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Hogan’s safer-at-home foes pursue 4th Circuit injunction

A state police trooper directs a flow of cars in downtown Annapolis participating in a protest against restrictions ordered by Gov. Larry Hogan to fight the spread of the coronavirus. (The Daily Record/Bryan P. Sears)

A state police trooper directs a flow of cars in downtown Annapolis participating in an April protest against restrictions ordered by Gov. Larry Hogan to fight the spread of the coronavirus. (The Daily Record/Bryan P. Sears)

Clergy members, business owners and three Republican state delegates pressed a federal appeals court Thursday to block as unconstitutional the safer-at-home orders Maryland Gov. Larry Hogan has issued in an effort to balance stanching the COVID-19 pandemic with a desired return to normality.

The challengers argued in papers filed with the 4th U.S. Circuit Court of Appeals that the orders violate their constitutional rights to hold religious services as they deem appropriate and to gather in groups of more than 10 people. Operators of the private Antietam Battlefield KOA Campground and Adventure Park USA, who are also plaintiffs, contend the governor’s orders have deprived them of equal protection, as businesses deemed “essential” by the governor are allowed to remain open.

“We are now at the 97th day of Catastrophic Emergency Powers,” wrote the challengers’ attorneys, John R. Garza and Daniel L. Cox, himself a challenger and a Republican delegate who represents Carroll and Frederick counties.

“Thirty days ago was Mother’s Day – where we didn’t see our mothers under the stay-in-home order; sixty days ago was Good Friday – where we were banned from church by the large gathering ban for ‘non-essential’ activities order,” Garza and Cox added. “Ninety days ago was leading up to St. Patrick’s Day – where we were banned from restaurants and bars by order. Still today, the lockdown continues to deny Maryland memories and the progression of society, by its cancelation of high school graduations and killing the romance of June weddings, the prevention of final goodbyes at funerals, all by executive orders extending the 10-person gathering limitation – while the sting of it all snickers at us like a bad dream that won’t end.”

U.S. District Judge Catherine C. Blake rejected the challenger’s constitutional arguments last month, saying Hogan’s emergency directives were narrowly tailored to achieve Maryland’s compelling interest in protecting the public from the deadly virus. The clergy’s claim took another hit in May when the U.S. Supreme Court ruled 5-4 that California’s limit of 100 people at religious gatherings did not violate the constitutional right to free exercise of religion in light of the need to protect public health.

Citing the high court’s ruling, the Maryland clergy said Hogan’s more restrictive 10-person limit crossed the constitutional line.

“Not even California is limiting a pastor from calling a congregation to worship unless it is 10 or less people, or outdoor only, preventing singing of congregants, or preventing the taking of the Holy Sacraments, as Maryland executives are doing,” Garza and Cox wrote.

“Just as America cannot survive without the First Amendment and Bill of Rights, to the faithful, Holy Communion is one of the sacraments or ornaments of faith,” they added. “It is not acceptable solely in a virtual or drive-in service. Neither is intimate corporate prayer, or genuine fellowship one with another. Only in true presence and association may religious practice be protected.”

Regarding the general rights of people to assemble, the challengers told the 4th Circuit that “that stay-in-home, large gathering and facial covering orders have no basis in either state statute or constitutional executive powers to force house arrests of six million Marylanders or threaten its duly elected members of the legislature with arrest for assembling and speaking in groups greater than 10 people.”

Garza, of Rockville, and Cox, of Emmitsburg, are solo practitioners.

Hogan spokeswoman Shareese Churchill stated via email Friday that “we remain confident that the 4th (U.S.) Circuit Court of Appeals will uphold the District Court’s conclusion that Governor Hogan’s actions in response to the COVID-19 crisis have been reasonable, lawful, and science-based.”

On Wednesday, Hogan announced an easing of COVID-19-related restrictions.

However, county executives and Baltimore Mayor Bernard C. “Jack” Young remain empowered to maintain greater restrictions within their jurisdictions, the challengers noted.

Under Hogan’s relaxed orders, restaurants may resume indoor dining as of 5 p.m. June 12 so long as they limit their facilities to 50% capacity and keep tables at least 6 feet apart with no more than six people per table unless they all live within the same household. No buffets and no self-service dining would be allowed.

Schools are also allowed to schedule graduation ceremonies. Amusement parks, mini-golf and go carts are also permitted to open. Pools, which were already allowed to open at 25% capacity, can increase capacity to 50%.

As of 5 p.m. June 19, the state will allow gyms to open at 50% capacity. Casinos, malls and arcades will also be allowed to reopen.

Maryland has had 60,613 confirmed cases of COVID-19, including 2,773 deaths, as of Friday morning, according to the state health department. Twenty-three people died of the virus during the previous 24 hours, the department reported.

In addition to Cox and a group of pastors, those seeking an injunction against Hogan’s orders include Dels. Warren E. Miller, R-Howard and Carroll, and Neil Parrott, R-Washington; and the ad hoc group Reopen Maryland LLC, which has rallied in Annapolis in opposition to the governor’s directives;

Hogan’s counsel from the Maryland attorney general’s office will have a right to respond to the challengers’ filing based on a briefing schedule to be set by the 4th Circuit. The appeals court has not stated when it will rule on the challenge to the orders.

The case is docketed at the 4th Circuit as Antietam Battlefield KOA et al. v. Lawrence J. Hogan Jr., No. 20-1579.

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