of the judge’s ruling is that Gov. Jared Polis’ public health order treats houses of worship differently than secular establishments, such as public schools, and essential businesses, including Walmart and Amazon warehouses, or meat-packing plants, that pose an equal risk of spreading COVID-19. The decision comes as COVID-19 cases are spiking in many counties statewide, with Polis issuing a warning this week that continued increases could lead to more severe restrictions on daily life.

Whether the churches will prevail is up to the 10th Circuit Court of Appeals. The Colorado Attorney General’s Office on Monday filed an emergency motion for a stay, or suspension of the injunction, pending the outcome of an appeal.

“Nothing in the state defendants’ public health orders reveals discrimination or bigotry targeted at religion,” the motion states. “If anything, Colorado’s orders treat religious organizations more favorably than comparable organizations that are nonreligious. The Governor’s executive order requiring face masks in public places, for example, exempts individuals who are officiating at a religious service.”

The same issues have been raised by other churches, with some saying they would neither follow the mask mandate nor the limit on congregants. Andrew Wommack Ministries in Woodland Park also sued before holding Bible and ministers conferences this summer attended by hundreds of people. The Teller County health department sought to shut down both for violating state public health orders.

“I think it’s the right ruling,” said the Rev. Brady Boyd, pastor of New Life Church in Colorado Springs, which has 15,000 members in seven congregations. “The vast majority of churches are going through extraordinary measures to keep people safe, and the government restrictions are not necessary.”

But other religious leaders have said they can worship and protect people from a potentially deadly disease.

“Judaism teaches that pikuach nefesh — saving a life — is the highest principle. To exceed safe numbers and to not require masks is a flagrant violation of this principle,” said Rabbi Rachel Kobrin of Denver’s Congregation Rodef Shalom.

“I do not see these decisions as political or that the state of Colorado is trying to stifle us,” said the Rev. Ronald Patrick Raab, pastor of Sacred Heart Parish in Colorado Springs. His church conducts eight Masses per weekend with 50 people each, per state guidelines.

Cases mount: Religious rights lawsuits vs. COVID-19 restrictions

The Right Rev. Rev. Kimberly D. Lucas of the Episcopal Church in Colorado, saw no tension between the government’s COVID-19 restrictions and the spiritual duties of her congregation.

“I consider the governor’s orders, which are based on scientific evidence regarding the spread of the COVID-19, the bare minimum we can do,” she said. “We follow a savior that said, ‘If anyone forces you to go one mile, go with them two miles.’ To that end, I’ve asked congregations to go above and beyond the minimum: wearing masks, physical distancing, limiting time together indoors, because that is what walking in love demands.”

Domenico’s ruling was hailed as a victory by Mat Staver, founder of Liberty Counsel, the Florida-based nonprofit that engages in litigation related to evangelical Christian values and represented Wommack in its dispute with the county and state.

“This a major win for places of worship, the First Amendment and the people,” said Staver.

Judge grants restraining order to stop ministers conference in Woodland Park, citing public health order violations

Domenico’s ruling “really underscores what we’ve been arguing from the very beginning,” Staver said.

It also could negate the state and county health departments’ pending lawsuit against Wommack Ministries that seeks to prevent it from holding more conferences at its Woodland Park campus, Liberty Counsel attorneys will argue at a hearing on Tuesday, Staver said.

Andrew Wommack was not fined or cited for holding a family conference in July, which resulted in a cease-and-desist order from the state attorney general the day before the conference ended, nor for the ministers conference last month, which resulted in a temporary restraining order that was delivered after the conference ended on Oct. 5, Staver said.

The health departments argued that such an event put the public at great risk, citing a COVID-19 outbreak that they attributed to the family conference.

Liberty Counsel also plans to file a supporting brief in the appeals court backing Domenico’s decision, Staver said.

This article has been updated.