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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MARYLAND
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`ANTIETAM BATTLEFIELD KOA, et al.
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` v.
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`LAWRENCE J. HOGAN, et al.
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`Civil Action No. CCB-20-1130
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`*
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`MEMORANDUM
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`This action brought by citizens, business owners, and religious leaders is a challenge to the
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`constitutionality of a series of executive orders issued by Maryland Governor Lawrence Hogan
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`aimed at preventing the spread of COVID-19. The plaintiffs seek both declaratory relief and to
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`enjoin the enforcement of these orders. The court has already denied the request for a preliminary
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`injunction. See Antietam Battlefield KOA v. Hogan, 461 F. Supp. 3d 214 (D. Md. 2020). Now
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`pending before the court is the defendants’ motion to dismiss the plaintiffs’ amended complaint.
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`(ECF 54). The matter has been fully briefed and no oral argument is necessary. See Local Rule
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`105(6). For the reasons discussed herein, the court will grant the defendants’ motion.
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`FACTS AND PROCEDURAL HISTORY
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`This action was instituted on May 2, 2020. (ECF 1). The plaintiffs assert a number of
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`claims under federal law for violations of: (1) the First Amendment’s Free Exercise Clause; (2) the
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`First Amendment’s guarantee of the freedom of assembly; (3) the First Amendment’s Free Speech
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`Clause; (4) the First Amendment’s Establishment Clause; (5) the Fourteenth Amendment’s Equal
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`Protection Clause; (6) Article IV’s guarantee of a republican form of government; (7) the
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`Commerce Clause; and (8) the Fifth Amendment’s Takings Clause. In addition, the plaintiffs assert
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`several violations of rights protected by the Maryland Constitution.
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`On May 20, 2020, this court denied the plaintiffs’ request for a preliminary injunction,
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`holding that the plaintiffs, with respect to their free exercise, free assembly, free speech, and
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`1
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`Case 1:20-cv-01130-CCB Document 71 Filed 11/18/20 Page 2 of 11
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`Commerce Clause claims, had not shown a likelihood of success on the merits. See generally
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`Antietam Battlefield KOA, 461 F. Supp. 3d 214. Specifically, the court found that the plaintiffs
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`failed to show that the Governor’s executive orders1 lacked a real or substantial relation to
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`protecting public health and that they failed to show that the orders effected a plain and palpable
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`invasion of their rights. See id. at 242.
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`Since the plaintiffs’ request for a preliminary injunction was denied, the plaintiffs have filed
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`an amended complaint (ECF 50), which the defendants have moved to dismiss (ECF 54). The
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`amended complaint does not entail any substantive revisions, but merely removes a defendant, adds
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`an attorney, and deletes an unnecessary reference to Virginia Governor Ralph Northam.
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`Accordingly, the court incorporates its previous memorandum opinion for a full recitation of the
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`facts of this case and the applicable legal analysis. Though the substance of the plaintiffs’ claims
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`has not changed, the public health context in which those claims arose has. Since May, the number
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`of positive cases in Maryland has risen to 167,656 and the number of deaths has risen to 4,160.2
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`After a more stable period in late summer and early fall, the state’s positivity rate is now over six
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`percent, with some counties reporting an even higher local rate.
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`1 The restrictions about which the plaintiffs originally complained were relaxed as the public health crisis abated—and,
`unfortunately, may go back into effect as the threat to public health continues to worsen. See, e.g., Executive Order 20-
`05-06-01 (issued May 6, 2020); Executive Order 20-05-13-01 (issued May 13, 2020); Executive Order 20-06-03-01
`(issued June 3, 2020); Executive Order 20-07-29-01 (issued July 29, 2020); Executive Order 20-11-10-01 (issued Nov.
`10, 2020). The frequent issuance of revised public health measures—tightening the restrictions as the severity of the
`crisis increases and loosening the restrictions as the severity of the crisis decreases—is indicative of narrow tailoring.
`2 This data is according to the Maryland Department of Health’s Coronavirus Dashboard. See Maryland Department of
`Health, Coronavirus Disease 2019 (COVID-19) Outbreak, http://coronavirus.maryland.gov (last accessed Nov. 16,
`2020).
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`2
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`Case 1:20-cv-01130-CCB Document 71 Filed 11/18/20 Page 3 of 11
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`STANDARD OF REVIEW
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`To survive a motion to dismiss, the factual allegations of a complaint “must be enough to
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`raise a right to relief above the speculative level on the assumption that all the allegations in the
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`complaint are true (even if doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
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`(2007) (citations omitted). “To satisfy this standard, a plaintiff need not ‘forecast’ evidence
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`sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to
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`establish those elements.” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation
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`omitted). “Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief
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`is ‘probable,’ the complaint must advance the plaintiff’s claim ‘across the line from conceivable to
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`plausible.’” Id. (quoting Twombly, 550 U.S. at 570). Additionally, although courts “must view the
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`facts alleged in the light most favorable to the plaintiff,” they “will not accept ‘legal conclusions
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`couched as facts or unwarranted inferences, unreasonable conclusions, or arguments’” in deciding
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`whether a case should survive a motion to dismiss. U.S. ex rel. Nathan v. Takeda Pharm. North
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`Am., Inc., 707 F.3d 451, 455 (4th Cir. 2013) (quoting Wag More Dogs, LLC v. Cozart, 680 F.3d
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`359, 365 (4th Cir. 2012)).
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`DISCUSSION
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`This case concerns the “freedom of some and the public health of all.” Calvary Chapel San
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`Jose v. Cody, No. 20-cv-03794-BLF, 2020 WL 6508565, at *1 (N.D. Cal. Nov. 5, 2020).3 The
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`Supreme Court has explained that “[r]eal liberty for all could not exist under the operation of a
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`principle which recognizes the right of each individual person to use his own, whether in respect of
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`his person or his property, regardless of the injury that may be done to others.” Jacobson v.
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`Commonwealth of Massachusetts, 197 U.S. 11, 26 (1905). Thus, when faced with a public health
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`crisis, a state may implement measures—such as quarantine laws and public health orders—that
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`3 Unpublished opinions are cited for the soundness of their reasoning and not for their precedential value.
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`3
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`Case 1:20-cv-01130-CCB Document 71 Filed 11/18/20 Page 4 of 11
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`give effect to the community’s “right to protect itself against an epidemic of disease[.]” Id. at 27.
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`Notably, though, this does not give governments an “absolute blank check for the exercise of
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`government power[,]” Robinson v. Attorney General, 957 F.3d 1171, 1179 (11th Cir. 2020), as the
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`police power of a state may be exercised in the form of “regulations so arbitrary and oppressive in
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`particular cases, as to justify the interference of the courts to prevent wrong and oppression[,]”
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`Jacobson, 197 U.S. at 38.
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`Though the Fourth Circuit Court of Appeals has not directly addressed the standard of
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`review for constitutional claims challenging health orders during a pandemic, the Supreme Court in
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`a recent plurality opinion invoked the Jacobson standard when denying an application for injunctive
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`relief against California Governor Gavin Newsom’s executive order aimed at limiting the spread of
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`COVID-19, see S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020), and other
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`circuit courts have applied the framework from Jacobson in a similar context, see, e.g., Robinson,
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`957 F.3d at 1179–80 (11th Cir. 2020); In re Rutledge, 956 F.3d 1018, 1027 (8th Cir. 2020); Adams
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`& Boyle, P.C. v. Slatery, 956 F.3d 913, 925–27 (6th Cir. 2020) (petition for certiorari filed); In re
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`Abbott, 954 F.3d 772, 783–88 (5th Cir. 2020).4 Because this case involves several constitutional
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`challenges to a health order promulgated by the Governor in response to a public health crisis, the
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`court will—consistent with its earlier analysis—apply Jacobson to determine whether the plaintiffs’
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`constitutional claims survive the motion to dismiss.
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`To overturn the Governor’s orders under Jacobson, then, a plaintiff must show either (1)
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`that they have “no real or substantial relation” to protecting public health, or (2) that they are
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`4 The court notes the existence of some contrary authority. In Savage v. Mills, for example, the District of Maine
`characterized Jacobson as “capacious precedent” and expressed its belief that Jacobson will not turn out to “be the
`Rosetta Stone for evaluating the merits of a challenge to any COVID-19-related government regulation.” ___ F. Supp.
`3d ___, No. 1:20-cv-00165-LEW, 2020 WL 4572314, at *5 (Aug. 7, 2020). And in Calvary Chapel Dayton Valley v.
`Sisolak, Justice Alito, writing in dissent and joined by Justices Thomas and Kavanaugh, expressed the view that the
`language in Jacobson is not the last word on what the Constitution allows public officials to do during the COVID-19
`pandemic. 140 S. Ct. 2603, 2608 (2020). Nevertheless, the weight of authority suggests that—for now at least—
`Jacobson remains the proper framework.
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`4
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`Case 1:20-cv-01130-CCB Document 71 Filed 11/18/20 Page 5 of 11
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`“beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 197
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`U.S. at 31. The Constitution, Chief Justice Roberts has reiterated, entrusts “‘[t]he safety and the
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`health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” S.
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`Bay United Pentecostal Church, 140 S. Ct. at 1613 (citing Jacobson, 197 U.S. at 38). “When those
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`officials ‘undertake[ ] to act in areas fraught with medical and scientific uncertainties,’ their latitude
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`‘must be especially broad.’” Id. (citing Marshall v. United States, 414 U.S. 417, 427 (1974)).
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`Accordingly, courts are not to “second-guess the wisdom or efficacy” of public health measures lest
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`they usurp the functions of the politically accountable branches. In re Abbott, 954 F.3d at 785.
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`Still, “to prevent misapprehension of our views,” it is worth reiterating that the court has a duty to
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`“give effect to the Constitution” and prevent “wrong and oppression” where the state enacts
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`regulations that are “arbitrary and oppressive.” Jacobson, 197 U.S. at 31, 38. In short, a pandemic
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`does not present the government with a “blank check” to deny constitutional rights. Robinson, 957
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`F.3d at 1179.
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`As to the first Jacobson test, the plaintiffs have not plausibly alleged that there is no real and
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`substantial relationship between the Governor’s orders and the public health; instead, as the court
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`stated previously, it is “clear that the Governor’s orders have at least a real and substantial relation
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`to protecting public health.” Antietam Battlefield KOA, 461 F. Supp. 3d at 230. The stated
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`objective of the Governor’s executive order was “[t]o reduce the spread of COVID-19” and “to
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`protect and save lives[.]” Executive Order 20-03-30-01 (“EO”).5 The Governor chose to achieve
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`this goal by, among other measures, imposing restrictions on the size of indoor gatherings and
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`imposing a stay-at-home order. Because these limitations restrict in-person contact, they are
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`5 The amended complaint lacks specificity as to which of the Governor’s executive orders are actually being challenged.
`The amended complaint generally refers to the Governor’s orders in a collective sense without distinguishing between
`them, except where the plaintiffs make one reference to the effect of the Governor’s March 30 Executive Order (No. 20-
`03-30-01) on plaintiff Antietam Battlefield KOA. The court will therefore rely on the March 30 order but will reference
`the Governor’s other orders where appropriate.
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`5
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`substantially related to the objective of preventing the spread of COVID-19. The plaintiffs allege in
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`their amended complaint and in their opposition that less restrictive measures are available to
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`Governor Hogan and that it is unequal treatment to designate some businesses—but not theirs—as
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`essential. But alleging that an order goes too far in protecting public health is not the same as
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`pleading that an order has no real and substantial relation to protecting public health. Thus, the
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`plaintiffs have failed to plead allegations sufficient to satisfy the first test under Jacobson.6
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`If their amended complaint is to survive the motion to dismiss, then, it must do so under the
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`second Jacobson test by plausibly alleging that the order involves, “beyond all question, a plain,
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`palpable invasion of rights secured by the fundamental law.” 197 U.S. at 31. Though courts “have
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`not yet defined the precise contours of this standard, it plainly puts a thumb on the scale in favor of
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`upholding state and local officials’ emergency public health responses.” Professional Beauty Fed.
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`of Cal., 2020 WL 3056126, at *7 (internal quotation omitted). With respect to the plaintiffs’ free
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`exercise, free assembly, free speech, and Commerce Clause claims, the court has already explained
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`that those claims were unlikely to succeed on the merits. See Antietam Battlefield KOA, 461 F.
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`Supp. 3d at 230. As the court previously noted, the Governor’s executive orders are neutral and
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`generally applicable, and “rationally related to the legitimate government interest of reducing the
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`spread of COVID-19[.]” Id. at 231, 233. Further, the court stated that the Governor’s orders
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`constituted “time, place, and manner restriction[s]” which were likely to pass muster as they were
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`“narrow[ly] tailor[ed]” and “le[ft] open ample alternative channels for communication[.]” Id. at
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`235, 236. Finally, the court held that the Governor’s order was “not facially discriminatory against
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`6 Cases reviewing orders substantially similar to the one at issue here have reached the same conclusion. See, e.g.,
`Tigges v. Northam, ___ F. Supp. 3d. ___, No. 3:20-cv-410, 2020 WL 4197610, at *7 (E.D. Va. July 21, 2020); Calvary
`Chapel of Bangor v. Mills, 459 F. Supp. 3d 273, 284 (D. Me. 2020); Williams v. Trump, No. C 2495, 2020 WL
`6118560, at *4 (N.D. Ill. Oct. 16, 2020); Lewis v. Walz, No. 20-1212, 2020 WL 5820549, at *5 (D. Minn. Sept. 30,
`2020); Professional Beauty Fed. of Cal. v. Newsom, No. 2:20-cv-04275-RGK-AS, 2020 WL 3056126, at *6 (C.D. Cal.
`June 8, 2020). Nothing in the plaintiffs’ amended complaint supports a finding to the contrary.
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`6
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`interstate commerce” and the plaintiffs had not “present[ed] any evidence that the order has a
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`discriminatory purpose or effect.” Id. at 239. Nothing in the plaintiffs’ amended complaint—
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`which, again, contains no substantive revisions—changes this analysis. Accordingly, the court
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`concludes that the plaintiffs have not plausibly alleged a plain and palpable violation of their rights
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`to free speech, free assembly, or free exercise; nor have they plausibly alleged a plain and palpable
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`violation of the Commerce Clause.
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`What remains, then, are the plaintiffs’ claims under the Establishment Clause, the Equal
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`Protection Clause, the Takings Clause, and Article IV, and some of the claims under the Maryland
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`Constitution.7 The court will proceed to examine each of these remaining claims to determine
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`whether a plain, palpable invasion of rights has been plausibly alleged.
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`I.
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`Establishment Claim
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`The First Amendment prohibits governments from making any law “respecting an
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`establishment of religion[.]” U.S. Const. amend. I. The “clearest command” of this provision is
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`that “one religious denomination cannot be officially preferred over another,” Trump v. Hawaii, 138
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`S. Ct. 2392, 2417 (2018), nor can the government prefer religion over nonreligion, McCreary Cty.,
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`Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005). An Establishment Clause claim
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`will fail under the familiar Lemon v. Kurtzman test if the government action (1) has a secular
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`purpose, (2) has a principal or primary effect that neither advances nor inhibits religion, and (3)
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`does not foster an excessive government entanglement with religion. 403 U.S. 602, 612–13 (1971);
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`see also Mellen v. Bunting, 327 F.3d 355, 367 (4th Cir. 2003). Here, though plaintiffs do provide a
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`rote recitation of the standard for an establishment claim and conclusory allegations that the
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`7 The plaintiffs bring facial and as-applied challenges. “[C]lassifying a lawsuit as facial or as-applied affects the extent
`to which the invalidity of the challenged law must be demonstrated and the corresponding ‘breadth of the remedy,’ but
`it does not speak at all to the substantive rule of law necessary to establish a constitutional violation.” Bucklew v.
`Precythe, 139 S. Ct. 1112, 1127 (2019) (citation omitted).
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`7
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`Governor is displaying “impermissible hostility towards religious gatherings[,]” and is showing
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`“favoritism towards non-religious gatherings[,]” (ECF 50, Am. Compl., ¶¶ 165, 166), the plain
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`terms of the challenged order show that gatherings of more than ten people are prohibited at “all
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`locations and venues[.]”8 In sum, none of the allegations in the amended complaint are sufficient to
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`demonstrate a plain and palpable violation of the plaintiffs’ rights under the Establishment Clause.
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`Accordingly, the plaintiffs’ establishment claim will be dismissed.
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`II.
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`Equal Protection Claim
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`The plaintiffs allege that the Governor’s orders offend their right to equal protection because
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`they “permit the State to treat Plaintiffs differently from other similarly situated political, business[]
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`and non-religious entities” insofar as the orders designate Lowes and Walmart as essential business
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`and permit them “to have hundreds of cars and people[.]” (ECF 50 ¶¶ 95, 176). “The [Equal
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`Protection] Clause requires that similarly-situated individuals be treated alike.” Giarratano v.
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`Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (citing City of Cleburne v. Cleburne Living Ctr., Inc.,
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`473 U.S. 432, 439 (1985)). To state an equal protection claim, a plaintiff must demonstrate that he
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`has been treated differently from others similarly situated and that the unequal treatment was the
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`result of purposeful discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
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`Lowes and Walmart, where people “neither congregate in large groups nor remain in close
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`proximity for extended periods[,]” are not similarly situated to religious institutions, where “large
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`groups of people gather in close proximity for extended periods of time.” S. Bay Pentecostal
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`Church, 140 S. Ct. at 1613. Thus, despite the plaintiffs’ allegations to the contrary, it cannot
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`plausibly be deduced from the amended complaint and the executive orders that businesses such as
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`8 And—because the plaintiffs complain of all of the Governor’s orders collectively—the court notes that subsequent
`orders relaxed the mandates established in the March 30 order, permitting, for example, religious facilities to operate at
`fifty percent capacity, which is the same ceiling set for retail establishments. See Executive Order 20-05-27-01 (issued
`May 27, 2020).
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`8
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`Lowes and Walmart are similarly situated to the religious institutions led by the plaintiff-pastors, or
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`that the state’s distinctions are being drawn on any basis other than the risk posed to the public
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`health.
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`Additionally, if conduct arguably offends two constitutional provisions, one of which
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`provides a more specific protection against that conduct, then ordinarily the more specific provision
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`should be used to resolve the claim. See Graham v. Connor, 490 U.S. 386, 395 (1989). The
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`substance of the plaintiffs’ equal protection claims, which complain of barriers to the exercise of
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`their religion and which do not reference a specific suspect classification, are properly analyzed as a
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`free exercise claim, which the court has already resolved in favor of the defendants. The plaintiffs’
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`equal protection claim accordingly will be dismissed.
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`III. Article IV Claim
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`The plaintiffs contend the Governor’s orders “deprive them of the right to select their own
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`government administration, pass their own laws, and maintain a government administration directly
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`responsible to the people” in violation of Article IV’s Guarantee Clause. (ECF 50 ¶ 188). Article
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`IV “guarantee[s] to every State in [the] Union a Republican Form of Government[.]” U.S. Const.
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`art. IV § 4. The Supreme Court has concluded, however, “that the Guarantee Clause does not
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`provide the basis for a justiciable controversy.” Rucho v. Common Cause, 139 S. Ct. 2484, 2506
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`(citing Pac. States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912)). Accordingly, the
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`plaintiffs’ Article IV claim will be dismissed.
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`IV.
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`Takings Claim
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`The plaintiffs claim that “under Governor Hogan’s Orders, Plaintiffs’ businesses are being
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`taken unlawfully in violation of the Constitution’s Fifth Amendment takings clause[.]” (ECF 50 ¶
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`235). Despite the foregoing language, the court does not read the amended complaint literally to
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`assert a physical occupation or seizure of the plaintiffs’ real property. Instead, the plaintiff
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`9
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`Case 1:20-cv-01130-CCB Document 71 Filed 11/18/20 Page 10 of 11
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`business-owners appear to primarily complain of lost revenue they believe resulted from the
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`Governor’s orders. Specifically, Adventure Park USA9 alleges that it lost $700,000 in revenue and
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`Antietam Battlefield alleges a loss of $50,000. (ECF 50 ¶¶ 23, 24). The Fifth Amendment provides
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`that private property shall not be taken for public use, without just compensation. To state a takings
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`claim, though, “it is not enough to allege that government conduct frustrated a business enterprise,”
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`as the plaintiffs here appear to allege. Savage v. Mills, ___ F. Supp. 3d ____, 2020 WL 4572314, at
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`* 9 (D. Me. 2020). Instead, the Fifth Amendment is directed at government conduct that takes
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`private property or that “denies the beneficial use of property, including legal interests in real or
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`personal property, not the liberty interest to engage in business activity.” Id.; see also Coll. Sav.
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`Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (1999) (“The assets
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`of a business . . . unquestionably are property, and any state taking of those assets is unquestionably
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`a ‘deprivation’ under the Fourteenth Amendment. But business in the sense of the activity of doing
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`business, or the activity of making a profit is not property in the ordinary sense[.]”). The court
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`cannot determine from the amended complaint what property, if any, was alleged to have been
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`taken by the government. The plaintiffs make no concrete allegations that personal property
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`associated with their business was effectively taken from them. Nor have they demonstrated that
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`the inability to sell goods and provide services for a limited period of time can, as a matter of law,
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`constitute a taking of their property. See id. Accordingly, their Fifth Amendment takings claim will
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`be dismissed.
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`9 Adventure Park USA was voluntarily dismissed from this action on July 2, 2020. (See ECF 64, Marginal Order
`Approving Notice of Voluntary Dismissal).
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`10
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`V.
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`State Constitutional Claims
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`The plaintiffs’ claims under the Maryland Constitution are barred by the Eleventh
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`Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (holding
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`that a federal court may not grant relief against state officials on the basis of state law). The court
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`therefore cannot conclude that the executive order is “beyond all question, a plain, palpable
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`invasion” of plaintiffs’ state-law rights. Jacobson, 197 U.S. at 31. Accordingly, the court will also
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`dismiss the plaintiffs’ state law claims.
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`CONCLUSION
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`Jacobson holds that it is not the role of the judiciary to second-guess policy choices favoring
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`one reasonable method of preventing the spread of a disease over another, which is precisely what
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`the plaintiffs request this court to do. Reasonable people, including informed government and
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`public health officials, may debate whether the Governor’s orders at any moment go too far, or not
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`far enough, in protecting the public from this deadly pandemic. But, based on the allegations in the
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`plaintiffs’ amended complaint, the court cannot conclude that Governor Hogan’s measures are
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`arbitrary or unreasonable, or that they plainly violate any of the plaintiffs’ constitutional rights. The
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`court therefore must be cautious not to “usurp the functions of another branch of government” in
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`deciding how best to protect public health. Jacobson, 197 U.S. at 28. Accordingly, the defendants’
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`motion to dismiss will be granted. A separate order follows.
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` 11/18/20
`Date
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` /S/
`Catherine C. Blake
`United States District Judge
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`11
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