The Supreme Court said Gov. John Carney may have violated religious freedom rules, but there was no case precedent at the time of the rapidly developing pandemic under which to judge him. Photo by Pavel Danilyuk/Pexels
A Delaware Supreme Court ruling says it sees “a possible constitutional violation” in COVID restrictions on church gatherings, but ruled the restrictions were within Gov. John Carney ‘s discretion and that he is immune from damages.
“Although singling out Houses of Worship for heightened restrictions was a probable constitutional violation … we affirm the Superior Court’s holding that at the time the Challenged Restrictions were adopted there was no ‘clearly established law’ addressing these particularized facts,” the state Supreme Court said in its ruling.
It also did not formally order future governments to never do that again, but it made it clear that Carney cannot.
“The COVID pandemic was a hard time for everyone, and all actions taken were only intended to keep Delawareans safe, said Carney spokeswoman Ashley Dawson. “The lawyer for the plaintiffs continues to use this case to grandstand and misrepresent the facts. But we understand that the plaintiffs are considering an appeal, so we will not comment further at this time.”
The Supreme Court said that from March to June 2020, when people were urged to stay home and businesses closed to prevent the spread of the virus, which is spread through the air, Carney had erred by essentially closing churches, too.
He prohibited in-person Sunday religious services, indoor preaching, singing, communion, baptism and the elderly to attend church, while allowing Jewish circumcisions. That exception favored one religion over another, argued the Christian ministers.
Thomas Neuberger, who represented Hines pro bono, said the group had 90 days to decide whether to appeal to the U.S. Supreme Court in hopes of having the moves declared unconstitutional.
If the U.S. court did declare the move unconstitutional, Carney could be sued by the churches for damages, Neuberger said, and mused about having Carney, who is running for mayor of Wilmington, having to stand trial.
Landow was represented by Thomas Crumplar of Jacobs & Crumplar.
The written opinion by Judge Abigail M. LeGrow noted that the ministers did not file their case until Dec. 1, 2021, 18 months after the challenged restrictions were lifted. The case was dismissed by the Chancery Court, but appealed to the Superior Court, which also dismissed it. The ministers appealed again to the state Supreme Court.
The ministers were passionate, LeGrow said, but “the judiciary is not the forum to debate and resolve hypothetical questions regarding the constitutionality of restrictions that were lifted long before any legal action was filed.”
The Rev. Christopher Bullock had filed suit in federal court in May 2020 saying Carney’s restrictions violated his rights under the free exercise, establishment, and equal
protection clauses of the U.S. Constitution.
In a mediated settlement in November 2020, the governor agreed not to impose restrictions on gathering in houses of worship and to pay $157,200 “for the benefit of” Bullock and his counsel. The agreement said it did not constitute “an admission or acknowledgement of guilt, wrongdoing, liability, or financial responsibility: on his part or anyone working for him.
Carney’s attorneys argued during the Supreme Court case that the governor is immune from damages for the alleged violations.
They also argued for dismissal claiming that the pastors’ violations of rights were “past exposure,” which is “insufficient to demonstrate that there is a current case or controversy entitling them to declaratory relief.”
The Delaware Supreme Court ruling said both the Chancery and the Superior courts had ruled correctly. It said damages could not be awarded for something that was no longer in effect and that Carney was immune from damages.
It noted that the ministers had not argued that Carney’s Governor’s actions were not taken in good faith or that he acted with gross or wanton negligence.
The court ruling said that case had developed since the restrictions were in place supported the view that they violated the churches’ rights.
It pointed to a U.S. decision in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the court held that a church and synagogue likely would prevail in proving that occupancy limitations at public places of worship violated the Free Exercise Clause of the First Amendment.
“A future governor confronted with a future public-health emergency would have the benefit of that precedent,” the ruling said, but that was not in play when the Delaware restrictions went into effect, the Delaware court said.
“During this time ‘there was no clear consensus among federal or state courts that the governor’s actions were unlawful’,” the ruling said.
Therefore, the ruling said, “We affirm the Superior Court’s finding that the governor’s adoption of the challenged restrictions was an exercise of his discretionary authority, and he
therefore is immune … from … damages claims arising under the Delaware Constitution.”
Delaware LIVE writer Jarek Rutz contributed to this report.
