Complaint — CHBC v. Bowser

Record facts

U.S. District Court for the District of Columbia · No. 1:20-cv-02710 · Doc. 1 · 2020-09-22 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
CAPITOL HILL BAPTIST CHURCH, 
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525 A Street NE 
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Washington, DC 20002 
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Plaintiff, 
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Civil Action No. 
v. 
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MURIEL BOWSER, in her official 
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capacity as Mayor of the District of 
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Columbia, 
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John A. Wilson Building 
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1350 Pennsylvania Avenue, NW 
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Washington, DC 20004 
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DISTRICT OF 
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COLUMBIA, 
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c/o Karl A. Racine, Attorney General 
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400 6th Street, NW 
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Washington, DC 20001 
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Defendants. 
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PLAINTIFF’S ORIGINAL COMPLAINT 
Plaintiff Capitol Hill Baptist Church (“CHBC” or the “Church”) brings this action to stop 
Mayor Muriel Bowser and the District of Columbia (collectively, “Defendants”) from violating 
its rights under the First and Fifth Amendments to the United States Constitution and the 
Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq., and alleges as 
follows: 
I. Preliminary Statement
1.
Since February 27, 1878, when the first 31 members of CHBC covenanted
together at the corner of 6th and A Streets, NE in the District of Columbia, the Church’s 
members have gathered every Sunday for corporate worship a few blocks from this courthouse. 
1:20-cv-2710
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2. 
For CHBC, a weekly in-person worship gathering of the entire congregation is a 
religious conviction for which there is no substitute.  The Church does not offer virtual worship 
services, it does not utilize a multi-site model, and it does not offer multiple Sunday morning 
worship services.   
3. 
In March of this year, District of Columbia Mayor Muriel Bowser issued an 
executive order that, among other things, prohibited CHBC from gathering as one for in-person 
worship, whether indoors or outdoors.   
4. 
Now, six months later, that ban on CHBC’s corporate worship gatherings remains 
in effect in the District of Columbia.  The Mayor’s orders prohibit gatherings of over 100 people 
for purposes of worship, even if held outdoors and even if worshippers wear masks and practice 
appropriate social distancing.  Under the District’s four-stage plan, CHBC’s in-person worship 
gatherings will be prohibited until scientists develop either a widely-available vaccine or an 
effective therapy for COVID-19. 
5. 
In hopes of resuming its corporate worship gatherings in the District of Columbia, 
CHBC filed an application with the Mayor’s Office on June 10, 2020, seeking a waiver from 
Mayor Bowser’s prohibition on large gatherings.  Despite the Church’s repeated outreach to the 
Mayor’s Office, both directly and through its city councilman, and a resubmittal of the waiver 
request on September 1, 2020, the District refused to rule on the Church’s application for months 
before rejecting the application last week, leaving CHBC subject to the Mayor’s executive order, 
the violation of which is punishable by civil and administrative penalties. 
6. 
Meanwhile, Defendants have been discriminatory in their application of the ban 
on large scale gatherings.  For example, on June 6, 2020, Mayor Bowser appeared personally at 
an outdoor gathering of tens of thousands of people at the corner of 16th and H Streets, NW and 
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delivered a speech describing the large gathering as “wonderful to see.”  Similarly, on four 
occasions between June and August 2020, the District’s Metropolitan Police Department closed 
city streets to accommodate protests and marches of thousands to tens of thousands of people.  
And only three weeks ago, the Mayor coordinated with organizers of the Commitment March on 
Washington to “re-imagine” the five-hour event on the steps of the Lincoln Memorial for several 
thousand people in attendance to hear an array of speakers. 
7. 
The Church takes no issue with Defendants’ decision to permit these gatherings, 
which are themselves protected by the First Amendment, and the Church supports this exercise 
of First Amendment rights.  The Church does, however, take exception to Defendants’ decision 
to favor certain expressive gatherings over others.  The First Amendment protects both mass 
protests and religious worship.  But Mayor Bowser, by her own admission, has preferred the 
former over the latter.  When asked why she celebrates mass protests while houses of worship 
remain closed, she responded that “First Amendment protests and large gatherings are not the 
same” because “in the United States of America, people can protest.”  In the United States of 
America, people can gather for worship under the First Amendment as well. 
8. 
Faced with the District’s discriminatory treatment and with no end in sight to the 
legal ban on worship gatherings, CHBC’s membership reluctantly voted to initiate this lawsuit to 
reclaim their most fundamental of rights: the right to gather for corporate worship free from 
threat of governmental sanction. 
9. 
The District’s now six-month ban on CHBC’s religious gatherings, even if held 
outdoors with appropriate precautions, violates RFRA and the First and Fifth Amendments to the 
United States Constitution.   
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II. Parties 
10. 
Capitol Hill Baptist Church, founded in 1878, is a Christian church in 
Washington, DC.  It is incorporated in the District of Columbia and has a principal office located 
at 525 A Street NE, Washington, DC 20002. 
11. 
Defendant Muriel Bowser is and was at all times relevant hereto the duly-elected 
Mayor of the District of Columbia and as such was responsible for the promulgation and 
implementation of the policies, procedures, and practices of the District of Columbia.  She is 
named as a defendant in this action in her official capacity as Mayor.  
12. 
Defendant District of Columbia is and was at all times relevant hereto a municipal 
corporation and was and is responsible for the policies, procedures, and practices implemented 
through its various agencies, agents, departments, and employees.  
III. Jurisdiction and Venue 
13. 
The Court has subject matter jurisdiction under 28 U.S.C. § 1331 and 42 U.S.C. 
§ 1983 because CHBC alleges an ongoing and imminent violation of its rights under the 
Constitution of the United States and RFRA.   
14. 
The Court may declare the legal rights and obligations of the parties in this action 
pursuant to 28 U.S.C. § 2201 because the action presents an actual controversy within the 
Court’s jurisdiction. 
15. 
Venue is proper in this judicial district under 28 U.S.C. § 1391(b).  All 
Defendants are residents of and/or perform their official duties in this district.  In addition, a 
substantial part of the events giving rise to the claims in this Complaint arose in this district 
because the prohibition of CHBC’s services will be enforced in this district, because some or all 
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of its members reside in this district, and because some or all of the actions of the Defendants 
that are the subject of this Complaint occurred in this district.   
IV. Facts 
A. Plaintiff Capitol Hill Baptist Church  
16. 
CHBC is “an evangelical community of believers.”  Capitol Hill Baptist Church, 
About Us, https://www.capitolhillbaptist.org/about-us/ (last accessed September 21, 2020).   
17. 
CHBC believes that if the Bible is the cornerstone of its church, “membership is 
the cement” that holds the church together.  Capitol Hill Baptist Church, Membership, 
https://www.capitolhillbaptist.org/connect/membership/ (last accessed September 21, 2020).  As 
of the date of the filing of this Complaint, CHBC has 853 members, 61% of whom live in the 
District of Columbia. 
18. 
On a typical Sunday prior to the outbreak of COVID-19, CHBC had 
approximately 1,000 people attend its Sunday morning worship service. 
19. 
Dr. Mark Dever has served as the senior pastor of CHBC since 1994.  Capitol Hill 
Baptist Church, Leadership & Staff: Mark Dever, https://www.capitolhillbaptist.org/about-
us/leadership-staff/member/1267131/ (last accessed September 21, 2020).  Dr. Dever holds a 
number of advanced degrees, including a doctorate in ecclesiastical history from Cambridge 
University.  Dr. Dever has written and spoken extensively on the theological significance of a 
church’s weekly in-person worship gathering of the entire congregation. 
B. The Significance of Gathering  
20. 
For nearly 2,000 years, Christians have gathered each Sunday throughout the year 
in observance of Christ’s resurrection from the dead on the first day of the week, and the 
physical gathering of the church is central to that celebration.  Indeed, the Greek word translated 
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as “church” in our English versions of the Christian scriptures is “ekklesia,” which literally 
means “assembly.”  A.T. Robertson, A GRAMMAR OF THE GREEK NEW TESTAMENT IN THE LIGHT 
OF HISTORICAL RESEARCH (3d ed. 1919). 
21. 
As with other communities of Christian faith around the country, CHBC believes 
that a central part of following Christ is worshipping together in the same physical space.  This 
belief derives, in part, from the exhortation found in the Christian scriptures that believers “not 
forsak[e] the assembling of ourselves together.”  Hebrews 10:25 (KJV). 
22. 
CHBC has a church covenant, which is a statement of how the church agrees to 
live as a church.  See Capitol Hill Baptist Church, Church Covenant, 
https://www.capitolhillbaptist.org/about-us/what-we-believe/church-covenant/ (last accessed 
September 21, 2020).  The church covenant is reaffirmed at all members’ meetings and before 
taking communion.  In the church covenant, CHBC members agree, consistent with Scripture, 
that they “will not forsake the assembling of [them]selves together.”  Id. 
23. 
For CHBC, having more than one gathering or assembly means that a local 
church ceases to be one church.  For instance, in his 2012 book The Church: The Gospel Made 
Visible, Dr. Dever stated that a “biblically ordered church regularly gathers the whole 
congregation” because “without regularly meeting together, it ceases to be a biblically ordered 
church.”  Id. at 135 (emphasis added).   
24. 
Prior to the COVID-19 outbreak, CHBC’s leaders had made a convictional choice 
not to hold multiple services, instead capping attendance at the capacity of its auditorium.  After 
the COVID-19 outbreak, on March 13, 2020, Dr. Dever decided not to live stream sermons for his 
congregation during the COVID-19 pandemic because “a video of a sermon is not a substitute for 
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a covenanted congregation assembling together.”  See 
https://twitter.com/MarkDever/status/1238527208702050306. 
25. 
CHBC thus has a sincerely held religious belief that the physical, corporate 
gathering of its entire congregation each Sunday is a central element of religious worship 
commanded by the Lord.  CHBC desires to gather for a physical, corporate gathering of believers 
in the District of Columbia on Sunday, September 27, 2020, and on subsequent Sundays, and 
would do so but for those actions of the Defendants that are the subject of this Complaint. 
C. Prohibitions of Mass Gatherings 
26. 
On March 11, 2020, Defendant Muriel Bowser, in her official capacity as the 
Mayor of the District of Columbia, issued both Mayor’s Order 2020-045 (declaring a public 
emergency) and Mayor’s Order 2020-046 (declaring a public health emergency) due to the 
COVID-19 outbreak.   
27. 
As COVID-19 spread across the country, on March 24, 2020, Mayor Bowser 
issued Mayor’s Order 2020-053, which mandated the closure of all non-essential businesses and 
prohibited all “large gatherings.”  The Order defined “large gatherings” as “any event or 
convening … that bring together or are likely to bring together ten (10) or more persons at the 
same time in a single room or other single confined or enclosed space.”  The prohibition on large 
gatherings also included all events or activities with ten or more persons in confined outdoor 
spaces.   
28. 
While the Mayor’s March 24th Order itself did not specifically mention churches, 
temples, mosques, synagogues, or other houses of worship—and thus did not expressly close 
them—it did by implication.  As the “Additional Information” contained on the District’s 
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COVID-19 website made clear, churches were not considered an “essential” entity by the 
District and were prohibited from performing worship services under the Order: 
Q: Did the Mayor close churches?    
No, but large gatherings of ten or more people are prohibited, so as a practical 
matter, most churches are not holding services.  Weddings and funerals may only 
be 10 or fewer people.  Houses of worship can maintain basic business operations, 
and many open their doors to people who walk in who want a quiet place to 
pray alone.  Many congregations are also maintaining their social service 
programs to deliver essential items like food to people who are at home or 
helping others get to medical appointments.  
  
29. 
Mayor’s Order 2020-053 also provided that “[a]ny individual or entity that 
knowingly” violated the Order would be “subject to all civil, criminal, and administrative 
penalties authorized by law, including sanctions or penalties for violating D.C. Official Code 
§ 7-2307, including civil fines, summary suspension or revocation of licensure.”   
30. 
Six days later, on March 30, 2020, Mayor Bowser issued a Stay at Home Order, 
directing “[a]ll individuals living in Washington, DC … to stay at their place of residence, except 
as specified in this Order.”  The Stay at Home Order exempted travel to essential businesses, as 
well as to non-essential businesses to maintain minimum business operations.  It also exempted 
“essential travel,” which did include “[t]ravel required to visit a house of worship.”  However, as 
the “Frequently Asked Questions on Stay at Home Order” published on the District’s official 
COVID-19 website made clear, “large gatherings of ten or more people are prohibited, so as a 
practical matter, most churches are not holding services.”      
31. 
After multiple extensions of the Stay at Home Order, on May 27, 2020, the Mayor 
issued the District’s Phase One reopening order, in which “certain activities—where the risk of 
transmission has been determined to be low and when strong safeguards are in place—are being 
allowed to restart.”  While the Stay at Home Order’s prohibition on travel was lifted under Phase 
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One, “[l]arge gatherings of more than ten (10) individuals continue[d] to be prohibited in the 
District, with the same caveats and exceptions set forth in prior Orders.”   
32. 
The Phase One order also exempted new types of gatherings, however.  For 
instance, barbershops and hair salons were allowed to operate with no cap on the number of 
people allowed in a building or room so long as there was no more than one customer per stylist 
and customers maintained six feet separation from each other.  Outdoor dining at licensed 
establishments was also allowed, as was going to a farmers’ market, park, dog park, tennis court, 
or track, all with no limit on the number of persons.  The only limits were that individual groups 
of persons had to consist of ten or fewer (though multiple groups of ten persons could be in the 
park or field, etc.), and social distancing guidelines of six feet between groups needed to be 
maintained.   
33. 
Notably, in Phase One, the District allowed “streateries” and other outdoor 
restaurants to operate with no limit on the number of people they could serve, other than what 
social distancing required and in accordance with Alcoholic Beverage Regulation Administration 
guidelines.  None of these entities were subject to the Mayor’s large gathering prohibition.  And 
even the social distancing guidelines were different for outdoor restaurants than they were for 
other entities:  the “physical distancing and safeguard measures … generally include minimum 
buffers of 4 and 6 feet between pedestrians/customers and seating area/tables,” as opposed to six 
feet between persons or groups in non-exempted buildings.  As of September 11th, there are 583 
Streatery registrations, which includes 439 alcohol licensees, 55 restaurants without alcohol, 20 
retailers, and 69 community organization requests. 
34. 
Under the Phase One Order, the Mayor did not remove the prohibition on 
gatherings of ten or more persons, indoors or outdoors, with regard to houses of worship.  
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Instead, they remained under threat of “civil and administrative penalties authorized by law, 
including sanctions or penalties for violating D.C. Official Code § 7-2307, including civil fines 
or summary suspension or revocation of licenses.”   
35. 
Effective June 22, 2020, the Mayor announced Phase Two of the District’s 
reopening via Mayor’s Order 2020-075.  Phase Two repealed the large gathering prohibition in 
place since March 24th and replaced it with a prohibition on mass gatherings of over fifty 
persons, subject to exceptions.  One of these new exceptions was for indoor dining.  In Phase 
Two, licensed restaurants could now open indoor seating at 50% capacity, while outdoor dining 
had no capacity restrictions, subject only to distancing guidelines.  Other new exceptions in 
Phase Two included: 
 Gyms and other fitness facilities opened, with no maximum capacity limit, subject only to 
a capacity requirement of five people per 1,000 square feet of space.   
 Childcare centers could resume operations with the same staff/child ratios as prior to the 
COVID-19 pandemic.  While the number of children allowed to be grouped in one room 
indoors was limited to 10-11 people (11 with a second staff member), there is no limit on 
the total amount of persons allowed in a childcare building.  For outdoor activities, groups 
of 10-11 may run and play together, with no limit on the total number of groups that may 
be in an outdoor area, other than requiring groups to stand greater than six feet apart.   
 Summer camps have similar group restrictions as childcare facilities, but they are allowed 
to have groups of 12-13, and again, have no limits on the total number of groups that may 
be inside a building or in an outdoor space, other than requiring separate groups to socially 
distance from each other.   
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36. 
By contrast, in Phase Two, “[p]laces of worship are encouraged to continue 
providing virtual services as everyone is safer at home.  Participation limited to virtual 
worship services is especially recommended for older adults and people of all ages with 
chronic medical conditions who are at higher risk for severe illness from COVID-19.”  
Houses of worship, which have a constitutional right to gather, are the only entity expressly 
encouraged to continue meeting virtually in Phase Two.    
37. 
In addition to officially and expressly encouraging congregants to not meet in-
person and exercise their constitutional rights to worship in-person as a corporate body, 
Defendants also subjected places of worship to a capacity restriction of “fifty percent (50%) of 
the capacity of the facility or space where the service is occurring as set forth in its Certificate of 
Occupancy, or one hundred (100) persons, whichever is fewer.  Groups of persons attending 
together must not exceed ten (10) persons.  Each group must be seated at least six (6) feet from 
each other group.”  Importantly “[t]hese limits apply to indoor and outdoor services.” 
38. 
Violators of Mayor’s Order 2020-075 are “subject to civil and administrative 
penalties authorized by law, including sanctions or penalties for violating D.C. Official Code 
§ 7-2307, including civil fines or summary suspension or revocation of licenses.” 
39. 
The public emergency and public health emergency declared by Mayor Bowser in 
March 2020 have been extended several times.  Most recently, Mayor’s Order 2020-079, issued 
on July 22, 2020, extended the states of emergency from July 24, 2020 to October 9, 2020. 
40. 
As of the date of the filing of this Complaint, the District remains in Phase Two of 
reopening.  Mayor Bowser has said that there is no timetable for the District to enter the third 
phase of its reopening plan; her latest suggestion is that it would not occur until children are back 
in school (which is tentatively scheduled for November). 
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41. 
Even in Phase Three, however, houses of worship would be capped at 250 
attendees according to recommendations from the ReOpen DC Advisory Group, a group 
constituted by Mayor Bowser to provide recommendations for reopening that can then be 
operationalized by Defendants. 
42. 
According to the current ReOpen DC recommendations, the 250-attendee limit 
would only be lifted during Phase Four, which would require an effective COVID-19 vaccine or 
therapy. 
D. Mass Protests  
 
43. 
From May 29, 2020 to June 22, 2020, the District of Columbia was in Phase One 
of reopening during which large gatherings of more than ten individuals were prohibited, subject 
to certain exceptions.  Mass protests were not such an exception. 
44. 
On Saturday, June 6, 2020, however, tens of thousands of people gathered for a 
mass protest in and around 16th and H Streets, NW in the District.   
45. 
Mayor Bowser attended the mass protest and said to the thousands in attendance, 
“It’s so wonderful to see everyone peacefully protesting, wearing their masks.”   
46. 
Defendants further facilitated the June 6 mass protest by closing dozens of city 
streets to vehicular traffic on that day in order to accommodate the “First Amendment 
demonstrations.”   
47. 
On information and belief, Defendants appropriately recognized First Amendment 
rights and did not cite a single participant in the June 6 mass protest for a violation of the Phase 
One prohibition on large gatherings. 
48. 
On Sunday, June 7, 2020, thousands of protesters again converged in the District 
for a mass protest.  This protest included a march of several hundred people from Southeast 
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Washington along a closed-down street leading to the White House with an escort of police on 
motorcycles.  The march began with a Christian invocation and prayer for forgiveness by David 
Platt, pastor of one of the nation’s largest and most high-profile evangelical churches, McLean 
Bible Church.  As the march proceeded, participants sang, prayed, and banged tambourines.  The 
march proceeded to the reflecting pool on the west side of the Capitol building, where the 
participants gathered in close proximity for an hour to hear from a variety of speakers. 
49. 
On information and belief, Defendants appropriately recognized First Amendment 
rights and did not cite a single participant in the June 7 mass protest for a violation of the Phase 
One prohibition on large gatherings. 
50. 
On Sunday, June 14, 2020, thousands of protesters participated in a mass protest 
at 16th and H Streets, NW.  This protest took the form of a religious ceremony, with thousands 
of worshipers praying, protesting, kneeling and dancing on the street.  The Washington Post 
described the event as transforming the area “into a church” and as “a kaleidoscope of prayers, 
chants, singing and preaching from Jewish, Hindu, Muslim, Sikh and Christian faith leaders who 
joined in a multifaith effort to bless the protest movement.”  At this mass protest, people bunched 
up in places.   
51. 
Defendants endorsed and facilitated the June 14 mass protests by closing dozens 
of city streets to vehicular traffic in order to accommodate the First Amendment demonstrations.   
52. 
On information and belief, Defendants appropriately recognized First Amendment 
rights and did not cite a single participant in the June 14 mass protest for a violation of the Phase 
One prohibition on mass gatherings. 
53. 
On June 19-21, 2020, many mass protests coinciding with Juneteenth took place 
throughout the District of Columbia.  One of the protests on June 19 was a march organized by 
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the Washington Wizards and Washington Mystics professional basketball teams, attended by a 
crowd of thousands.  At another June 19 Juneteenth mass protest, hundreds of people marched 
from Freedom Plaza to the United States Department of Education.  The mass protests continued 
on Saturday, June 20 and Sunday, June 21, including a convention of hundreds on the National 
Mall.   
54. 
Defendants endorsed and facilitated the Juneteenth mass protests by closing 
dozens of city streets to vehicular traffic on those three days in order to accommodate the First 
Amendment demonstrations.   
55. 
On information and belief, Defendants appropriately recognized First Amendment 
rights and did not cite a single participant in the Juneteenth mass protests for a violation of the 
Phase One prohibition on large gatherings. 
56. 
Since June 22, 2020, the District of Columbia has been subject to Defendants’ 
Phase Two restrictions, which prohibit gatherings of more than 50 people.  On July 31, 2020, 
however, Mayor Bowser issued guidance for persons planning to attend the Commitment March, 
an August 28, 2020 mass gathering of well in excess of 50 people.  Mayor Bowser’s guidance 
did not reference Defendants’ Phase Two restrictions on mass gatherings or indicate that the 
Commitment March would be subject to these restrictions.   
57. 
On August 17, 2020, Mayor Bowser announced that the Commitment March had 
been “re-imagined” and that the march would take the form of “a seated event where the number 
of seats would be limited, people would be checked going into the seated area.”   
58. 
On August 28, 2020, thousands of protesters gathered at the Lincoln Memorial to 
participate in the Commitment March, which lasted approximately five hours.   
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59. 
Defendants further endorsed and facilitated the Commitment March by 
announcing that dozens of city streets would close to vehicular traffic to accommodate the event.   
60. 
On information and belief, Defendants appropriately recognized First Amendment 
rights and did not cite a single participant in the Commitment March for a violation of the Phase 
Two prohibition on mass gatherings. 
E. CHBC’s Attempts to Meet in the District 
61. 
On June 10, 2020, CHBC submitted a request to the District of Columbia for a 
waiver from Defendants’ restrictions on large gatherings.  The request noted that, based on 
CHBC’s “theological convictions,” its “ability to meet together in person as a church is of the 
essence of what it means to be a church.”  It also stated that, for all practical purposes, “if a 
church cannot meet in an assembly it does not exist.”  It explained that “since the Mayor first 
requested that churches cease holding services, it has been [CHBC’s] theological judgment not to 
hold any services—online or in person—nor have we been able to perform the Christian 
ordinances of baptism or communion.”  This has been, the request concluded, “a substantial 
burden on” CHBC’s congregation, “most of whom live in the District of Columbia.”  The 
request asked for “a waiver so that [CHBC] can meet outside of a building in a manner 
consistent with the current guidance applicable to outdoor restaurants.”  In the request, CHBC 
pledged to “ensure that each household is distanced by at least six feet” and “instruct all 
individuals above the age of ten years to wear masks for the duration of the service.” 
62. 
During the course of June, Jamie Dunlop, a pastor at CHBC, had multiple 
conversations with Thomas Bowen in Mayor Bowser’s Office of Religious Affairs.   
63. 
After several months passed and CHBC had not received a response on its waiver 
request (or any other communication from the Mayor’s Office), CHBC submitted an updated 
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request on September 1, 2020.  The updated request noted that CHBC had been told that it could 
use an outdoor space near RFK Stadium that “would very comfortably accommodate” its 
congregation, but only if CHBC had a waiver from the District of Columbia government.  The 
request again asked for “a waiver so that [CHBC] can meet outdoors in a manner consistent with 
the current guidance applicable to outdoor service at restaurants.”  CHBC pledged to “ensure that 
each household is distanced by at least six feet” and “instruct all individuals without medical 
exemptions above the age of two years to wear masks for the duration of the service.” 
64. 
On September 2, 2020, Pastor Dunlop from CHBC contacted Nichole Opkins 
from Councilmember Charles Allen’s office, informing her that CHBC had never received a 
reply to its June 10 waiver application and that CHBC had submitted an updated request the day 
before.   
65. 
On September 15, 2020, the District of Columbia rejected CHBC’s request for a 
waiver.  The denial letter thanked CHBC for providing information about its “social distancing 
plan, and other measures to mitigate the risk of spread of COVID-19.”  Noting that the Phase 
Two Order’s capacity limits for places of worship were “double the District’s current prohibition 
on mass gatherings of more than fifty (50) persons,” the letter stated that “[w]aivers for places of 
worship above that expanded capacity are not being granted at this time.”  To the extent CHBC’s 
request was to operate above those gathering limits, the letter concluded, its request “is denied.” 
66. 
Meanwhile, on June 27, 2020, the District of Columbia granted a waiver request 
for a different type of expressive gathering protected by the First Amendment.  Earlier in June, 
two local companies had requested a waiver to operate a pop-up drive-in movie theater at RFK 
Stadium in a desire “to bring people together in D.C.”  The D.C. Homeland Security and 
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Emergency Management Agency approved the waiver request, allowing the drive-in gathering to 
hold up to 350 socially distanced vehicles. 
67. 
The District of Columbia Department of Health has been tracking and reporting 
the incidence of COVID-19 infections in the District.  According to the Department of Health 
website, the District has experienced 334 new cases of COVID-19 in the last week, out of a city 
with a population of over 705,000.  The District also has reported hitting its reopening goals for 
ability to contact trace new cases, ability to contact trace close contacts, sustained low positivity 
rate, sustained low transmission rate, and utilization of hospitals. 
68. 
Despite the reduced presence of COVID-19 in its community, CHBC remains 
committed to emphasizing safety in its gatherings with social distancing precautions in order to 
ensure the safety and well-being of its congregants.  Specifically, CHBC will consider health 
officials’ recommended precautions in the conduct of its services. 
69. 
These precautions will provide strong protection for the health of the church 
community and others by preventing contact and ensuring against the transmission of disease 
through the service. 
V. First Cause of Action 
The Free Speech Clause of the First Amendment to the U.S. Constitution 
 
70. 
Paragraphs 1 through 69 are hereby incorporated as if set forth fully herein. 
71. 
The First Amendment of the Constitution prohibits governmental action 
“abridging the freedom of speech.”  The Free Speech Clause applies “with equal vigor” to the 
District of Columbia.  Espresso, Inc. v. Dist. of Columbia, 884 F. Supp. 7, 9 (D.D.C. 1995). 
72. 
Under that Clause, a government, including a municipal government, “has no 
power to restrict expression because of its message, its ideas, its subject matter, or its content.”  
Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015).  CHBC’s religious worship gatherings 
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are quintessential protected expression.  See, e.g., Good News Club v. Milford Central School, 
533 U.S. 98 (2001) (recognizing that forum restriction on an organization that taught Bible 
verses to children via stories, games, and prayer was a restriction on the freedom of speech). 
73. 
Defendants’ selective enforcement of its rules against mass gatherings has created 
a de facto exemption for mass protests.  The existence of a de facto exemption is further 
evidenced by Mayor Bowser’s encouragement of (and participation in) the protests while 
discouraging others from violating the mass gathering limitations.  
74. 
An exemption even from a permissible regulation of speech diminishes the 
credibility of the government’s rationale for restricting speech in the first place.  See City of 
Ladue v. Gilleo, 512 U.S. 43, 51-53 (1994).  When a law or policy is selectively enforced or 
subject to exceptions, it suggests that content discrimination is afoot.  Id. at 52. 
75. 
A content-based exemption from a ban is no less a content-based distinction 
because it is phrased as exempting certain speech from a ban rather than as imposing the 
restriction only on the burdened class of speech.  See City of Ladue, 512 U.S. at 48-53; City of 
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993). 
76. 
Content-based restrictions “are presumptively unconstitutional and may be 
justified only if the government proves that they are narrowly tailored to serve compelling state 
interests.”  Reed, 576 U.S. at 163. 
77. 
Defendants’ actions are not “narrowly tailored” because they burden substantially 
more speech than is necessary to further the government’s legitimate interests.  See McCullen v. 
Coakley, 573 U.S. 464, 486 (2014).  CHBC is willing to follow social distancing and other 
hygiene requirements, yet Defendants forbid CHBC from holding services with more than 100 
attendees even though they allow far larger mass protests.  In other words, Defendants have 
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shown they can accomplish their interest in more narrow ways than outright forbidding religious 
gatherings of greater than 100 attendees. 
78. 
Creating an exception for mass protests and not other types of First Amendment 
activities is constitutionally forbidden content-based discrimination and thus violates CHBC’s 
free speech rights.  See Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 
U.S. 789, 816 (1984). 
VI. Second Cause of Action 
The Freedom of Assembly Clause of the First Amendment to the U.S. Constitution 
 
79. 
Paragraphs 1 through 78 are hereby incorporated as if set forth fully herein. 
80. 
The First Amendment of the Constitution protects the “right of the people 
peaceably to assemble.”   
81. 
The Supreme Court has long recognized that the First Amendment’s freedom of 
assembly includes religious assemblies.  See NAACP v. Alabama, 357 U.S. 449, 460-62 (1958).  
“Joining a lawful organization, like attending a church, is an associational activity that comes 
within the purview of the First Amendment …. ‘Peaceably to assemble’ as used in the First 
Amendment necessarily involves a coming together, whether regularly or spasmodically.” 
Gibson v. Fla. Legislative Investigation Comm., 372 U.S. 539, 562 (1963) (Douglas, J., 
concurring) (noting that while, historically, the right to assembly was considered part of the right 
to petition the government for a redress of grievances, the right to assembly has since become 
“equally fundamental” with the right to free speech and thus applies to “attending a church”). 
82. 
“The right of free speech, the right to teach, and the right of assembly are, of 
course, fundamental rights.”  Whitney v. California, 274 U.S. 357, 373 (1927).  When a 
government practice restricts fundamental rights, it is subject to “strict scrutiny” and can be 
justified only if it furthers a compelling government purpose and, even then, only if no less 
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restrictive alternative is available.  See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 
1, 16-17 (1973); Dunn v. Blumstein, 405 U.S. 330 (1972).  
83. 
By denying Plaintiff the ability to assemble via an in-person church service in 
numbers greater than 100, whether indoors or outdoors, Defendants are in violation of the 
Freedom of Assembly Clause.  Defendants cannot meet the no-less-restrictive-alternative test.  
Social distancing precautions are appropriate to limit the spread of COVID-19.  Imposing more-
restrictive requirements that target only churches and their services is not the least restrictive 
means of achieving Defendants’ public safety goal. 
84. 
Requiring Plaintiff to abstain from its religious gatherings, despite substantial 
modifications to satisfy the public health interests at stake, violates Plaintiff’s constitutional right 
peaceably to assemble. 
VII. Third Cause of Action 
Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1. 
 
85. 
Paragraphs 1 through 84 are hereby incorporated as if set forth fully herein. 
86. 
RFRA states that “[g]overnment shall not substantially burden a person’s exercise 
of religion even if the burden results from a rule of general applicability” unless the government 
“demonstrates that application of the burden to the person—(1) is in furtherance of a compelling 
governmental interest; and (2) is the least restrictive means of furthering that compelling 
governmental interest.”  42 U.S.C. § 2000bb-1; Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 
682, 705 (2014). 
87. 
RFRA’s “compelling interest test” is a form of strict scrutiny that “requires the 
Government to demonstrate that the compelling interest test is satisfied through application of 
the challenged law ‘to the person’—the particular claimant whose sincere exercise of religion is 
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being substantially burdened.”  Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 
546 U.S. 418, 430-31 (2006). 
88. 
The District of Columbia, as an enclave of the federal government, is a “covered 
entity” under RFRA.  42 U.S.C. § 2000bb-2(2). 
89. 
In order to make the required “demonstrat[ion]” to justify a burden of religion, 
Defendants must satisfy both the evidentiary and persuasive burden.  42 U.S.C. §§ 2000bb-2(3). 
90. 
RFRA broadly defines the “exercise of religion” to include “any exercise of 
religion, whether or not compelled by, or central to, a system of religious belief.”  42 U.S.C. 
§ 2000bb–2(4) (citing 42 U.S.C. § 2000cc–5).  In Hobby Lobby, the United States Supreme 
Court stated that the exercise of religion involves “not only belief and profession but the 
performance of (or abstention from) physical acts that are engaged in for religious reason.”  573 
U.S. at 710 (citing Employment Division v. Smith, 494 U.S. 872, 877 (1990)). 
91. 
Gathering as one church in a single worship service is an essential component of 
Plaintiff’s exercise of religion. 
92. 
A compelling interest includes “only those interests of the highest order.” 
Wisconsin v. Yoder, 406 U.S. 205, 215 (1972).  And the least-restrictive-means standard is 
“exceptionally demanding.”  Hobby Lobby, 573 U.S. at 728.  To pass the least-restrictive-means 
test, the government must show “that it lacks other means of achieving its desired goal without 
imposing a substantial burden on the exercise of religion” by the religious objector.  Id.  
93. 
By denying Plaintiff the ability to hold an in-person church service, Defendants 
are in violation of RFRA.   
94. 
Defendants cannot meet the least-restrictive-means test.  Social distancing 
precautions are appropriate to limit the spread of COVID-19.  Imposing more-restrictive 
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requirements that target only churches and their services, and not similar mass gatherings, is not 
the least restrictive means of achieving Defendants’ public safety goal.  Defendants employ 
substantially less restrictive means to regulate mass protests, which register attendance figures 
far greater than those permitted at church services. 
VIII. Fourth Cause of Action 
The Free Exercise Clause of the First Amendment to the U.S. Constitution 
 
95. 
Paragraphs 1 through 94 are hereby incorporated as if set forth fully herein. 
96. 
The First Amendment of the Constitution protects the “free exercise” of religion. 
Fundamental to this protection is the right to gather and worship.  See W. Va. State Bd. of Educ. 
v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw 
certain subjects from the vicissitudes of political controversy, to place them beyond the reach of 
majorities and officials and to establish them as legal principles to be applied by the courts . . . 
[such as the] freedom of worship and assembly.”). 
97. 
As the Supreme Court has noted, “[a] law burdening religious practice that is not 
neutral or not of general application must undergo the most rigorous of scrutiny.”  Church of the 
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993).  
98. 
Gathering as one church in a single worship service is an essential component of 
Plaintiff’s exercise of religion. 
99. 
Defendants prohibit in-person religious services of greater than 100 people, under 
penalty of law, and have thus substantially burdened Plaintiff’s religious exercise. 
100. 
“[T]he minimum requirement of neutrality is that a law not discriminate on its 
face.”  Id. at 533. 
101. 
Defendants’ restrictions have specifically and explicitly targeted in-person 
religious gatherings and are thus not neutral on their face.  
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102. 
Relatedly, government action is not generally-applicable if its prohibitions 
substantially under-include non-religiously motivated conduct that might endanger the same 
governmental interest that the law is designed to protect.  Id. at 542–46. 
103. 
Defendants’ prohibition of in-person church services in excess of 100 people is 
not generally-applicable.  There are numerous business organizations and other entities that 
Defendants are not cracking down on where far more people come into closer contact with less 
oversight.  Moreover, Defendants systematically permit and endorse much larger gatherings, 
numbering in the tens of thousands, for the purposes of mass protests. 
104. 
Laws and government actions that burden religious practice and are either not 
neutral or not generally-applicable must satisfy a compelling governmental interest and be 
narrowly tailored to achieve that end.  See id. at 546. 
105. 
Defendants’ mandate is not “narrowly tailored” because the ban on in-person 
gatherings in excess of 100 people for religious services is absolute, not accounting for services, 
like Plaintiff’s, where social distancing precautions are carefully adhered to, and thus satisfy the 
public health concerns to which the guidelines are directed. 
106. 
Requiring Plaintiff to abstain from its religious gatherings, despite substantial 
modifications to satisfy the public health interests at stake, violates Plaintiff’s constitutional right 
to free exercise of its religion. 
IX. Fifth Cause of Action 
The Due Process Clause of the Fifth Amendment to the U.S. Constitution 
 
107. 
Paragraphs 1 through 106 are hereby incorporated as if set forth fully herein. 
108. 
The Fifth Amendment of the Constitution prohibits governmental deprivation of 
“life, liberty, or property, without due process of law.”  “The liberty protected by the Fifth 
Amendment’s Due Process Clause contains within it the prohibition against denying to any 
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person the equal protection of the laws.”  United States v. Windsor, 570 U.S. 744, 774 (2013).  
This Fifth Amendment protection applies with full force to the District of Columbia.  See Bolling 
v. Sharpe, 347 U.S. 497 (1954). 
109. 
To establish an equal protection claim under the Fifth Amendment, the plaintiff 
must plead and prove that the defendant acted with discriminatory purpose on account of race, 
religion, or national origin.  See Anderson v. Holder, 691 F. Supp. 2d 57, 61-62 (D.D.C. 2010) 
(citing Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)). 
110. 
Mayor Bowser has acknowledged that her selective enforcement of the mass 
gathering restrictions is motivated by a discriminatory purpose.  As she admitted in an MSNBC 
interview, the discriminatory enforcement of her ban on large gatherings is based on her 
preference for social “protest” over religious worship, and she mistakenly asserts that the 
Constitution supports her content-based bias. 
111. 
Similarly, the District of Columbia, in rejecting Plaintiff’s application for a 
waiver, responded that it was not considering waivers “for places of worship.”  The District did 
not claim that it is categorically denying waiver requests for all mass gatherings regardless of 
expressive purpose; that categorical denial applies only to churches.  Defendants have thus 
explicitly tied their denial of Plaintiff’s waiver to the expressive content of the gathering, rather 
than the circumstances under which it is conducted. 
112. 
Defendants’ intentional differential treatment of places of worship from other 
similarly situated individuals and entities has denied Plaintiff equal protection of the laws, 
violating Plaintiff’s Fifth Amendment guarantee of due process.  
X. Prayer for Relief 
WHEREFORE, Plaintiff requests this Court enter an order: 
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a. 
Declaring that Defendants have unlawfully burdened Plaintiff’s free speech rights, 
in violation of the Free Speech Clause of the First Amendment to the U.S. 
Constitution; 
b. 
Declaring that Defendants have unlawfully burdened Plaintiff’s right to peaceably 
assemble, in violation of the Freedom of Assembly Clause of the First 
Amendment to the U.S. Constitution; 
c. 
Declaring that Defendants have unlawfully burdened Plaintiff’s religious free 
exercise rights, in violation of the Religious Freedom Restoration Act, 42 U.S.C. 
§ 2000bb, et seq.; 
d. 
Declaring that Defendants have unlawfully burdened Plaintiff’s religious free 
exercise rights, in violation of the Free Exercise Clause of the First Amendment to 
the U.S. Constitution; 
e. 
Declaring that Defendants have denied Plaintiff equal protection of the laws, in 
violation of the Due Process Clause of the Fifth Amendment to the U.S. 
Constitution; 
f. 
Entering a temporary restraining order, preliminarily enjoining, and permanently 
enjoining Defendants from prohibiting Plaintiff from physically gathering as a 
congregation in the District of Columbia if conducted with appropriate social 
distancing practices; 
g. 
Awarding Plaintiff costs and reasonable attorneys’ fees and expenses; and 
h. 
Granting Plaintiff all such other and further relief as the Court deems just and 
proper. 
 
 
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Dated: September 22, 2020 
Respectfully submitted, 
 
 /s/ Matthew T. Martens 
Matthew T. Martens (D.C. Bar No. 1019099) 
Kevin Gallagher (D.C. Bar No. 1031415)* 
Matthew E. Vigeant (D.C. Bar. No. 144722)* 
Andrew Miller (D.C. Bar No. 1644997)* 
WILMER CUTLER PICKERING HALE AND 
DORR LLP 
1875 Pennsylvania Avenue, NW  
Washington, DC 20006  
Tel: (202) 663-6000  
Fax: (202) 663-6363  
Matthew.Martens@wilmerhale.com 
*admission application pending 
 
Kevin Palmer (pro hac vice forthcoming) 
WILMER CUTLER PICKERING HALE AND 
DORR LLP 
60 State Street 
Boston, MA 02109 
Tel: (617) 526-6000  
Fax: (617) 526-5000 
Kevin.Palmer@wilmerhale.com 
 
Hiram S. Sasser, III (pro hac vice forthcoming) 
FIRST LIBERTY INSTITUTE 
2001 W. Plano Pkwy., Ste. 1600 
Plano, Texas 75075  
Tel: (972) 941-4444  
Fax: (972) 941-4457 
hsasser@firstliberty.org 
Attorneys for Capitol Hill Baptist Church 
 
Case 1:20-cv-02710   Document 1   Filed 09/22/20   Page 26 of 26

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