Washington, D.C. Newsroom, Jun 4, 2020 / 12:30 pm (CNA).- The Bishop of Madison says a lawsuit against Dane County and the city of Madison may be needed to ensure the Church can serve the people of the diocese during the reopening phase of the coronavirus pandemic. 

“I don’t want to fight with anybody, but at the same time I think that there is a religious liberty issue here that we need to stand on in principle,” Bishop Donald Hying of Madison told CNA in an interview on Wednesday evening. 

Attorneys from the Becket Fund for Religious Liberty, acting for the diocese, sent a 17-page letter to Dane County officials and the mayor of Madison on Wednesday, June 3, threatening to file suit against the city and county if additional restrictions placed on houses of worship are not lifted by Friday, June 5. 

Emergency Order 3, issued by Dane County May 22, caps all religious services at a 50-person limit during Phase 1 of reopening. But “essential businesses,” including trampoline parks and shopping malls, are permitted to operate at 25% of the listed fire capacity during the same phase. 

In a public statement issued Wednesday, Hying said that "In the wake of the coronavirus pandemic and the racial injustice of the past week, our community is crying out for unity, for grace, and for spiritual healing. We are ready and able to answer that call, but the 50-person cap has unjustly stifled our pastoral mission."

The previously-issued Emergency Orders 1 and 2 did not include the 50-person cap on attendance, and instead said that houses of worship would be subject to the 25% occupancy limit. Phases 2 and 3 of the reopening plan will also impose an as-of-yet undetermined numerical limit on attendances at religious services. 

In their letter, lawyers for the diocese noted that "in no event, not even in the largest synagogue, mosque, church, or temple, and no matter how carefully spaced or protected, shall more than 50 people gather for worship."

"This unequal and unfair treatment violates the Church’s cherished constitutional freedoms and, more importantly, hobbles unconscionably its pastoral mission," they said. 

Hying told CNA that the change in policy came despite extensive work done by the diocese to accommodate the previous versions of the reopening plan.

“We had carefully worked, meditated on (Emergency) Order number 2, to come up with a plan that was very safe, very prudential, very clear in its guidelines for 25% occupancy for our churches in our 11-county diocese,” he said. The bishop added that he trusted his priests to be prudential in matters related to safety. 

Within 24 of the release of diocesan reopening plan, Emergency Order 3 was issued, “which, for Dane County, put us in a whole different situation,” said Hying. 

The bishop said that there was “no dialogue, no conversation” between the diocese and Dane County in creating any of the reopening guidelines for houses of worship, although the Diocese of Madison had spoken a few times with officials throughout the pandemic. 

Dane County has designated all religious services as “planned gatherings,” placing them on the same footing as a concert or festival event, rather accommodating the everyday operations of a house of worship. Hying told CNA that he disagreed with this interpretation. 

“Our fundamental business is Sunday Mass,” he said. “So what’s the difference between having 25% capacity at Sunday Mass at a church that seats a thousand people, versus 25% capacity in a restaurant or any other establishment?” 

The bishop said he was “very confident” that the parishes in Dane County would be able to safely operate at 25% capacity, as the parishes in the other 10 counties in the diocese had done so the previous weekend. 

“There’s no restrictions on [the other 10 counties] whatsoever, but we asked them to observe the 25%, just so we’d have our gradual approach to reopening,” he said. “And there were no problems at all.”