Court filing

Memorandum in Support of TRO — CHBC v. Bowser

Filed September 22, 2020 in Capitol Hill Baptist Church v. Bowser; one of 10 filings from this case.

Record facts

Court	U.S. District Court for the District of Columbia
Filed	2020-09-22

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

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

CAPITOL HILL BAPTIST CHURCH,
|

Plaintiff,
|

|
Civil Action No. 1:20-cv-2710
v.

Oral Argument Requested

Defendants
|

MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION FOR TEMPORARY RESTRAINING ORDER
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 1 of 39

TABLE OF CONTENTS
I.
Introduction ..........................................................................................................................1
II.
Factual Background .............................................................................................................4
A.
The Significance of Gathering to CHBC .................................................................4
B.
Prohibition of Mass Gatherings ...............................................................................5
C.
Mass Protests .........................................................................................................11
D.
CHBC’s Attempts to Meet in the District ..............................................................14
III.
Argument and Authorities..................................................................................................17
A.
CHBC is Likely to Succeed on the Merits of its Free Speech, Freedom of
Assembly, RFRA, and Free Exercise Claims. .......................................................18
1.
CHBC is Likely to Succeed on the Merits of its Free Speech Claim
under the U.S. Constitution. .......................................................................18
2.
CHBC is Likely to Succeed on the Merits of its Freedom of
Assembly Claim under the U.S. Constitution. ...........................................21
3.
CHBC is Likely to Succeed on the Merits of its Claim under the
Religious Freedom Restoration Act. ..........................................................23
4.
CHBC is Likely to Succeed on the Merits of its Free Exercise
Claim under the U.S. Constitution. ............................................................25
B.
Enforcement of Defendants’ Orders Will Inflict Irreparable Injury on
CHBC if the TRO is Not Issued. ...........................................................................29
C.
A TRO Would Not Substantially Injure Other Interested Parties..........................29
D.
The Public Interest in Protecting CHBC’s Constitutional Rights Requires
Entry of a TRO.......................................................................................................31
IV.
Conclusion .........................................................................................................................31

Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 2 of 39

TABLE OF AUTHORITIES

Page(s)
Federal Cases
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................19
Branch Ministries v. Rossotti,
211 F.3d 137 (D.C. Cir. 2000) .................................................................................................23
*Burwell v. Hobby Lobby Stores, Inc.,
573 U.S. 682 (2014) ...........................................................................................................23, 24
Calvary Chapel Dayton Valley v. Sisolak,
__ F. Supp. 3d __, No. 19A1070, 2020 WL 3488742 (July 24, 2020) ....................................20
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) .................................................................................................17
*Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
508 U.S. 520 (1993) .....................................................................................................26, 27, 28
City of Cincinnati v. Discovery Network, Inc.,
507 U.S. 410 (1993) .................................................................................................................19
*City of Ladue v. Gilleo,
512 U.S. 43 (1994) ...................................................................................................................19
De Jonge v. State of Oregon,
299 U.S. 353 (1937) .................................................................................................................22
Dunn v. Blumstein,
405 U.S. 330 (1972) .................................................................................................................22
Elrod v. Burns,
427 U.S. 347 (1976) .................................................................................................................29
Employment Division v. Smith,
494 U.S. 872 (1972) .................................................................................................................24
Espresso, Inc. v. Dist. of Columbia,
884 F. Supp. 7 (D.D.C. 1995) ................................................................................18, 19, 21, 22
Fraternal Order of Police Newark Lodge No. 12 v. City of Newark,
170 F.3d 359 (3d Cir. 1999) (Alito, J.) ....................................................................................27
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 3 of 39

iii

Gibson v. Fla. Legislative Investigation Comm.,
372 U.S. 539 (1963) (Douglas, J., concurring) ........................................................................22
Good News Club v. Milford Central School,
533 U.S. 98 (2001) ...................................................................................................................19
Gonzales v. O Centro Espirita Beneficiente Uniao,
546 U.S. 418 (2006) .................................................................................................................24
Herndon v. Lowry,
301 U.S. 242 (1937) .................................................................................................................22
Hispanic Affairs Project v. Perez,
141 F. Supp. 3d 60 (D.D.C. 2015) ...........................................................................................30
Lee v. Weisman,
505 U.S. 577 (1992) .................................................................................................................24
Marymount Hosp., Inc. v. Shalala,
19 F.3d 658 (D.C. Cir. 1994) ...................................................................................................26
Maryville Baptist Church, Inc. v. Beshear,
957 F.3d 610 (6th Cir. 2020) ........................................................................................... passim
McCullen v. Coakley,
573 U.S. 464 (2014) .................................................................................................................21
Members of City of City of L.A. v. Taxpayers for Vincent,
466 U.S. 789 (1984) .................................................................................................................19
NAACP v. State of Alabama,
357 U.S. 449 (1958) .................................................................................................................22
Pahls v. Thomas,
718 F.3d 1210 (10th Cir. 2013) ...............................................................................................19
Penkoski v. Bowser,
__ F. Supp. 3d __, Case No. 20-cv-01519 (TNM), 2020 WL 4923620
(D.D.C. Aug. 21, 2020)............................................................................................................28
Police Dep’t of Chicago v. Mosley,
408 U.S. 92 (1972) ...................................................................................................................19
Pursuing America’s Greatness v. FEC,
831 F.3d 500 (D.C. Cir. 2016) .................................................................................................17
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 4 of 39

Quaker Action Grp. v. Hickel,
421 F.2d 1111 (D.C. Cir. 1969) ...............................................................................................29
Reed v. Town of Gilbert, Ariz.,
576 U.S. 155 (2015) .................................................................................................................19
Sammartano v. First Judicial Dist. Court in and for County of Carson City,
303 F.3d 959 (9th Cir. 2002) ...................................................................................................30
San Antonio Independent Sch. Dist. v. Rodriguez,
411 U.S. 1 (1973) .....................................................................................................................22
Simms v. District of Columbia,
872 F. Supp. 2d 90 (D.D.C. 2012) ...........................................................................................31
Schad v. Borough of Mt. Ephraim,
452 U.S. 61, 76-77 (1981) .......................................................................................................15
Schneider v. State,
308 U.S. 147, 163 (1939) .........................................................................................................15
*Soos v. Cuomo,
__ F. Supp. 3d __, 1:20-cv-651 (GLS/DJS), 2020 WL 4251360
(N.D.N.Y. June 26, 2020) ..................................................................................................20, 30
Tenafly Eruv Assoc., Inc. v. Borough of Tenafly,
309 F. 3d 144 (3d Cir. 2002)....................................................................................................27
Tyndale House Publishers, Inc. v. Sebelius,
904 F. Supp. 2d 106 (D.D.C. 2012) .........................................................................................29
W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) .................................................................................................................26
Wagner v. FEC,
793 F.3d 1 (D.C. Cir. 2015) ...............................................................................................26, 27
Whitney v. California,
274 U.S. 357 (1927) .................................................................................................................22
Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) .................................................................................................................27
Wisconsin v. Yoder,
406 U.S. 205 (1972) .................................................................................................................24
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 5 of 39

Federal Statutes
1 U.S.C. § 1 ....................................................................................................................................23
42 U.S.C. § 2000bb, et seq...............................................................................................................3
42 U.S.C. § 2000bb–2(4) ...............................................................................................................24
42 U.S.C. § 2000bb-1 ....................................................................................................................23
42 U.S.C. § 2000bb-2(2) ................................................................................................................23
42 U.S.C. §§ 2000bb-2(3) ........................................................................................................23, 24
42 U.S.C. § 2000bb-2(4) ................................................................................................................24
42 U.S.C. § 2000cc-5 .....................................................................................................................24
D.C. Official Code § 7-2307 ..............................................................................................6, 7, 8, 10

Other Authorities
A.T. Robertson, A GRAMMAR OF THE GREEK NEW TESTAMENT IN THE LIGHT OF
HISTORICAL RESEARCH (3rd ed. 1919) ......................................................................................4
Dever, Mark, The Church: The Gospel Made Visible .....................................................................5
WASH. POST, “The 2020 March on Washington – 8/28 (FULL STREAM,
https://www.youtube.com/watch?v=a9FwZJx7aq8 .................................................................14

Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 6 of 39

Plaintiff Capitol Hill Baptist Church (“CHBC” or the “Church”) moves for a temporary
restraining order, and in support thereof, states as follows:1
I.
Introduction

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. 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. And before this year, the
only interruption in the Church’s weekly worship gatherings was the three-week period in October
1918 when the District of Columbia “requested” that churches not gather for worship due to the
Spanish flu.

In March of this year, District of Columbia Mayor Muriel Bowser issued an executive order
that, among other things, prohibited the CHBC congregation from gathering as one for in-person
worship, whether indoors or outdoors. 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. And 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.

1 CHBC incorporates and adopts by reference each and every allegation in its Original
Complaint.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 7 of 39

By contrast, neighboring states that have suffered far more cases of COVID-19 in recent
days—both in sheer numbers and as a proportion of the population—have allowed churches to
gather once more with appropriate precautions. In Virginia, the only mandatory requirements for
church services are that families or individuals must be seated at least six feet apart and churches
must adhere to certain cleaning and signage requirements. See Martens Decl. Ex. 1 at 36-37.2
There is no capacity limit for in-person services, either indoors or outdoors. Id. Similarly,
Maryland allows churches to operate at 75% capacity, with no maximum capacity limit, indoors
or outdoors. Martens Decl. Ex. 2 at 4.
In hopes of likewise 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.

Meanwhile, Mayor Bowser and the District of Columbia (collectively, “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 thousands of people at the
corner of 16th and H Streets, NW and delivered a speech describing the large gathering as
“wonderful to see.” Similarly, on four occasions between June and August 2020, the District’s

2 Copies of certain materials cited in this brief are attached as Exhibits to the Declaration of
Matthew T. Martens filed in support of Plaintiff’s Motion for a Temporary Restraining Order filed
concurrently herewith (hereinafter, “Martens Decl.”).
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 8 of 39

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.
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.” Martens Decl. Ex. 3. In other words, the Mayor is
intentionally discriminating in her treatment of large gatherings based on whether they have a
protest message or a worship message. This is content-based speech discrimination forbidden by
our Constitution.

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. The District’s now six-month ban on CHBC’s religious gatherings, even
if held outdoors with appropriate precautions, violates 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. Most notably, the District’s application of the Mayor’s Order to prohibit
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 9 of 39

outdoor church worship gatherings—stating that “[w]aivers for places of worship … are not being
granted at this time”—while providing governmental assistance to and endorsement of far larger
protests held outdoors, constitutes impermissible content-based discrimination in violation of the
Free Speech Clause of the First Amendment. For these reasons and others, Defendants’
unconstitutional and illegal treatment of CHBC should be enjoined.
II.
Factual Background
A.
The Significance of Gathering to CHBC
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 as “church”
in our English versions of the Christian scriptures is the word “ekklesia,” which literally means
“assembly.” A.T. Robertson, A GRAMMAR OF THE GREEK NEW TESTAMENT IN THE LIGHT OF
HISTORICAL RESEARCH (3rd ed. 1919). The bodily assembly of the church on Sunday to celebrate
in a special way Christ’s bodily resurrection is of particular importance and significance for
Christians.
CHBC takes seriously the scriptural exhortation that believers “not forsak[e] the
assembling of ourselves together.” Hebrews 10:25 (KJV). CHBC has a church covenant, which
is a statement of how the church agrees to live as a church. Dunlop Decl. Ex. 1.3 The church
covenant is reaffirmed at all members’ meetings and before taking communion. Id. In the church
covenant, CHBC members agree, consistent with Scripture, that they “will not forsake the

3 Copies of certain materials cited in this brief are attached as Exhibits to the Declaration
of Jamie Dunlop filed in support of Plaintiff’s Motion for a Temporary Restraining Order filed
concurrently herewith (hereinafter, “Dunlop Decl.”).
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 10 of 39

assembling of [them]selves together.” Id. CHBC’s members thus pledge to each other that they
will not neglect meeting as one distinct body together in one place.
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. Mark
Dever,4 CHBC’s senior pastor for more than 25 years, stated that a “biblically ordered church
regularly gathers the whole congregation” because “without regularly meeting together, it ceases
to be a biblically ordered church.” See Dunlop Decl. Ex. 3 at 135 (emphasis added). CHBC
leaders have thus made a convictional choice not to hold multiple services, capping their pre-
COVID-19 attendance at the capacity of their auditorium. Dunlop Decl. ¶ 6. And 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 a covenanted congregation
assembling together.” Martens Decl. Ex. 4.
CHBC believes that if the Bible is the cornerstone of its church, “membership is the
cement” that holds the church together. Dunlop Decl. Ex. 4. As of the date of the filing of the
Complaint, CHBC has 853 members. Dunlop Decl. ¶ 5. On a typical Sunday prior to the outbreak
of COVID-19, CHBC had approximately 1,000 people attend its Sunday morning worship service.
Id. ¶ 6.
B.
Prohibition of Mass Gatherings
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.

4 Dr. Dever earned his doctorate in Ecclesiastical History from Cambridge University. See
Dunlop Decl. Ex. 2.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 11 of 39

Martens Decl. Ex. 5, Ex. 6. 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.” Martens Decl. Ex. 7. Order 2020-053 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.” Id. The prohibition on large gatherings also included all events or activities with ten or
more persons in confined outdoor spaces. Id.
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 COVID-19 website
made clear, churches were not considered an “essential” entity by the District and were, for all
intents and purposes, 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.
Martens Decl. Ex. 8 (emphasis added). 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.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 12 of 39

Official Code § 7-2307, including civil fines, summary suspension or revocation of licensure.”
Martens Decl. Ex. 7.
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.” Martens Decl. Ex. 9. The Stay at Home Order exempted travel to essential
businesses, as well as to non-essential businesses to maintain minimum business operations. Id.
It also exempted “essential travel,” which did include “[t]ravel required to visit a house of
worship.” Id. 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.” Martens Decl.
Ex. 10.
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.” Martens Decl. Ex. 11. Under the Phase One Order, “[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.” Id. at 3. 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. Id. at 4.
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. Id. at 5-6. The
only limits were that individual groups of persons had to consist of ten or fewer (though multiple
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 13 of 39

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. Id.
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. 5
Martens Decl. Ex. 11. None of these entities were subject to the Mayor’s large gathering
prohibition. Martens Decl. Ex. 14. 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. Id. 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. Martens Decl. Ex. 15.
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. Martens Decl. Ex. 11.
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.” Id.

5 On September 10, 2020, the Centers for Disease Control and Prevention released a report
on close contact exposures associated with COVID-19. Martens Decl. Ex. 12. The report
studied two groups of people that generally reported similar activities, such as going to church,
gyms, and stores, with one exception: going out to eat or having drinks at a bar or coffee shop.
Those who tested positive for COVID-19 were approximately twice as likely to have reported
dining at a restaurant than were those with negative test results. A co-author of the report said
that the increased risk “makes sense” because it is “easy to wear a mask in stores or in places of
worship, but it’s nearly impossible to do so while eating or drinking.” Martens Decl. Ex. 13.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 14 of 39

Effective June 22, 2020, the Mayor announced Phase Two of the District’s reopening via
Mayor’s Order 2020-075. See Martens Decl. Ex. 16. 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. Id.; see also Martens Decl. Ex. 17. 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. Martens Decl. Ex. 18. 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. See Martens Decl.
Ex. 19.
 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. See
Martens Decl. Ex. 20.
 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. See Martens Decl. Ex. 21.
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
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 15 of 39

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.” Martens Decl. Ex. 22
(emphasis in original). Houses of worship, which have a constitutional right to gather, are the only
entities expressly encouraged to continue meeting virtually in Phase Two—not restaurants, bars,
gyms, museums, or barbershops; only houses of worship. See generally Martens Decl. Ex. 15.
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.” Martens
Decl. Ex. 22. Importantly, “[t]hese limits apply to indoor and outdoor services.” Id. Mayor
Bowser has acknowledged that “[s]ome would say” that her limitations on outdoor church services
are “more restrictive” than her limitations on indoor retail establishments. Martens Decl. Ex. 23.
Violators of the Phase Two Order 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.” Martens Decl. Ex. 16.
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. See Martens
Decl. Ex. 24. As of the date of the filing of the 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, see Martens Decl. Ex. 25; her latest suggestion is that it would not occur
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 16 of 39

until children are back in school (which is tentatively scheduled for November), see Martens Decl.
Ex. 26. Even in Phase Three, however, houses of worship would be capped at 250 attendees, see
Martens Decl. Ex. 27, according to recommendations from the ReOpen DC Advisory Group, a
group constituted by Mayor Bowser to provide recommendations for reopening that can then be
“operationalize[d]” by Defendants, see, e.g., Martens Decl. Ex. 11. 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. Martens Decl. Ex. 28.
C.
Mass Protests
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. 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. Martens Decl. Ex. 29. While this large gathering was prohibited by
the Phase One restrictions, Defendants declined to enforce the restrictions against participants. To
the contrary, 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.” Id. Further,
Defendants closed dozens of city streets to vehicular traffic on that day in order to accommodate
the “First Amendment demonstrations.” Martens Decl. Ex. 30. 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.6

6 CHBC is not suggesting or implying that such citations should have been given but only
that, to the best of CHBC’s knowledge, Defendants have not been enforcing their large gathering
prohibitions against participants in mass protests.
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The next day (Sunday), “thousands of protestors again converged in the nation’s capital”
for a mass protest. Martens Decl. Ex. 31. This protest included a march of “several hundred
people” from Southeast Washington along “closed-down streets leading to the White House” with
an “escort of police on motorcycles.” Id. 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.” Id. As the march proceeded, participants “sang, prayed,
and banged tambourines.” Id. Several hundred participants gathered at the Capitol Reflecting
Pool where prayers were offered. Id. Again, 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.
On Sunday, June 14, 2020, “thousands” of protestors 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, which was “transformed into
a church.” Martens Decl. Ex. 32. The Washington Post described the event 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.” Id. At this mass protest,
“[p]eople bunched up in places.” Id. Defendants again closed dozens of city streets to vehicular
traffic in order to accommodate the “First Amendment demonstrations.” Martens Decl. Ex. 33.
When asked about the COVID-19 implications of the protests, Mayor Bowser stated that she was
“going to support these peaceful demonstrations” even though government officials did not “know
what the impact of these demonstrations will be on our COVID experience in D.C.” Martens Decl.
Ex. 34. On information and belief, Defendants appropriately recognized First Amendment rights
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 18 of 39

and did not cite a single participant in the June 14 mass protest for a violation of the Phase One
prohibition on large gatherings.
On June 19-21, 2020, many mass protests coinciding with Juneteenth took place
throughout the District. One of the Juneteenth protests on June 19 was a march organized by the
Washington Wizards and Washington Mystics professional basketball teams, attended by a “crowd
of thousands.” Martens Decl. Ex. 35. At another June 19 Juneteenth mass protest, “hundreds” of
people marched from Freedom Plaza to the United States Department of Education. Martens Decl.
Ex. 36. And “hundreds” of people gathered the next two days on the National Mall for further
Juneteenth protests. See Martens Decl. Ex. 37, Ex. 38. Defendants again closed dozens of city
streets to vehicular traffic in order to accommodate the “First Amendment demonstrations.”
Martens Decl. Ex. 39. 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.
Since June 22, 2020, the District has been subject to Defendants’ Phase Two restrictions,
which prohibit gatherings of more than 50 people, “including recent ongoing protests.” Martens
Decl. Ex. 17. On July 31, 2020, however, Mayor Bowser issued guidance for persons planning to
attend the Commitment March, an August 28, 2020 mass gathering for racial justice. Martens
Decl. Ex. 40. 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. Id.
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.” Martens Decl. Ex. 41. On
August 28, 2020, “[t]housands of protesters gathered” at the Lincoln Memorial to participate in
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the Commitment March, see Martens Decl. Ex. 42, which lasted approximately five hours. 7
Defendants again closed dozens of city streets to vehicular traffic in order to accommodate the
“First Amendment demonstrations.” Martens Decl. Ex. 43. 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.
In June 2020, Mayor Bowser was asked why she “celebrates massive street protests” while
“churches and houses of worship remain shut.” See Martens Decl. Ex. 3. She responded that
“First Amendment protests and large gatherings are not the same” because “in the United States
of America, people can protest.” Id. In the United States of America, people can gather for
worship under the First Amendment as well.
D.
CHBC’s Attempts to Meet in the District
On June 10, 2020, CHBC submitted a request to the District of Columbia for a waiver from
Defendants’ restrictions on large gatherings. See Dunlop Decl. Ex. 5. 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.” Id. It also stated that, for all practical purposes,
“if a church cannot meet in an assembly it does not exist.” Id. 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.” Id. This has been, the request concluded, “a substantial
burden on” CHBC’s congregation, “most of whom live in the District of Columbia.” Id. The
request asked for “a waiver so that [CHBC] can meet outside of a building in a manner consistent

7 See Washington Post, The 2020 March on Washington – 8/28 (FULL LIVE STREAM),
https://www.youtube.com/watch?v=a9FwZJx7aq8.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 20 of 39

with the current guidance applicable to outdoor restaurants.” Id. 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.” Id.
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. Dunlop Decl. ¶ 12.8 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 request on September 1,
2020. See Dunlop Decl. Ex. 6. 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. Id. 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.” Id. CHBC pledged to “ensure

8 Starting in June 2020, CHBC began meeting outdoors as one congregation on Sunday
evenings on a church property located outside the I-495 beltway in Virginia, because Virginia’s
Governor began allowing churches to meet outdoors. Dunlop Decl. ¶ 14. Those in CHBC’s
congregation who were able traveled to this location each week to meet outdoors, spaced at least
6 feet between households, with all participants over the age of ten years wearing masks. Id.
These outdoor services have resulted in no known cases of COVID-19 transmission despite
meeting for fifteen weeks. Id. Meeting as a congregation outside the I-495 beltway has been a
substantial burden on CHBC. Id. ¶ 15. Most of CHBC’s congregation lives in the District of
Columbia, and many do not own vehicles. Id. Those who are unable to find safe transportation
to Virginia (which are many) have not been able to participate in Christian ordinances since early
March. Id.
Of course, the fact that CHBC is able to meet in Virginia is not a defense against any of its
claims against Defendants. The Supreme Court has been clear that “[o]ne is not to have the
exercise of his liberty of expression in appropriate places abridged on the plea that it may be
exercised in some other place.” Schneider v. State, 308 U.S. 147, 163 (1939); see also Schad v.
Borough of Mt. Ephraim, 452 U.S. 61, 76-77 (1981) (rejecting prohibition of expression in a
jurisdiction even though the exercise of such expressive rights was “amply available in close-by
areas outside the limits of the Borough”).
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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.” Id.
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.
Dunlop Decl. ¶ 18. Ms. Opkins promised to reach out to the Mayor’s Office for information. Id.
On September 15, 2020, the District of Columbia rejected CHBC’s request for a waiver. See
Dunlop Decl. Ex. 7. 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.” Id. 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.” Id.
(emphasis added). To the extent CHBC’s request was to operate above those gathering limits, the
letter concluded, its request “is denied.” Id.
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.” Martens Decl. Ex. 44. The D.C. Homeland Security
and Emergency Management Agency approved the waiver request, allowing the drive-in gathering
to “hold up to 350 socially distanced vehicles.” Id.
The District of Columbia Department of Health has been tracking and reporting the
incidence of COVID-19 infections in the District. In the last seven days, 334 new cases of COVID-
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19 have been reported in the District, with 43 new cases on September 21, 2020.9 Martens Decl.
Ex. 45. 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. Dunlop Decl. ¶ 21. Specifically, CHBC will consider
health officials’ recommended precautions in the conduct of its services. Id. 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.
III.
Argument and Authorities
In determining whether to grant a temporary restraining order (“TRO”), courts must
consider four factors: (1) whether the movant has a substantial likelihood of success on the merits,
(2) whether the movant would suffer irreparable injury if a TRO were not granted, (3) whether
granting the TRO would substantially injure other interested parties, and (4) whether the public
interest would be furthered by granting the TRO. Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290, 297 (D.C. Cir. 2006). When a party seeks injunctive relief on the basis of the
potential violation of the First Amendment, “the likelihood of success will ‘often be the
determinative factor.’” Pursuing America’s Greatness v. FEC, 831 F.3d 500, 511 (D.C. Cir.
2016). For the reasons explained below, CHBC satisfies each of these requirements and is
accordingly entitled to the requested relief.

9 This is significantly diminished from positive test results at the height of the crisis. For
example, during the week of May 3, positive cases in the District of Columbia rose by 1,256. See
Martens Decl. Ex. 45.
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A.
CHBC is Likely to Succeed on the Merits of its Free Speech, Freedom of Assembly,
RFRA, and Free Exercise Claims.
CHBC has brought claims based on the freedom of speech, freedom of assembly, and the
free exercise of religion guaranteed under the First Amendment as well as a claim under RFRA.
As explained below, the Church is likely to succeed on each of those claims.
1.
CHBC is Likely to Succeed on the Merits of its Free Speech Claim under the U.S.
Constitution.
Defendants’ prohibition of mass gatherings has been selectively enforced against religious
institutions and not mass protests, thus creating a content-based restriction on speech. Defendant
Bowser admitted as much, purporting to justify her preference of protests over worship services
on her mistaken assertion that only the former are constitutionally protected. The Mayor’s content-
based restriction on worship cannot pass constitutional scrutiny because it burdens substantially
more speech than is necessary to further a legitimate government interest. Indeed, when asked,
the Mayor did not offer a governmental interest in support of her discrimination against religious
speech. See Martens Decl. Ex. 3. Similarly, the District of Columbia, in rejecting CHBC’s
application for a waiver, responded that it was not considering waivers “for places of worship.”
See Dunlop Decl. Ex. 7. 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
places of worship. Defendants have thus explicitly tied their enforcement of the Mayor’s Order
and their denial of CHBC’s waiver application to the expressive content of the gathering, rather
than the circumstances under which the gathering is conducted. Content-based discrimination of
this sort is unconstitutional, in violation of CHBC’s First Amendment right to free speech.
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
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Columbia as to the federal government. Espresso, Inc. v. Dist. of Columbia, 884 F. Supp. 7, 9
(D.D.C. 1995). 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) (quoting Police Dep’t of Chicago v.
Mosley, 408 U.S. 92, 95 (1972)). CHBC’s religious worship gatherings 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).
“When a law or policy, though facially legitimate, is selectively enforced or subject to
exceptions, it may suggest that content or viewpoint discrimination is afoot.” Pahls v. Thomas,
718 F.3d 1210, 1238 (10th Cir. 2013) (citing City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994)); see
also Members of City Council of City of L.A. v. Taxpayers for Vincent, 466 U.S. 789, 816 (1984)
(“To create an exception for appellees’ political speech and not [] other types of speech might
create a risk of engaging in constitutionally forbidden content discrimination.”). 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). Thus, a plaintiff can sustain “a discrimination claim rooted in the First
Amendment” if the plaintiff “show[s] that a governmental official ‘acted with discriminatory
purpose.’” Pahls, 718 F.3d at 1236 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009)).
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,
576 U.S. at 163.
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Here, Defendants have created a de facto content-based exemption from their ban on mass
gatherings. Both mass protests and religious services are subject to limitations on the number of
attendees under Defendants’ Phase Two restrictions. But Defendants have selectively enforced
those limitations, choosing to facilitate the safe gathering of some groups while declining an
exemption to houses of worship from the Mayor’s ban on mass gatherings. See Soos v. Cuomo,
__ F. Supp. 3d __, 2020 WL 3488742, at *11 (N.D.N.Y. June 26, 2020) (“Governor Cuomo’s
comments, which applauded and encouraged protesting and discouraged others from violating the
outdoor limitations, likely demonstrate the creation of a de facto exemption.”). And the Mayor
has acknowledged that her de facto exemption for mass gatherings for purposes of protests was
without knowledge of any health implications. As she stated, District officials did not “know what
the impact of these demonstrations will be on our COVID experience in D.C.” Martens Decl. Ex.
34.
By acting as they have, Defendants have “sent a clear message that mass protests are
deserving of preferential treatment.” Soos, 2020 WL 3488742. at *12; see also Calvary Chapel
Dayton Valley v. Sisolak, 2020 WL 4251360, at *4 (July 24, 2020) (Alito, J., dissenting from denial
of application for injunctive relief) (“[R]especting some First Amendment rights is not a shield for
violating others.”). As seen in Mayor Bowser’s interview on MSNBC, 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.
See Martens Decl. Ex. 3. It does not. “Public protests, of course, are themselves protected by the
First Amendment.” Calvary Chapel, 2020 WL 4251360, at *4 (Alito, J.). But favoring “certain
speakers over others” is “anathema to the First Amendment.” Id.
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Defendants’ discriminatory 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, see McCullen v.
Coakley, 573 U.S. 464, 486 (2014), 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. Indeed, Mayor Bowser’s office has coordinated with the organizers of other mass
gatherings to assist them in exercising their First Amendment rights. CHBC is willing to follow
social distancing and hygiene requirements and require attendees to wear masks. Yet Defendants’
Phase Two restrictions forbid them from gathering as a church given that their church gatherings
exceed 100 attendees. In other words, Defendants have shown they can accomplish their interest
in more narrow ways than outright forbidding religious gatherings of 100 attendees or more. And,
while many recent mass protests have not required social distancing and other hygiene
requirements, CHBC is committed to following necessary precautions for the safety of its members
and the community. Defendants’ actions thus are not narrowly tailored as to CHBC’s religious
worship services and violate CHBC’s constitutional right to free speech.
2.
CHBC is Likely to Succeed on the Merits of its Freedom of Assembly Claim under
the U.S. Constitution.
Defendants’ prohibition on CHBC’s gathering as a church likewise significantly burdens
CHBC’s freedom of assembly. And again, the prohibition is not narrowly tailored to achieve the
legitimate public health and safety interests of the government. Thus, the prohibition violates
CHBC’s First Amendment right to peaceably assemble.
The First Amendment of the U.S. Constitution protects the “right of the people peaceably
to assemble.” The Free Assembly Clause applies “with equal vigor” to the District of Columbia
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as to the federal government. Espresso, 884 F. Supp. at 9. The right to peaceably assemble applies
to any meeting, public discussion, or gathering, regardless of the subject of the gathering. See,
e.g., De Jonge v. Oregon, 299 U.S. 353 (1937); Herndon v. Lowry, 301 U.S. 242 (1937). 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); see also id. (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”). “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 restrictive alternative is available. 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).
Here, Defendants’ prohibition cannot withstand strict scrutiny because less restrictive
alternatives of achieving the legitimate public safety interests are clearly possible: services could
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. See
Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 613 (6th Cir. 2020) (“The way the orders
treat comparable religious and non-religious activities suggests that they do not amount to the least
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restrictive way of regulating the churches.”). CHBC has committed to follow the same social
distancing precautions followed by comparable non-religious assemblies. But despite the ability
and willingness to take these precautions, Defendants’ prohibition does not provide any exception
for religious services, like CHBC’s, where these guidelines would be carefully followed to satisfy
the public health interests at issue. Defendants’ endorsement of, facilitation of, and participation
in mass protests with attendance far in excess of CHBC’s membership, and without standardized
social-distancing precautions, is the clearest example of their willingness to apply less-restrictive
means to gatherings for the purpose of exercising First Amendment freedoms. By not allowing
CHBC’s in-person outdoor service, even when modified to comply with the relevant public health
guidelines, Defendants have not narrowly tailored their action to the claimed interest, and thus
violate CHBC’s constitutional right to peaceably assemble.
3.
CHBC is Likely to Succeed on the Merits of its Claim under the Religious
Freedom Restoration Act.
Enacted in 1993, RFRA provides 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. A church such as CHBC is a “person”
expressly protected by RFRA. 1 U.S.C. § 1; Branch Ministries v. Rossotti, 211 F.3d 137, 142
(D.C. Cir. 2000); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 705 (2014). The District of
Columbia, as an enclave of the federal government, is a covered governmental entity subject to
RFRA. 42 U.S.C. § 2000bb-2(2). In order to make the required “demonstrat[ion]” to justify a
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burden of religion, Defendants must satisfy both the evidentiary and persuasive burden. 42 U.S.C.
§§ 2000bb-2(3).
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)); see also Lee v. Weisman, 505 U.S. 577, 591 (1992)
(“The Free Exercise Clause embraces a freedom of conscience and worship.”). A compelling
interest sufficient to overcome free exercise rights 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.
By denying CHBC the ability to hold in-person outdoor church services for more than 100
people, Defendants are in violation of RFRA. Defendants are substantially burdening CHBC’s
exercise of religion by attaching civil penalties to its in-person congregational gatherings. See
Maryville, 957 F.3d at 613 (“Orders prohibiting religious gatherings, enforced by police officers
… amount to a significant burden on worship gatherings.” (citing Gonzales v. O Centro Espirita
Beneficiente Uniao, 546 U.S. 418, 428-32 (2006)); Hobby Lobby, 573 U.S. at 720, 726 (holding
that a $2,000 per-employee penalty was a substantial burden). 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 COVD-19 cannot be sufficiently satisfied with
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something less restrictive than an outright prohibition of outdoor worship gatherings larger than
100 people. While it is not the Church’s evidentiary burden, Mayor Bowser’s own participation
in and facilitation of outdoor events with attendance far in excess of CHBC’s membership, and
without standardized social-distancing precautions, disproves that less restrictive means are
unavailable. See Maryville, 957 F.3d at 613 (“The way the orders treat comparable religious and
non-religious activities suggests that they do not amount to the least restrictive way of regulating
the churches.”).
Moreover, CHBC has committed to follow the same social distancing precautions followed
by comparable non-religious establishments, including restaurants. But despite the ability and
willingness to take these precautions, Defendants’ prohibition does not provide any exception for
religious services, like CHBC’s, where these guidelines would be carefully followed to satisfy the
compelling public health interests at issue. In fact, as Mayor Bowser has admitted, “[s]ome would
say” that her limitations on churches are “more restrictive” than her limitations on retail
establishments. Martens Decl. Ex. 23. Thus, Defendants fail the “exceptionally demanding” least-
restrictive-means test and CHBC would be likely to succeed on its RFRA claim.
4.
CHBC is Likely to Succeed on the Merits of its Free Exercise Claim under the
U.S. Constitution.
Defendants’ prohibition of in-person religious gatherings of more than 100 worshippers
significantly burdens CHBC’s exercise of religion. The prohibition is neither generally applicable
nor neutral, and it is not narrowly tailored to achieve the legitimate public health and safety
interests of the government. Thus, the prohibition violates CHBC’s First Amendment right to free
exercise of religion.
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The First Amendment protects the “free exercise” of religion, and 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.”). The Free Exercise Clause applies “with equal vigor” to the District of Columbia
as to the federal government. Espresso, 884 F. Supp. at 9. Because of this fundamental protection,
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). The requirements to satisfy this scrutiny are so high that the government
action will only survive this standard in rare cases, and the government bears the burden of meeting
this exceptionally demanding standard. Id. Defendants’ prohibition on CHBC’s religious services
and the threatened penalties for holding such services clearly impose a substantial burden on
CHBC’s religious exercise. This action would thus need to pass strict scrutiny unless it is both
generally applicable and neutral. It is neither.
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. Lukumi, 508 U.S. at 542-46; see also Marymount Hosp., Inc.
v. Shalala, 19 F.3d 658, 663 (D.C. Cir. 1994) (holding that an HHS rule was generally applicable
because it treated a religious organization “the same as it would treat a non-religious
[organization].”). A law’s under-inclusiveness “may raise ‘doubts about whether the government
is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or
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viewpoint.’” Wagner v. FEC, 793 F.3d 1, 27 (D.C. Cir. 2015) (quoting Williams-Yulee v. Fla.
Bar, 575 U.S. 433, 448 (2015)).
Even were Defendants’ Orders here facially neutral and generally applicable—which they
are not10—the discriminatory manner in which they have been enforced would be subject to strict
scrutiny. In Lukumi, the Supreme Court held that official action cannot be shielded from rigorous
First Amendment scrutiny “by mere compliance with the requirement of facial neutrality.” 508
U.S. at 534. Courts instead must look beyond a law’s superficial neutrality and assess the actual
operation of the law. See id. at 535 (“[T]he effect of a law in its real operation is strong evidence
of its object.”). Thus, for instance, in Tenafly Eruv Association, Inc. v. Borough of Tenafly, the
Third Circuit held that although an ordinance was facially neutral, it was unconstitutional because
of its selective enforcement against the Orthodox Jewish community. See 309 F.3d 144 (3d Cir.
2002); see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359,
365 (3d Cir. 1999) (Alito, J.) (“[W]e conclude that the Department’s decision to provide medical
exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent
so as to trigger heightened scrutiny.”). Here, Defendants have created a de facto exemption for
mass protests but not for worship services. Because the “mass gatherings” prohibition has been
selectively enforced, it is not neutral.
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

10 Defendants’ Orders are not facially neutral because they single out mass gatherings of
houses of worship by name. See Maryville, 957 F.3d at 614 (noting that prohibiting “faith-based”
mass gatherings by name is a “hallmark[] of discrimination”). And Defendants’ Orders are not
generally applicable because of their numerous exemptions. See id. (“As a rule of thumb, the more
exceptions to a prohibition, the less likely it will count as a generally applicable, non-
discriminatory law.”).
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 33 of 39

achieve that end. Lukumi, 508 U.S. at 546. Here, the government’s prohibition is not “narrowly
tailored” because Defendants themselves have demonstrated that there less restrictive means of
achieving legitimate public safety interests. Defendants permit similar secular gatherings at which
thousands of people exercise their First Amendment freedoms of expression. See Maryville, 957
F.3d at 613 (“The way the orders treat comparable religious and non-religious activities suggests
that they do not amount to the least restrictive way of regulating the churches.”); Penkoski v.
Bowser, __ F. Supp. 3d __, 2020 WL 4923620, at *15 (D.D.C. Aug. 21, 2020) (“Plaintiffs’
suggestion that the Mayor violated the Free Exercise Clause may indeed have merit, given that
Plaintiffs allege that her COVID-19 restrictions have been selectively enforced—prohibiting
churches from gathering in groups of more than ten people while tolerating protestors gathering
by the thousands.”). CHBC has committed to following the same social distancing precautions
followed by comparable non-religious establishments. But despite the ability and willingness to
take these precautions, Defendants’ prohibition does not provide any exception for religious
services, like CHBC’s, where these guidelines would be carefully followed to satisfy the public
health interests at issue.
By not allowing CHBC’s outdoor in-person congregational gathering, even when modified
to comply with social distancing precautions, Defendants have not narrowly tailored their action
to the compelling interest, and thus violate CHBC’s constitutional right to free exercise of its
religion.
*
*
*
For the foregoing reasons, Defendants’ actions violate the United States’ constitutional
guarantees of free speech, freedom of assembly, and free exercise of religion, as well as RFRA.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 34 of 39

As a result, CHBC has established a substantial likelihood of success on the merits of the claims
set out in its Original Complaint.
B.
Enforcement of Defendants’ Orders Will Inflict Irreparable Injury on CHBC if the
TRO is Not Issued.
The Supreme Court held in Elrod v. Burns that the “loss of First Amendment freedoms, for
even minimal periods of time, unquestionably constitutes irreparable injury.” 427 U.S. 347, 373
(1976); see also Quaker Action Grp. v. Hickel, 421 F.2d 1111, 1116 (D.C. Cir. 1969) (“[A]ny
delay in the exercise of First Amendment rights constitutes an irreparable injury.”). “By extension,
the same is true of rights afforded under the RFRA, which covers the same types of rights as those
protected under the Free Exercise Clause of the First Amendment.” Tyndale House Publishers,
Inc. v. Sebelius, 904 F. Supp. 2d 106, 129 (D.D.C. 2012).
Defendants’ Phase Two restrictions deny CHBC the right to practice its faith as its
sincerely held beliefs compel. More specifically, without a temporary restraining order, CHBC
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 its sincerely held
religious beliefs. This restriction on CHBC’s religious practices constitutes immediate and
irreparable harm to the Church. See Maryville, 957 F.3d at 616 (“[T]he prohibition on attending
any worship service this Sunday, and the Sundays through May 20, assuredly inflicts irreparable
harm.”).
C.
A TRO Would Not Substantially Injure Other Interested Parties.
A temporary restraining order would not cause substantial harm to others, as Defendants
have effectively conceded by their conduct in allowing and themselves participating in numerous
large outdoor gatherings around the District of Columbia in recent months. Furthermore, the
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 35 of 39

participants in CHBC’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. This will provide strong protection for the health of the church
community and others and err on the side of caution to prevent potential contact and mitigate risk
of disease transmission. The gathering of CHBC’s congregation thus will not create substantial
harm to anyone. See also Maryville, 957 F.3d at 616 (“[A]n injunction appropriately permits
religious services with the same risk-minimizing precautions as similar secular activities, and
permits the Governor to enforce social-distancing rules in both settings.”).
And, generally, the “substantially injure other interested parties” prong involves “a
showing that the balance of hardships warrants an equitable remedy.” Hispanic Affairs Project v.
Perez, 141 F. Supp. 3d 60, 74 (D.D.C. 2015). “[T]he fact that a case raises serious First
Amendment questions compels a finding that there exists the potential for irreparable injury, or
that at the very least the balance of hardships tips sharply in” favor of the party whose First
Amendment rights are being violated. Sammartano v. First Judicial Dist. Court in & for Cty. of
Carson City, 303 F.3d 959, 973 (9th Cir. 2002) (internal quotation marks omitted); see also Soos,
2020 WL 3488742, at *12 (“The balance of hardships tips in plaintiffs’ favor. Indeed, in the
absence of an injunction, plaintiffs’ religious activities will be burdened and continue to be treated
less favorably than comparable secular activities. An injunction, on the other hand, does not
undercut defendants’ interest in controlling the spread of COVID-19, provided that plaintiffs abide
by social distancing guidance.”). Here, Defendants’ actions threaten to bar CHBC’s gathering as
a church. The balance of hardships thus tips sharply in favor of CHBC.
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 36 of 39

D.
The Public Interest in Protecting CHBC’s Constitutional Rights Requires Entry of a
TRO.
Finally, the public interest is well-served by a temporary restraining order that prevents
Defendants from unlawfully burdening the freedom of speech, the freedom of assembly, and the
free exercise of religion. “[I]t is always in the public interest to prevent the violation of a party’s
constitutional rights.” Simms v. District of Columbia, 872 F. Supp. 2d 90, 105 (D.D.C. 2012)
(internal quotation marks omitted). Likewise, “treatment of similarly situated entities in
comparable ways serves public health interests at the same time it preserves bedrock free-exercise
guarantees.” Maryville, 957 F.3d at 616.
IV.
Conclusion

For all the foregoing reasons, Plaintiff’s motion for a temporary restraining order should
be granted.

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
Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 37 of 39

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 3-1 Filed 09/22/20 Page 38 of 39

CERTIFICATE OF COUNSEL PURSUANT TO FED. R. CIV. P. 65(b) AND LCvR 65.1
On June 10, 2020, CHBC submitted an application to Defendants for a waiver from
Defendants’ restrictions on mass gatherings that would allow the Church to meet outdoors as a
congregation in the District. The waiver stated that attendees would wear masks during the
duration of the service and the Church would ensure appropriate social distancing between
households. CHBC resubmitted the waiver request on September 1, 2020. Defendants rejected
CHBC’s waiver request on September 15, 2020.
CHBC, simultaneous with this filing, gave notice of the time of making this application for
a temporary restraining order and provided copies of all pleadings and papers filed in this action
to date by emailing Mayor Bowser’s Office and the District of Columbia Attorney General’s
Office copies of the relevant papers.
Further notice should not be required.

/s/ Matthew T. Martens __________________
Matthew T. Martens

Case 1:20-cv-02710-TNM Document 3-1 Filed 09/22/20 Page 39 of 39

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Memorandum in Support of TRO — CHBC v. Bowser

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