Capitol Hill Baptist Church, a prominent and influential church in the District of Columbia, has sued Mayor Muriel Bowser and the District for violating its right to worship as guaranteed by the First Amendment.
In March, Bowser issued an executive order prohibiting churches from gathering to worship, whether indoors, or out, citing the COVID-19 pandemic. Under the District’s four-stage plan, CHBC’s in-person worship gatherings will be prohibited until there is an “effective cure or vaccine” for COVID-19—a scenario that could take many months or even years to come to fruition. The District of Columbia is still in Phase 2 of the four-step plan to reopen, which means gatherings are limited to 100 people or up to 50 percent of the building’s capacity, whichever is fewer. For the last several months, the 850-member Capitol Hill Baptist Church (CHBC) has been meeting in a field outside a Virginia church.
For the 142-year-old congregation, “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,” according to the lawsuit.
Moreover, per the church’s covenant, which is recited at all members’ meetings and before communion is administered, members agree that they “will not forsake the assembling of [them]selves together,” which is commanded in the Bible.
“CHBC desires to gather for a physical, corporate gathering of believers in the District of Columbia on Sunday, September 27, 2020, and on subsequent Sundays, and would do so but for those actions of the Defendants that are the subject of this Complaint,” the lawsuit charges.
For those who aren’t well acquainted with the discussions about ecclesiastical polity (operational and governance structure of a church) going on in evangelical circles, CHBC Senior Pastor Mark Dever has been at the forefront of a movement to encourage churches to be biblically faithful in their preaching, theology, understanding of the Gospel, conversion and membership policies, as well as church discipline and church leadership. His seminal (in my opinion) book, Nine Marks of a Healthy Church, launched the 9Marks ministry, which has led to a clarifying debate about what a healthy church looks like (you can read about the 9 Marks here).
I’ve benefitted greatly from the ministry’s resources and have attended services at CHBC several times when visiting family in D.C. It’s an ethnically diverse congregation with no bells or whistles—music is simple, consisting mostly of hymns, with sermons lasting an hour. The simple, stripped-down services, which are heavy on theology and eschew entertainment, manage to attract a large number of young people, many of them likely exhausted from years of entertainment-focused youth ministries at other churches.
Justin Sok, a pastor at CHBC, explained the reasons for the lawsuit in a statement on the church’s website. “Since its founding in 1878, CHBC has met in-person every Sunday except for three weeks during the Spanish Flu in 1918,” he stated. “That changed following Mayor Bowser’s first orders concerning COVID-19 on March 11, 2020. Since that time, the members of CHBC—most of whom live in the District—have been unable to meet in person, as one congregation inside District limits (even outdoors).”
“CHBC has applied for multiple waivers to the policy. District officials refuse to provide CHBC with a waiver beyond 100 persons as part of a mass gathering,” said Sok. The lawsuit filed Tuesday, he said, asks that CHBC be permitted to meet in-person “with similar restrictions as area businesses and other gatherings have employed to protect public health.”
“A church is not a building that can be opened and closed. A church is not an event to be watched. A church is a community that gathers regularly and that community should be treated fairly by the District government,” declared Sok.
On June 10, the church requested a waiver from the worship ban from the mayor’s office, asking to meet at RFK Stadium, where they could all worship together while social distancing. The mayor’s office ignored the request and subsequent appeals until Sept. 15, when it denied the request.
“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′” and pointed out that capacity limits for places of worship were “double the District’s current prohibition on mass gatherings of more than fifty (50) persons,” suggesting that they ought to be grateful for that minuscule concession.
Further, the letter stated that “[w]aivers for places of worship above that expanded capacity are not being granted at this time” therefore, the request “is denied.'”
Not so fast, Mayor Bowser.
The lawsuit points out the inconsistencies in waiver approvals:
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.” 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.
The lawsuit claims Bowser and the District “have been discriminatory in their application of the ban on large scale gatherings,” citing a June 6 appearance by Bowser at a gathering of tens of thousands of anti-racism protesters where she declared that the crowd was “wonderful to see.” In addition, the District’s Metropolitan Police Department closed city streets “to accommodate protests and marches of thousands to tens of thousands of people.” Not only that, 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.”
In addition, many museums, restaurants, and other entertainment venues in D.C. are open and Metro services have been restored to pre-COVID levels.
“Creating an exception for mass protests and not other types of First Amendment activities is constitutionally forbidden content-based discrimination and thus violates CHBC’s free speech rights,” the church asserts.
It would be one thing if the lockdown policies were being enforced consistently, but the hypocrisy of shuttering churches while allowing protesters to gather, aided and abetted by the police and the District, is breathtaking.
“The First Amendment protects both mass protests and religious worship,” the lawsuit explains. “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.'”
Long before anyone ever heard of COVID-19, CHBC had made the “convictional choice not to hold multiple services, instead capping attendance at the capacity of its auditorium.”
On March 13, Senior Pastor Mark Dever announced that the church would not be streaming its services online.
Because a video of a sermon is not a substitute for a covenanted congregation assembling together and all the various means of God's grace in that. I think it would be healthier to respect God's strange providence in a period of abstinence from meeting together.
— Mark Dever (@MarkDever) March 13, 2020
The church is asking the U.S. District Court for the District of Columbia for relief in the form of a declaration that the mayor and the District of Columbia have unlawfully burdened the church’s free speech rights and their right to peaceably assemble under the First Amendment and that the District has violated CHBC’s religious free exercise rights under the Religious Freedom Restoration Act. The church is also asking the court to declare that their Fifth Amendment right to due process has been violated. They seek a temporary restraining order, “preliminarily enjoining, and permanently enjoining Defendants from prohibiting Plaintiff from physically gathering as a congregation in the District of Columbia if conducted with appropriate social distancing practices.”
“Meeting in-person as one congregation is a deeply-held religious conviction for which there is no substitute,” Pastor Sok said. “Our simple desire is to have a community and one that meets together safely.”
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