Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 1 of 40
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`______________________________
`
`
`
`)
`
`
`
`VINCENT DELANEY,
`
`
`)
`
`
`
`
`
`)
`
`
`
`
`Plaintiff,
`)
`
`
`
`
`
`
`)
`
`
`v.
`
`
`
`)
`
`
`
`
`
`
`)
`CHARLES D. BAKER,
`
`)
`In his offical capacity as
`)
`Governor of the Commonwealth )
`of Massachusetts,
`
`)
`
`
`
`
`
`
`)
`
`
`
`Defendant.
`)
`______________________________)
`
`YOUNG, D.J.
`
`
`
`
`
`CIVIL ACTION
`NO. 20-11154-WGY
`
` January 6, 2021
`
`FINDINGS OF FACT, RULINGS OF
`LAW, AND ORDER FOR JUDGMENT
`
`
`I.
`
`INTRODUCTION
`On June 18, 2020, Vincent Delaney (“Delaney”), a resident
`of Peabody, Massachusetts, filed suit against Charles D. Baker
`(“Governor Baker”) in his official capacity as the Governor of
`the Commonwealth of Massachusetts for executive orders issued in
`a state of emergency pertaining to COVID-19, a novel
`coronavirus. Compl. ¶¶ 1-5, ECF No. 1. Delaney alleged five
`counts against Governor Baker: violation of the Due Process and
`Equal Protection Clauses of the Fifth, Ninth, and Fourteenth
`Amendments of the U.S. Constitution for alleged harm to
`Delaney’s pecuniary and professional interests (“Count I”),
`violation of the free exercise clause of the First Amendment of
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`______________________________
`
`
`
`)
`
`
`
`VINCENT DELANEY,
`
`
`)
`
`
`
`
`
`)
`
`
`
`
`Plaintiff,
`)
`
`
`
`
`
`
`)
`
`
`v.
`
`
`
`)
`
`
`
`
`
`
`)
`CHARLES D. BAKER,
`
`)
`In his offical capacity as
`)
`Governor of the Commonwealth )
`of Massachusetts,
`
`)
`
`
`
`
`
`
`)
`
`
`
`Defendant.
`)
`______________________________)
`
`YOUNG, D.J.
`
`
`
`
`
`CIVIL ACTION
`NO. 20-11154-WGY
`
` January 6, 2021
`
`FINDINGS OF FACT, RULINGS OF
`LAW, AND ORDER FOR JUDGMENT
`
`
`I.
`
`INTRODUCTION
`On June 18, 2020, Vincent Delaney (“Delaney”), a resident
`of Peabody, Massachusetts, filed suit against Charles D. Baker
`(“Governor Baker”) in his official capacity as the Governor of
`the Commonwealth of Massachusetts for executive orders issued in
`a state of emergency pertaining to COVID-19, a novel
`coronavirus. Compl. ¶¶ 1-5, ECF No. 1. Delaney alleged five
`counts against Governor Baker: violation of the Due Process and
`Equal Protection Clauses of the Fifth, Ninth, and Fourteenth
`Amendments of the U.S. Constitution for alleged harm to
`Delaney’s pecuniary and professional interests (“Count I”),
`violation of the free exercise clause of the First Amendment of
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 2 of 40
`
`
`
`the U.S. Constitution (“Count II”),1 violation of Massachusetts
`General Laws Chapter 639 of the Acts of 1950, the Civil Defense
`Act, and Articles XX and XXX of the Massachusetts Declaration of
`Rights (“Count III”), violation of the Equal Protection Clause
`of the Fourteenth Amendment to the U.S. Constitution and Article
`I of the Massachusetts Declaration of Rights (“Count IV”), and
`violation of the First, Fifth, Ninth, and Fourteenth Amendments
`to the U.S. Constitution and Articles I, IV, X, and XII of the
`Massachusetts Declaration of Rights (“Count V”). Id. ¶¶ 255-
`286.
`On July 31, 2020, Delaney filed a motion for a preliminary
`injunction and, pursuant to Rule 41(a) of the Federal Rules of
`Civil Procedure, moved to dismiss Count III entirely and Counts
`IV and V partially insofar as those counts raised matters of
`state law. Pl.’s Mot. Prelim. Inj. 1-2, ECF No. 13; Pl.’s Mem.
`Supp. Pl.’s Mot. Prelim. Inj. (“Pl.’s Mem.”), ECF No. 14; Pl.’s
`Stipulation Dismissal 1, ECF No. 15.
`
`
`1 Delaney also claims that Governor Baker infringed upon the
`Establishment Clause and his First Amendment right of peaceable
`assembly. See Pl.’s Mem. Opp’n Mot. Dismiss & Reply Def.’s
`Opp’n Mot. Prelim. Inj. 10-14 (“Pl.’s Opp’n Mem.”), ECF No. 22.
`On the same grounds that Delaney lacks standing to challenge the
`orders under the Free Exercise Clause, Delaney lacks standing to
`challenge the orders under the Assembly Clause, see infra Part
`III.A.2. (lack of concrete and particularized injury) and
`Establishment Clause, see infra Part III.A.3. (lack of
`redressability).
`
`[2]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 3 of 40
`
`
`
`Governor Baker opposed the preliminary injunction and moved
`to dismiss the complaint on four grounds: (1) Delaney lacked
`standing to challenge Governor Baker’s actions, (2)
`notwithstanding Delaney’s lack of standing, Delaney failed to
`establish a likelihood of success on the merits of his
`challenges, (3) Delaney failed to demonstrate irreparable harm,
`and (4) the balance of hardships and the public interest
`strongly favored upholding Governor Baker’s orders. Mot.
`Dismiss, ECF No. 18; Def.’s Mem. Supp. Mot. Dismiss. & Opp’n
`Mot. Prelim. Inj. (“Def.’s Mem.”) 10-30, ECF No. 19. Delaney
`filed an opposition to Governor Baker’s motion to dismiss.
`Pl.’s Opp’n Mot. Dismiss, ECF No. 21; Pl.’s Mem. Opp’n Mot.
`Dismiss & Reply Def.’s Opp’n Mot. Prelim. Inj. (“Pl.’s Opp’n
`Mem.”), ECF No. 22.
`On September 2, 2020, after hearing argument of counsel by
`video conference, this Court granted Governor Baker’s motion to
`dismiss as to Counts I, IV, and V. Elec. Clerk’s Notes (Sept.
`2, 2020), ECF No. 23. This Court also collapsed the motion for
`preliminary injunction with trial on the merits in accordance
`with Rule 65(a) of the Federal Rules of Civil Procedure and set
`a bench trial for October 2, 2020. Id. On October 1, 2020,
`Delaney and Governor Baker jointly filed stipulated findings of
`fact. Joint Proposed Finding Fact (“Joint Finding”), ECF No.
`24. On October 5, 2020, the Court held a remote hearing on
`
`[3]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 4 of 40
`
`
`
`Count II, and, after hearing argument of counsel, took the
`matter under advisement. Elec. Clerk’s Notes (Oct. 5, 2020),
`ECF No. 25.
`On December 10, 2020, the Massachusetts Supreme Judicial
`Court held that Governor Baker’s declaration of an emergency
`arising from the COVID-19 pandemic, and his issuance of orders
`pursuant to that declaration, are authorized under
`Massachusetts’s Civil Defense Act, that the emergency orders do
`not violate the principle of separation of powers in Article 30
`of the Massachusetts Declaration of Rights, and that the
`emergency orders do not violate the plaintiffs’ federal2 or state
`constitutional rights to procedural and substantive due process
`or free assembly. Desrosiers v. Governor, 486 Mass. 369 (2020).
`After considering the record and parties’ arguments, this
`Court rules in favor of Governor Baker.
`II. FINDINGS OF FACT
`The parties filed a joint finding of fact for trial on the
`merits. See generally Joint Finding. The joint finding, as
`stipulated by the parties, is substantially reproduced below and
`
`
`2 The Supreme Judicial Court is, of course, the final word
`on matters of state law (none of which are present here).
`Delaney, however, is not bound by its federal law rulings in a
`case to which he was not a party. He is entitled to this
`Court’s independent adjudication in this separate opinion.
`
`[4]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 5 of 40
`
`
`
`supplemented by Governor Baker’s subsequent executive orders and
`evidence subject to judicial notice.3
`A.
`Governor Baker’s Orders Governing Gatherings and
`Occupancy Limits
`On March 10, 2020, Governor Baker declared a state of
`emergency for the Commonwealth of Massachusetts, and
`Massachusetts remains in a state of emergency to date. Joint
`Finding ¶ 1. In connection with the state of emergency,
`Governor Baker issued a series of executive orders. Id. ¶ 2.
`On March 23, 2020, Governor Baker issued Order 13, which
`prohibited gatherings of ten or more persons in any confined
`indoor or outdoor space throughout Massachusetts. Id. ¶ 3.
`Order 13 enumerated a list of “essential services” to combat the
`pandemic and temporarily closed the brick-and-mortar premises of
`all “non-essential businesses.” COVID-19 Order No. 13, Order
`Assuring Continued Operation of Essential Services in the
`Commonwealth, Closing Certain Workplaces, and Prohibiting
`Gatherings of More Than 10 People (Mar. 23, 2020), Ex. A. The
`ten-person limitation did not apply to businesses identified in
`the Order as “essential services,” which could continue
`operation under social distancing and occupancy guidelines
`issued by the Commissioner of Public Heath on March 25, 2020.
`
`
`3 A list of Governor Baker’s orders can be found at COVID-19
`State of Emergency, mass.gov, https://www.mass.gov/info-
`details/covid-19-state-of-emergency (last visited Jan. 5, 2021).
`
`[5]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 6 of 40
`
`
`
`Id. § 1. Order 13 did not close “[c]hurches, temples, mosques,
`and other places of worship,” which could continue operation
`subject to the ten-person limit, id. §§ 2-3, and the Order
`allowed gatherings in excess of ten persons in “unenclosed,
`outdoor space,” such as parks, athletic fields, and parking
`lots, id. § 3.
`On May 18, 2020, Governor Baker issued Order 33, which
`modified Order 13 and introduced a “phased” reopening of
`entities restricted by Order 13. Joint Finding ¶ 5. This order
`relieved places of worship and other “Phase I” entities from
`Order 13’s ten-person limitation on gathering. Id. Order 33
`required these entities to comply with general workplace safety
`protocols outlined in Order 33, including but not limited to
`social distancing of at least six feet, hygiene protocols, and
`cleaning protocols. Id. Order 33 noted the “recent public
`health data indicat[ing] improvement in key areas of
`measurement” and that this
`improving public health data permits a carefully
`phased relaxation of certain restrictions that COVID-
`19 Order No. 13 has placed on businesses and other
`organizations, provided that any adjustment can only
`be maintained or expanded on the basis of continuing
`improvements in the public health data, and further
`provided that any adjustment must reflect the reality
`that the Commonwealth remains in the midst of a public
`health emergency, as demonstrated by reporting from
`the Department of Public Health that as of May 17,
`2020, 2,597 persons remained hospitalized in the
`Commonwealth as a result of COVID-19 and 702 of these
`
`[6]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 7 of 40
`
`
`
`patients are receiving treatment in intensive care
`units.
`
`Joint Finding, Ex. B, COVID-19 Order No. 33, Order Implementing
`a Phased Reopening of Workplaces and Imposing Workplace Safety
`Measures to Address COVID-19 at 2 (May 18, 2020), ECF No. 24-2.
`Order 33 remains in effect. Joint Finding ¶ 5.
`Contemporaneous with Order 33, the Director of Labor
`Standards issued workplace standards for places of worship on
`May 18, 2020. Joint Finding, Ex. C, Sector-Specific Workplace
`Standards for Places of Worship and Religious Services (May 18,
`2020) (“May 18th Rules”), ECF No. 24-3. The May 18th Rules
`encouraged, but did not require, places of worship to hold
`services virtually or outdoors and, when holding services
`outdoors, to ensure that attendees who are not from the same
`immediate household are spaced at least six feet apart. Id. at
`1. These rules also encouraged places of worship holding
`services indoors to place tape or other visual distancing
`markings on seating to delineate six-foot separations, to post
`signage indicating the maximum number of persons permitted per
`row, to accommodate orderly entering and exiting of services in
`a manner that complies with social distancing, and to modify the
`means of collecting financial contributions and communal rituals
`to minimize contact. Id. at 2-3.
`
`[7]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 8 of 40
`
`
`
`The May 18th Rules required places of worship to institute
`the following safety measures: an occupancy limit of forty
`percent of the building’s maximum capacity for services held
`indoors, a social-distancing requirement of six feet between
`attendees who are not part of the same immediate household, a
`requirement that all attendees must wear a mask, a prohibition
`on non-religious pre- or post-service communal gatherings, and
`disinfection and notification protocols. Id. at 1-3.
`On July 6, 2020, the Director of Labor Standards issued new
`rules for places of worship and religious services,
`substantially reiterating the May 18th Rules, with the notable
`exception that the new rules increased the occupancy limit from
`forty to fifty percent of the building’s maximum capacity.
`Joint Finding, Ex. C, Sector Specific Workplace Standards for
`Places of Worship and Religious Services to Address COVID-19 at
`1-4 (July 6, 2020) (“July 6th Rules”), ECF No. 24-3.
`Pursuant to Orders 35 and 37, general retail stores, which
`beginning on June 8, 2020 could reopen their physical premises
`in Phase II, were subject to a forty percent occupancy limit.
`COVID-19 Order No. 35, Order Clarifying the Progression of the
`Commonwealth’s Phased Workplace Re-Opening Plan and Authorizing
`Certain Re-Opening Preparations at Phase II Workplaces (June 1,
`2020); COVID-19 Order No. 37, Order Authorizing the Re-Opening
`of Phase II Enterprises (June 6, 2020); Joint Finding ¶ 7. That
`
`[8]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 9 of 40
`
`
`
`limit was increased to fifty percent in revised sector-specific
`standards issued on July 10, 2020. Joint Finding ¶ 7.
`Several later orders also addressed the size of gatherings,
`including Order 38, issued on June 6, 2020 which restated the
`ten-person limitation on gatherings in any confined indoor or
`outdoor space. Id. ¶ 8. This limitation did not apply to any
`Phase I or II entities and thus did not apply to places of
`worship. Id. Order 38 prohibited outdoor events that “gather
`large numbers [of] participants or spectators,” but permitted
`“outdoor gatherings for the purpose of political
`expression . . . .” Id. (quoting Joint Finding, Ex. D, COVID-19
`Order No. 38, Revised Order Regulating Gatherings Throughout the
`Commonwealth at 3 (June 6, 2020), ECF No. 24-4). On July 2,
`2020, Governor Baker issued Order 44, which increased the limit
`for gatherings to a new maximum of twenty-five persons in any
`confined indoor space and 100 persons for enclosed outdoor
`spaces. Joint Finding, Ex. E, COVID-19 Order No. 44, Second
`Revised Order Regulating Gatherings Throughout the Commonwealth
`at 2-3 (July 2, 2020), ECF No. 24-5; Joint Finding ¶ 9. These
`limitations did not apply to any Phase I, II, or III entity,
`including places of worship. Joint Finding ¶ 9. Order 44
`continued Order 38’s prohibition on outdoor gatherings for
`purposes other than political expression. Id.
`
`[9]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 10 of 40
`
`
`
`Thereafter, on August 7, 2020, Governor Baker issued Order
`46, which maintained the twenty-five-person limitation for
`gatherings in enclosed indoor spaces but reduced the limitation
`for outdoor gatherings to fifty persons. Id. ¶ 10. These
`limitations on gathering size did not apply to any Phase I, II,
`or III entity, including places of worship. Id. Order 46
`further stated that “[o]utdoor gatherings for the purpose of
`political expression and gatherings for religious activities
`shall not be subject to” the above limitations, “provided,
`however, that indoor gatherings for the purposes of political
`expression shall be governed by the indoor limitations” of Order
`46. Id. (quoting Joint Finding, Ex. F, COVID-19 Order No. 46,
`Third Revised Order Regulating Gatherings Throughout the
`Commonwealth at 3 (Aug. 7, 2020), ECF No. 24-6).
`On September 29, 2020, Governor Baker issued Order 52,
`which maintained the twenty-five-person limitation for
`gatherings in enclosed indoor spaces. Joint Finding, Ex. G,
`COVID-19 Order No. 52, Phase III, Step 2 Order Regulating
`Gatherings in the Commonwealth (Sept. 29, 2020), ECF No. 24-7.
`Order 52 section 3(d) provided that outdoor gatherings in
`settings open to the public and at event venues, clubs, parks,
`and other outdoor spaces (public or private) regularly used or
`available for gatherings through lease, license, permit,
`reservation, or similar arrangement are limited to 100 persons
`
`[10]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 11 of 40
`
`
`
`if the venue is located in “Lower Risk Communities,” defined in
`Order 51 as communities with low incidence of COVID-19, as
`measured by the Department of Public Health in accordance with
`the health metrics further specified in Order 51. Joint Finding
`¶ 11. In communities that did not qualify as Lower Risk
`Communities, gatherings at the foregoing venues were limited to
`fifty persons. Id. Outdoor gatherings at private residences,
`in private backyards, and other outside venues not listed were
`limited to fifty persons regardless whether they occurred in
`Lower Risk Communities or communities that did not qualify as
`Lower Risk Communities. Id.
`Order 52’s limitation on gathering size did not apply to
`indoor religious activities, which instead remained subject to
`the fifty percent occupancy limitation set forth in the
`applicable sector-specific standards governing places of
`worship. Id. Outdoor religious gatherings, therefore, were not
`subject to any size limitation. Id. Indoor gatherings for the
`purpose of political expression were subject to Order 52’s
`twenty-five-person limitation, while outdoor gatherings for
`political expression were not subject to Order 52’s limitation
`on outdoor gatherings. Id.
`On November 2, 2020, Governor Baker issued Order 54,
`reducing the gathering-size limit in private residences to ten
`persons indoors and twenty-five persons outdoors. Def.’s Notice
`
`[11]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 12 of 40
`
`
`
`Suppl. Authority (Nov. 10, 2020), Ex. A, COVID-19 Order No. 54,
`Revised Order Further Regulating Gatherings in the Commonwealth
`§ 3(b)-(c) (Nov. 2, 2020), ECF No. 26-1. The limits on
`gatherings in public spaces and at event venues remained the
`same, but the Order required that “[a]ll gatherings, no matter
`the size or location, must end and participants must disperse by
`9:30 pm, with the exceptions of religious gatherings and
`political gatherings.” Id. § 4.
`On December 8, 2020, Governor Baker issued Order 57.
`Def.’s Notice Suppl. Authority (Dec. 14, 2020), Ex. A, COVID-19
`Order No. 57, Further Revised Order Regulating Gatherings in the
`Commonwealth (Dec. 8, 2020), ECF No. 29-1. Order 57 reduces to
`fifty the number of people allowed at outdoor gatherings, event
`venues, and in public settings, while exempting places of
`worship from this limit. Id. at 3-5. On the same day, Governor
`Baker also issued Order 58. Def’s Notice Suppl. Authority (Dec.
`14, 2020), Ex. B, COVID-19 Order No. 58, Order Returning All
`Municipalities to Phase III, Step 1 COVID-19 Safety Rules (Dec.
`8, 2020), ECF No. 29-2. Updated sector-specific standards
`reduced the occupancy limits for places of worship, restaurants,
`grocery stores, and other retail stores from fifty to forty
`percent. See Def.’s Notice Suppl. Authority (Dec. 14, 2020),
`Ex. C, Sector Specific Workplace Standards for Places of Worship
`and Religious Services to Address COVID-19 (“December 11th
`
`[12]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 13 of 40
`
`
`
`Rules”) (Dec. 11, 2020), ECF No. 29-3; Def.’s Notice Suppl.
`Authority (Dec. 14, 2020), Ex. C, Sector Specific Workplace
`Safety Standards of Retail Businesses to Address COVID-19 (Dec.
`11, 2020), ECF No. 29-3; Def.’s Notice Suppl. Authority (Dec.
`14, 2020), Ex. C, Sector Specific Workplace Safety Standards for
`Restaurants to Address COVID-19 (Dec. 11, 2020), ECF No. 29-3.
`On December 22, 2020, Governor Baker issued Order 59.
`Def.’s Notice Suppl. Authority (Dec. 24, 2020), Ex. A, COVID-19
`Order No. 59, Order Temporarily Applying Further Capacity
`Restrictions to Statewide COVID-19 Safety Rules (Dec. 22, 2020),
`ECF No. 30-1. Order 59 became effective on December 26, 2020
`and remains in effect until January 10, 2021 unless further
`extended. Id. at 5. Order 59 reduces the limitations on
`gatherings set forth in Order 57 and the occupancy limitations
`set forth in Order 58’s sector-specific standards. Id. at 3.
`With respect to gatherings, the Order reduces the public and
`private outdoor limitation to twenty-five persons and the public
`and private indoor limitation to ten persons. Id. With respect
`to occupancy, the Order reduces the occupancy limit from forty
`percent to twenty-five percent for retail businesses, offices,
`restaurants, close contact personal services, theaters and
`performance venues, fitness centers, and places of worship. Id.
`at 3-4. Order 59 excludes workers and staff from the occupancy
`
`[13]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 14 of 40
`
`
`
`count for retail businesses, restaurants, close contact personal
`services, places of worship, and indoor and outdoor events. Id.
`B.
`Governor Baker’s Orders Governing Social Distancing and
`Hygiene Measures
`Under both the initial and subsequent sector-specific
`standards applicable to places of worship, attendees at indoor
`and outdoor religious services who are not part of the same
`immediate household must be seated at least six feet apart, but
`members of the same immediate household are permitted to sit
`together (i.e., less than six feet apart). Joint Finding ¶ 12.
`Restaurants, which were designated as Phase II entities,
`initially could provide outdoor dining beginning in Phase II,
`Step 1 (on June 8, 2020), and thereafter could provide indoor
`dining in Phase II, Step 2 (on June 22, 2020). Id. ¶ 14. Under
`prior sector-specific standards, restaurants, although not
`subject to numerical or percentage-based occupancy limits when
`operating as restaurants, were limited in the number of people
`they may accommodate by virtue of the six-foot-distance
`requirement between indoor tables unless divided by nonporous
`barriers that are at least six-feet high. Id. The standards
`initially allowed up to six persons to sit at indoor tables, and
`as of September 28, 2020, updated standards allowed up to ten
`persons to sit at indoor tables. Id. Order 59 imposed a
`twenty-five percent occupancy limit on restaurants and close
`
`[14]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 15 of 40
`
`
`
`contact personal services. Def.’s Notice Suppl. Authority (Dec.
`24, 2020), Ex. A, COVID-19 Order No. 59 at 3-4.
`Social distancing was not required for political protestors
`who attended outdoor protests, but under Order 46 (effective
`August 11, 2020), persons from unrelated households attending an
`indoor gathering for purposes of political expression were
`subject to the six-foot social distancing requirement set forth
`in Order 46, as reiterated in Order 52. Joint Finding ¶ 15.
`C.
`Governor Baker’s Orders Governing Face Coverings
`On May 1, 2020, Governor Baker issued Order 31, which
`provides that any person over the age of two who is in an indoor
`or outdoor place open to the public and is unable to maintain a
`six-foot distance from every other person must wear a mask or
`cloth face covering except where unable to do so because of a
`medical condition or where the person is otherwise exempted by
`Department of Public Health guidance. Id. ¶ 16. Any person who
`declines to wear a mask or cloth face covering because of a
`medical condition is not required to produce documentation
`verifying the condition. Id. Order 31 also requires all
`persons to wear a mask or cloth face covering at all times,
`regardless whether they can maintain a six-foot distance from
`other persons, when inside grocery stores, pharmacies, and other
`retail stores, as well as when providing or using mass public
`transit, taxi, ride-sharing, or other similar services. Id.
`
`[15]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 16 of 40
`
`
`
`On August 7, 2020, Governor Baker issued Order 46,
`requiring all participants not from the same household over the
`age of two to wear face coverings unless unable to do so due to
`a medical or disabling condition during both indoor and outdoor
`gatherings of more than ten persons. Id. ¶ 17. The requirement
`applied to “all venues and locations,” including private homes
`and backyards, parks, athletic fields, and parking lots, and
`regardless whether the participants were able to maintain a six-
`foot distance between each other. Id.
`On September 29, 2020, Governor Baker issued Order 52,
`amending Order 46’s mask requirement to apply to all persons
`over the age of five. Id. ¶ 18. Under the sector-specific
`standards applicable to places of worship, “all attendees and
`staff” must wear masks or cloth face coverings “while inside and
`while entering and exiting places of worship or otherwise
`participating in in-person services,” regardless whether a six-
`foot distance can be maintained. Id. ¶ 19. Exceptions exist
`for individuals who are unable to wear a mask or cloth face
`covering due to a medical or disabling condition, and under
`Order 52 places of worship may refuse entry to persons who
`refuse to wear a mask or cloth face covering for non-medical
`reasons. Id. Under the December 11th Rules, a leader or
`celebrant conducting a religious service may remove his or her
`face covering while doing so, provided that he or she is able to
`
`[16]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 17 of 40
`
`
`
`maintain a distance of at least six feet from other persons.
`See December 11th Rules at 3. Although not explicitly stated in
`the sector-specific standards, an attendee may remove his or her
`mask to receive communion. Joint Finding ¶ 19. Because Orders
`46 and 52 apply to “all locations and venues,” these Orders,
`which apply in addition to the sector-specific standards,
`require that more than ten persons attending indoor or outdoor
`religious gatherings from different households must wear masks
`regardless whether they can maintain a six-foot distance from
`each other. Id.
`Sector-specific standards applicable to restaurants specify
`that both employees and customers are required to wear face
`coverings unless unable to do so due to a medical condition or
`disability. Id. ¶ 20. Under these standards, employees are
`required to wear face coverings at all times and customers must
`wear face coverings unless seated at tables. Id.
`Pursuant to Orders 46 and 52, more than ten persons from
`different households attending indoor or outdoor gatherings for
`the purpose of political expression are required to wear masks
`regardless whether they can maintain a six-foot distance from
`other persons. Id. ¶ 21. Prior to these orders, and pursuant
`to Order 31, persons attending indoor or outdoor gatherings for
`the purpose of political expression were required to wear a mask
`
`[17]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 18 of 40
`
`
`
`or cloth face covering only if they were unable to maintain a
`six-foot distance from other persons. Id.
`On November 2, 2020, Governor Baker issued Order 55,
`requiring all persons over the age of five to wear face-
`coverings in all public places, even if they maintain six feet
`of distance from others. Def.’s Notice Suppl. Authority (Nov.
`10, 2020), Ex. B, COVID-19 Order No. 55, Revised Order Requiring
`Face Coverings in Public Places § 1 (Nov. 2, 2020), ECF No. 26-
`2.
`
`Effect of Governor Baker’s Order on Delaney
`D.
`Pursuant to Governor Baker’s orders, when Delaney attends
`his Catholic services at his church in the Archdiocese of
`Boston, he must wear a mask and maintain a physical distance of
`at least six feet from other persons unless they live in the
`same household. Joint Finding ¶ 23. Due to the occupancy
`limit, Delaney’s parish would be required to deny him entry if
`the occupancy limit were met or exceeded at the time he arrives
`at church. Id. ¶ 24. Moreover, the “format and structure” of
`Delaney’s church services has changed, id. ¶ 25, and the parish
`churches that he attends have reduced the number of religious
`services and other events since Governor Baker’s state of
`emergency, id. ¶ 27.
`
`[18]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 19 of 40
`
`
`
`Protocols Mandated by the Archdiocese of Boston
`E.
`The Archdiocese of Boston, like many organizations in
`Massachusetts, instituted and continuously updates its own
`protocols for keeping its patrons safe during the pandemic. See
`Current Protocols for Parishes in the Archdiocese of Boston,
`RCAB Office of Risk Management (last updated Dec. 11, 2020),
`https://www.rcabrisk.org/current-protocols-for-parishes-in-the-
`archdiocese-of-boston/; Liturgical Celebrations and Sacraments,
`Archdiocese of Boston (Apr. 8, 2020),
`https://www.bostoncatholic.org/sites/g/files/zjfyce871/files/202
`0-04/UPDATED_Liturgical%20Directives.pdf.4 The protocols mirror
`many of the protocols outlined in Governor Baker’s orders and go
`above and beyond those precautions. See Current Protocols for
`Parishes in the Archdiocese of Boston, supra. The Archdiocese
`gives pastors the right to refuse entry to the church if a
`patron refuses to wear a mask, requires all volunteers to have
`their temperature taken, requires all parishioners to have their
`temperatures taken in a “Red Zone,” and prohibits congregational
`singing. Id. The Archdiocese has also updated its liturgical
`
`
`4 This Court takes judicial notice of the relevant facts
`provided on these websites, which are “not subject to reasonable
`dispute because [they] . . . can be accurately and readily
`determined from sources whose accuracy cannot reasonably be
`questioned.” See Fed. R. Evid. 201(b).
`
`
`
`[19]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 20 of 40
`
`
`
`directives and issued a dispensation from the religious
`obligation to attend weekly service until “public celebration of
`Mass can be safely resumed.” Liturgical Celebrations and
`Sacraments, supra.
`F.
`COVID-19 in the Commonwealth of Massachusetts
`The parties stipulate to the following: “It has been proven
`that the wearing of masks can slow the transmission of the
`spread of the coronavirus. However, it has not been
`conclusively proven that the wearing of masks protects all mask-
`wearers from being infected with COVID-19.” Joint Finding ¶ 22.
`This Court also takes judicial notice of the following: as
`of January 2021, over 20,700,000 people in the United States
`have contracted COVID-19 since January 21, 2020, over 350,000
`people have died from the virus, Massachusetts has reported over
`32,000 new cases in the last seven days and over 380,000 cases
`since January 21, 2020. United States COVID-19 Cases and Deaths
`by State, Centers for Disease Control and Prevention,
`https://covid.cdc.gov/covid-data-
`tracker/#cases_deathsper100klast7days (last visited Jan. 5,
`2021).5 Massachusetts has suffered over 12,609 deaths from the
`virus since January 21, 2020, including over 501 in the last
`
`
`5 This Court takes judicial notice of the relevant facts
`provided on this website, which are “not subject to reasonable
`dispute.” Fed. R. Evid. 201(b).
`
`[20]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 21 of 40
`
`
`
`seven days alone. Id. Across the United States, the number of
`reported cases and deaths remain at record highs. Trends in
`Number of COVID-19 Cases and Deaths in the US Reported to CDC,
`by State/Territory, Centers for Disease Control and Prevention,
`https://covid.cdc.gov/covid-data-
`tracker/#trends_dailytrendscases (last visited Jan. 5, 2021).
`III. RULINGS OF LAW
`Only Count II, Delaney’s first amendment challenges, remain
`before this Court. See Elec. Clerk’s Notes (Sept. 2, 2020).
`Delaney makes four principal contentions: (1) that the occupancy
`limits at his place of worship infringe upon the free exercise
`of his religion; (2) that the social distancing guidelines
`applicable to churches infringe upon the free exercise of his
`religion; (3) that the mask mandate in his parish violates his
`religious beliefs and infringes upon the free exercise of his
`religion, and (4) that the mask mandate in all public places
`violates his religious beliefs and infringes upon the free
`exercise of his religion. Compl. ¶¶ 131-184, 222-224, 261-268;
`see generally Pl.’s Opp’n Mem. Governor Baker argues that
`Delaney lacks standing and, in the alternative, that Governor
`Bakers’ orders do not violate Delaney’s First Amendment rights.
`See Def.’s Mem. 10-30.
`
`[21]
`
`
`
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 22 of 40
`
`
`
`Article III Standing
`A.
`Governor Baker first contends that Delaney fails to satisfy
`the standing requirements imposed by the case or controversy
`provision of Article III, Section II of the U.S. Constitution.
`Def.’s Mem. 10-30; see U.S. Const. art. III, § 2; Lujan v. Defs.
`of Wildlife, 504 U.S. 555, 560-61 (1992).
`To establish Article III standing, a plaintiff must
`establish an injury in fact that is (1) concrete,
`particularized, and actual or imminent, (2) traceable to the
`challenged action of the defendant, and (3) redressable by a
`favorable ruling. Lujan, 504 U.S. at 560-61.
`1.
`Legal Standard
`Turning first to whether an alleged injury is concrete,
`particularized, and actual or imminent, the plaintiff must show
`that “he personally has suffered some actual or threatened
`injury . . . .” Valley Forge Christian Coll. v. Americans
`United for Separation of Church and State, 454 U.S. 464, 472
`(1982) (quotations omitted).
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
