`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
`CHARLES D. BAKER,
`In his offical capacity as
`Governor of the Commonwealth )
` January 6, 2021
`FINDINGS OF FACT, RULINGS OF
`LAW, AND ORDER FOR JUDGMENT
`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
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`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-
`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
`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
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`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.
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`supplemented by Governor Baker’s subsequent executive orders and
`evidence subject to judicial notice.3
`Governor Baker’s Orders Governing Gatherings and
`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).
`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
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 7 of 40
`patients are receiving treatment in intensive care
`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.
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`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
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`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.
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`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
`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
`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
`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
`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.
`Governor Baker’s Orders Governing Social Distancing and
`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
`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.
`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.
`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
`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
`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-
`Effect of Governor Baker’s Order on Delaney
`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.
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 19 of 40
`Protocols Mandated by the Archdiocese of Boston
`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),
`archdiocese-of-boston/; Liturgical Celebrations and Sacraments,
`Archdiocese of Boston (Apr. 8, 2020),
`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).
`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
`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,
`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).
`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,
`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.
`Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 22 of 40
`Article III Standing
`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.
`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).