Amicus Brief of 34 U.S. Senators (ECF 39) — CHBC v. Bowser

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U.S. District Court for the District of Columbia · No. 1:20-cv-02710-TNM · Doc. 39 · 2020-10-07 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
 
 
CAPITOL HILL BAPTIST CHURCH, 
 
 
 
Plaintiff, 
 
v. 
 
MURIEL BOWSER, in her official capacity 
as Mayor of the District of Columbia, and 
the DISTRICT OF COLUMBIA, 
 
 
 
Defendants. 
) 
) 
) 
) 
)     CIVIL ACTION NO. 1:20-cv-2710        
)            
) 
) 
) 
) 
 
 
BRIEF OF 34 UNITED STATES SENATORS  
AS AMICI CURIAE IN SUPPORT OF  
PLAINTIFF’S MOTION FOR AN EXPEDITED PRELIMINARY INJUNCTION 
 
 
John M. Gore (D.C. Bar No. 502057) 
Anthony J. Dick (D.C. Bar No. 1015585) 
J. Benjamin Aguiñaga* 
JONES DAY 
51 Louisiana Avenue, N.W. 
Washington, D.C.  20001 
Telephone: 202.879.3939 
ajdick@jonesday.com 
 
Richard D. Salgado* 
JONES DAY 
2727 N. Harwood St., Suite 600 
Dallas, TX 75201 
Telephone: 214.969.3620 
rsalgado@jonesday.com 
 
Counsel for Amici Curiae  
 
*pro hac forthcoming 
 
 
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TABLE OF CONTENTS 
 
Page 
TABLE OF AUTHORITIES ......................................................................................................... ii 
INTEREST OF AMICI CURIAE ................................................................................................... 1 
STATEMENT OF AMICI CURIAE .............................................................................................. 3 
CONCLUSION .............................................................................................................................. 7 
 
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TABLE OF AUTHORITIES 
 
 
Page(s) 
CASES 
Calvary Chapel Dayton Valley v. Sisolak, 
140 S. Ct. 2603 (2020) ...........................................................................................................5, 7 
Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 
138 S. Ct. 2448 (2018) ...............................................................................................................3 
Maryville Baptist Church, Inc. v. Beshear, 
957 F.3d 610 (6th Cir. 2020) .....................................................................................................6 
Pahls v. Thomas, 
718 F.3d 1210 (10th Cir. 2013) .................................................................................................3 
Reed v. Town of Gilbert, Ariz., 
576 U.S. 155 (2015) ...................................................................................................................4 
Rosenberger v. Rector & Visitors of Univ. of Va., 
515 U.S. 819 (1995) .......................................................................................................3, 4, 5, 7 
S. Bay United Pentecostal Church v. Newsom, 
140 S. Ct. 1613 (2020) ...............................................................................................................5 
Soos v. Cuomo, 
__ F. Supp. 3d __, 2020 WL 3488742 (N.D.N.Y. June 26, 2020) ........................................4, 6 
Turner Broad. Sys., Inc. v. FCC, 
512 U.S. 622 (1994) ...................................................................................................................5 
CONSTITUTIONAL AUTHORITIES 
U.S. Const., art. I..............................................................................................................................1 
OTHER AUTHORITIES 
Local Rule 7 .....................................................................................................................................1 
 
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INTEREST OF AMICI CURIAE1 
Amici are United States Senators.  They include Senator Roger F. Wicker of Mississippi, 
Senator Mitch McConnell of Kentucky, Senator James M. Inhofe of Oklahoma, Senator Pat 
Roberts of Kansas, Senator Mike Enzi of Wyoming, Senator John Cornyn of Texas, Senator 
Lindsey Graham of South Carolina, Senator John Thune of South Dakota, Senator John Barrasso 
of Wyoming, Senator James E. Risch of Idaho, Senator Roy Blunt of Missouri, Senator Jerry 
Moran of Kansas, Senator John Boozman of Arkansas, Senator John Hoeven of North Dakota, 
Senator Marco Rubio of Florida, Senator Rand Paul of Kentucky, Senator Tim Scott of South 
Carolina, Senator Ted Cruz of Texas, Senator Bill Cassidy of Louisiana, Senator James Lankford 
of Oklahoma, Senator Tom Cotton of Arkansas, Senator Steve Daines of Montana, Senator 
David Perdue of Georgia, Senator Thom Tillis of North Carolina, Senator Ben Sasse of Nebraska, 
Senator John Kennedy of Louisiana, Senator Cindy Hyde-Smith of Mississippi, Senator Marsha 
Blackburn of Tennessee, Senator Kevin Cramer of North Dakota, Senator Mitt Romney of Utah, 
Senator Mike Braun of Indiana, Senator Josh Hawley of Missouri, Senator Rick Scott of Florida, 
and Senator Kelly Loeffler of Georgia.  
As Senators, amici have a strong interest in ensuring laws enacted by Senate—including, 
as relevant here, the Religious Freedom Restoration Act (“RFRA”)—are interpreted in a manner 
that is consistent with their text and history.  Amici likewise have a strong interest in ensuring 
that the First Amendment, which is RFRA’s constitutional backdrop, is enforced with vigor.  
Finally, as Senators, amici hold constitutional authority to oversee the District of Columbia.  U.S. 
                                            
1 In accordance with Local Rule 7(o), amici certify that (1) this brief was authored 
entirely by their counsel and not by counsel for any party, in whole or in part; (2) no party or 
counsel for any party contributed money to fund preparing or submitting this brief; and (3) no 
other person—beyond amici and their counsel—contributed money that was intended to fund 
preparing or submitting the brief. 
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Const., art. I, § 8, cl. 17.  Amici thus have a unique interest in the District’s compliance with 
RFRA and the Constitution.  Accordingly, amici respectfully support Plaintiff’s motion for an 
expedited preliminary injunction. 
 
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STATEMENT OF AMICI CURIAE 
Freedom of speech “is essential to our democratic form of government.”  Janus v. Am. 
Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448, 2464 (2018).  That freedom 
prohibits the government from “regulat[ing] speech based on its substantive content or the 
message it conveys.”  Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 
(1995).  And as a corollary, it ensures that the government “may not favor one speaker over 
another.”  Id.   
Under the Mayor’s directives, a pastor may conduct a massive organized outdoor 
political demonstration on a Saturday, but may not hold an outdoor church service for his 
congregants the next morning.  Such selective enforcement of COVID-19 restrictions against 
houses of worship violates a core tenet of free speech.  See Pahls v. Thomas, 718 F.3d 1210, 
1238 (10th Cir. 2013) (“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.”).   
Whether viewed as a matter of free speech, the freedom of assembly, or the free exercise 
of religion protected by the Constitution and RFRA, the result is the same: the Mayor’s 
discrimination against houses of worship rests on a mistaken, and unconstitutional, premise that 
one particular exercise of free speech—a church’s desire to gather together and worship their 
God—is subordinate to other First Amendment-protected activities.  This Court should enforce 
the First Amendment’s promise of free speech for all by issuing a preliminary injunction to 
prevent the Mayor and the District of Columbia from prohibiting outdoor religious services that 
adhere to COVID-19 safety protocols. 
1.  Under current District of Columbia COVID-19 restrictions, an outdoor religious 
service may not exceed 100 persons.  ECF 4-16 at 7; ECF 4-22 at 2.  With over 850 congregants, 
the Capitol Hill Baptist Church (the “Church”) cannot hold an outdoor service under the current 
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restrictions.  ECF 5 at 1, ¶ 5.  The Church thus sought a waiver for outdoor services based on the 
Church’s commitment to socially distance each household and require that virtually all attendees 
wear masks.  Id. at 2, ¶ 11.  After remaining silent on the Church’s application for over three 
months, the Mayor’s office eventually notified the Church that “[w]aivers for places of worship 
above that expanded capacity [of 100] are not being granted at this time.”  Id.; ECF 5-7 at 2. 
But the Mayor has treated organized mass demonstrations differently.  On June 6, the 
Mayor addressed thousands of demonstrators (pressed shoulder to shoulder) and proclaimed: 
“It’s so wonderful to see everybody peacefully protesting, wearing their masks.”  ECF 4-29 at 2.  
And over the summer, the District’s Metropolitan Police Department shut down city streets to 
accommodate numerous demonstrations.  See ECF 3-1 at 17–20 (citing examples).  Directly 
asked on MSNBC about the disparate treatment between houses of worship and mass 
demonstrations, the Mayor answered: “First Amendment protests and large gatherings are not the 
same. . . .  [I]n the United States of America, people can protest.”  ECF 4-3 at 22. 
2.  The Mayor’s candid answer on MSNBC—together with her refusal to grant waivers to 
houses of worship “at this time” and her accommodation of organized mass political 
demonstrations—show that the Mayor is enforcing COVID-19 restrictions by “favor[ing] one 
speaker over another.”  Rosenberger, 515 U.S. at 828; see Soos v. Cuomo, __ F. Supp. 3d __, 
2020 WL 3488742, at *12 (N.D.N.Y. June 26, 2020) (“[B]y acting as they did, Governor Cuomo 
and Mayor de Blasio sent a clear message that mass protests are deserving of preferential 
treatment.”).   
The Mayor’s policy of disparate treatment is unconstitutional unless it survives strict 
scrutiny.  See Reed v. Town of Gilbert, Ariz., 576 U.S. 155, 163 (2015) (“Content-based laws—
those that target speech based on its communicative content—are presumptively unconstitutional 
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and may be justified only if the government proves that they are narrowly tailored to serve 
compelling state interests.”); Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994) 
(“[L]aws favoring some speakers over others demand strict scrutiny when the legislature’s 
speaker preference reflects a content preference.”); see also Calvary Chapel Dayton Valley v. 
Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., dissenting from denial of application for 
injunctive relief) (“[T]he directive’s treatment of houses of worship must satisfy strict 
scrutiny[.]”).2  
Yet the Mayor has no compelling government interest in enforcing restrictions against a 
group of 850 socially distanced, mask-wearing outdoor worshippers, while exempting a group of 
thousands of non-socially distanced outdoor demonstrators.  Cf. id., 140 S. Ct. at 2612 
(Kavanaugh, J., dissenting from denial of application for injunctive relief) (“Unless the State 
provides a sufficient justification otherwise, it must place religious organizations in the favored 
and exempt category.”).  The Mayor’s only public justification for this distinction is that “First 
Amendment protests and large gatherings are not the same.”  ECF 4-3 at 22.  But that 
justification turns the First Amendment on its head: “favoring one viewpoint over others is 
anathema to the First Amendment.”  Id. at 2608 (Alito, J., dissenting from denial of application 
for injunctive relief); Rosenberger, 515 U.S. at 828 (“In the realm of private speech or 
                                            
2 The Mayor dismisses Justice Alito’s dissent in Calvary Chapel Dayton Valley on the 
ground that “the [Supreme] Court rejected” it, referring to the Supreme Court’s denial of an 
injunction.  ECF 15 at 35.  But the Mayor overlooks that the Supreme Court applies a different 
(and heightened) standard in considering applications for injunctions than does this Court.  See S. 
Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., 
concurring in denial of application for injunctive relief) (noting that when the Supreme Court 
grants an injunction it “grants judicial intervention that has been withheld by lower courts,” and 
emphasizing that “[t]his power is used where the legal rights at issue are indisputably clear and, 
even then, sparingly and only in the most critical and exigent circumstances” (citations and 
quotation marks omitted; emphases added)).  As a result, the Mayor’s attempt to draw a negative 
inference from the fact that Justice Alito’s writing was a dissent is misguided. 
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expression, government regulation may not favor one speaker over another.  Discrimination 
against speech because of its message is presumed to be unconstitutional.” (citation omitted)).   
The Mayor cannot—under the guise of the First Amendment—pick and choose which 
speakers and messages (similarly situated in all relevant respects) deserve special treatment.  
And as a result, the Mayor has no compelling government interest in distinguishing between 
otherwise similar speakers and messages.  Cf. Soos, 2020 WL 3488742, at *12 (“[T]here is 
nothing materially different about a graduation ceremony and a religious gathering such that 
defendants’ justifications for a difference in treatment can be found compelling.”). 
Neither is the Mayor’s unique treatment of houses of worship narrowly tailored to 
achieve any compelling government interest.  It would be circular, of course, to ask whether the 
Mayor’s treatment of houses of worship is narrowly tailored to achieve her asserted interest in 
distinguishing between organized outdoor political demonstrations and outdoor worship services.  
And even with regard to the Mayor’s general interest in protecting the public health, there is no 
basis to conclude that an outdoor service under the restrictions the Church has proposed would 
be any more of a danger to the public health than an organized political demonstration.   
If anything, the Church’s pledge to enforce heightened safety protocols, including social 
distancing, suggests that the Church’s outdoor services would be less of a danger to the public 
health than organized demonstrations where social distancing is nearly impossible and safety 
protocols are exceedingly difficult to enforce.  The upshot is that the way the Mayor “treat[s] 
religious and non-religious activities suggests that [her enforcement policy] do[es] not amount to 
the least restrictive way of regulating [houses of worship].”  Maryville Baptist Church, Inc. v. 
Beshear, 957 F.3d 610, 613 (6th Cir. 2020).  The Mayor’s policy of selective enforcement 
against some speakers but not others similarly situated fails strict scrutiny. 
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3.  The Mayor’s inability to satisfy strict scrutiny does not hinder her efforts to promote 
other First Amendment-protected activity, such as organized political demonstrations.  “Public 
protests, of course, are themselves protected by the First Amendment, and any efforts to restrict 
them would be subject to judicial review.”  Calvary Chapel Dayton Valley, 140 S. Ct. at 2607 
(Alito, J., dissenting from denial of application for injunctive relief).  Our Nation is better and 
stronger through peaceful public debate.  A constitutional problem arises only when “important 
issues” represented by organized demonstrations lead to special treatment for those speakers, 
while other similarly situated speakers and messages do not enjoy the same treatment.  Id. at 
2608.   
But there is an easy fix.  The Mayor may recognize all First Amendment-activity as equal, 
and draw any necessary distinctions—consistent with the First Amendment—without regard to 
the identity of the speaker or the content of her message.  Applied here, the Mayor simply may 
treat the Church’s proposed outdoor service as she would treat an organized outdoor political 
demonstration with more than 100 people—crediting, in particular, the Church’s commitment to 
enforce robust safety protocols.  Allowing the Church to worship outdoors thus would not, and 
need not, endanger the Mayor’s interest in promoting other First Amendment-protected activities 
or demonstrators’ interest in peacefully expressing themselves. 
CONCLUSION 
Amici urge this Court to enforce the First Amendment’s guarantee that government 
cannot “favor one speaker over another.”  Rosenberger, 515 U.S. at 828.  To that end, amici 
respectfully ask this Court to grant the Church’s motion for an expedited preliminary injunction. 
 
 
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Dated: October 7, 2020 
Respectfully submitted, 
/s/ Anthony J. Dick 
John M. Gore (D.C. Bar No. 502057) 
Anthony J. Dick (D.C. Bar No. 1015585) 
J. Benjamin Aguiñaga* 
JONES DAY 
51 Louisiana Avenue, N.W. 
Washington, D.C.  20001 
Telephone: 202.879.3939 
ajdick@jonesday.com 
 
Richard D. Salgado* 
JONES DAY 
2727 N. Harwood St., Suite 600 
Dallas, TX 75201 
Telephone: 214.969.3620 
rsalgado@jonesday.com 
Counsel for Amici Curiae  
*pro hac forthcoming 
 
 
 
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