Motion for Temporary Restraining Order — CHBC v. Bowser

Record facts

U.S. District Court for the District of Columbia · No. 1:20-cv-02710-TNM · Doc. 3 · 2020-09-22 · Docket on CourtListener

Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
CAPITOL HILL BAPTIST CHURCH, 
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Plaintiff, 
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Civil Action No. 1:20-cv-2710 
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, and the DISTRICT OF 
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COLUMBIA, 
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Oral Argument Request 
 
 
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Defendants 
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PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION 
FOR EMERGENCY HEARING 
 
Plaintiff hereby moves the Court pursuant to Rule 65(b) of the Federal Rules of Civil 
Procedure for a temporary restraining order to prevent Defendants (the Mayor of the District of 
Columbia and the District of Columbia) from prohibiting in-person religious services held 
outdoors that adhere to social distancing precautions.  Specifically, Plaintiff asks the Court to 
block Defendants’ official capacity enforcement of Mayor’s Order 2020-075 against its outdoor 
church gathering.  Defendants’ now six-month ban on Plaintiff’s religious gatherings, even if 
held outdoors with appropriate precautions, runs afoul of multiple clauses of the First 
Amendment to the United States Constitution as well as the Religious Freedom Restoration Act 
(“RFRA”), 42 U.S.C. § 2000bb, et seq.  As detailed more fully in the accompanying 
Memorandum of Law, the issuance of a temporary restraining order is warranted here because 
Plaintiff has met all of the elements required for such relief. 
Plaintiff is likely to succeed on all of the claims it has alleged in the complaint.  Plaintiff 
is likely to succeed on the merits of the claim that Defendants have violated Plaintiff’s First 
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Amendment right to free speech.  Content-based distinctions of speech “are presumptively 
unconstitutional and may be justified only if the government proves that they are narrowly 
tailored to serve compelling state interests.”  Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 
(2015).  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 v. Gilleo, 512 U.S. 43, 48-53 (1994); City of 
Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429 (1993).  Defendants’ prohibition of 
mass gatherings has been selectively enforced against religious institutions and not mass 
protests, thus creating a content-based restriction on speech.  This content-based prohibition on 
outdoor church gatherings of more than 100 congregants is not “narrowly tailored” to the 
government’s admittedly legitimate interest in promoting public health with regard to the 
COVID-19 pandemic, as evidenced by Defendants’ allowance of, and Mayor Bowser’s personal 
participation in, outdoor gatherings of far greater size and little to no social distancing.  Plaintiff 
is thus likely to succeed on the merits of this claim.   
Similarly, Plaintiff is likely to succeed on the merits of the claim that Defendants have 
violated Plaintiff’s First Amendment right to peaceably assemble.  Defendants’ action fails to 
further a compelling government purpose by the least restrictive means.  See, e.g., San Antonio 
Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973); Dunn v. Blumstein, 405 U.S. 330 
(1972).  Defendants’ prohibition cannot satisfy strict scrutiny because there are less restrictive 
alternatives to achieve the government interest, such as allowing services to be held consistent 
with social distancing precautions that are designed to limit the spread of COVID-19, as 
Defendants allow with similar secular activities such as mass protests.  Defendants have not 
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narrowly tailored their action to the compelling interest, and thus Plaintiff is likely to succeed on 
the merits of this claim.   
Plaintiff is likewise likely to succeed on its claim under RFRA, which imposes strict 
scrutiny on government actions that substantially burden a person’s exercise of religion.  42 
U.S.C. § 2000bb-1.  By denying Plaintiff the ability to hold in-person outdoor church services 
for more than 100 people, Defendants are in violation of RFRA.  Defendants are substantially 
burdening Plaintiff’s exercise of religion by attaching civil penalties to its in-person outdoor 
congregational gatherings.  See, e.g., Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 
613 (6th Cir. 2020) (“Orders prohibiting religious gatherings, enforced by police officers … 
amount to a significant burden on worship gatherings.”).  Given this substantial burden, 
Defendants would have to prove—with admissible evidence, 42 U.S.C. § 2000bb-2(4)—that the 
governmental interest in protecting the public from COVID-19 cannot be sufficiently satisfied 
with something less restrictive than an outright prohibition of outdoor worship gatherings larger 
than 100 people.  Defendants fail this extremely demanding least-restrictive-means test and, for 
this reason, Plaintiff is likely to succeed on this claim. 
Finally, Plaintiff is likely to succeed on the claim that Defendants have violated 
Plaintiff’s right to free exercise of religion based on controlling Supreme Court precedent.  
Defendants’ action is not neutral nor generally applicable, and it does not survive strict scrutiny. 
See Church of the Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 546 (1993).  Defendants’ 
prohibition is subject to strict scrutiny because of the discriminatory manner in which it has been 
enforced.  Despite the availability of less restrictive means to serve the legitimate health and 
safety interests—namely, abiding by social distancing precautions—Defendants have instead 
ordered an absolute prohibition of outdoor religious services of over 100 attendees.   Because 
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this prohibition is not narrowly tailored to the government interest, it violates Plaintiff’s right to 
free exercise.  Plaintiff is thus likely to succeed on the merits of this claim.   
The other temporary restraining order factors also weigh in favor of Plaintiff.  
Enforcement of the prohibition will result in immediate, irreparable harm, as Plaintiff and its 
members will lose the right to celebrate the upcoming Lord’s Day (and subsequent Lord’s Days 
until the restrictions change) as one congregation in the District of Columbia, according to their 
sincerely held religious beliefs.  Moreover, the balance of equities weighs firmly in favor of 
Plaintiff.  The participants in Plaintiff’s outdoor worship gatherings are committed to physically 
gathering in a manner consistent with social distancing precautions to ensure the safety and well-
being of members and congregants.  Finally, it is always in the public interest to protect 
constitutional rights. 
A temporary restraining order is thus proper to protect Plaintiff’s rights to free speech, 
peaceful assembly, and religious freedom.  Plaintiff respectfully requests the emergency 
intervention of this Court to protect it from the immediate and irreparable injury to its legal 
rights. Without such relief, Plaintiff will forever lose its ability to celebrate this upcoming Lord’s 
Day in the District of Columbia in accordance with its sincerely held religious beliefs.   
For the foregoing reasons, and as set forth in the accompanying Memorandum, Plaintiff 
respectfully requests that the Court GRANT the Motion for a Temporary Restraining Order. 
 
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)* 
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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-TNM   Document 3   Filed 09/22/20   Page 5 of 5

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