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Hogan calls orders’ challenge moot, negated by high court

Gov. Larry Hogan speaks during a news conference on April 24, 2020 in Annapolis. (The Daily Record / Bryan P. Sears)

Gov. Larry Hogan speaks during a news conference on April 24, 2020 in Annapolis. (The Daily Record / Bryan P. Sears)

A constitutional challenge to Gov. Larry Hogan’s safer-at-home orders has been rendered moot by a relaxation in his pandemic-compelled directives and negated by a U.S. Supreme Court decision upholding restrictions on attendance at houses of worship amid the COVID-19 virus, the governor’s attorneys told a federal appeals court Monday.

As of last Friday, Hogan has essentially rescinded his earlier orders that Marylanders stay at home, gatherings be limited to 10 people and non-essential businesses remain closed, the lawyers stated in opposition to the challenge from clergy members, business owners and three Republican state delegates. Hogan, in his most recent order June 10, permitted businesses to reopen, albeit with continued social distancing and the use of masks, the lawyers from the Maryland Office of the Attorney General stated in papers filed in the 4th U.S. Circuit Court of Appeals.

In addition, the Supreme Court ruled last month that California’s limit of the lesser of 25% percent capacity or 100 people at religious services did not violate the constitutional right to free religious exercise in light of the public health emergency. Under Hogan’s current orders, Maryland’s capacity limit is 50 percent with no cap on attendees, stated Assistant Attorney General Adam D. Snyder, the governor’s lead counsel in the case.

“The Supreme Court has long recognized that ‘a community has the right to protect itself against an epidemic of disease which threatens the safety of its members,’” Snyder wrote, quoting from the justices’ 1905 decision in Jacobson v. Massachusetts. “In that regard, states are permitted to enact ‘quarantine laws and health laws of every description,’ similar to the orders issued here to combat the COVID-19 pandemic.”

The governor’s filing was submitted in opposition to the challengers’ request that the 4th Circuit stay then overturn Hogan’s orders as violating their constitutional rights to hold religious services as they deem appropriate and to gather in large groups. 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 Hogan have been allowed to remain open.

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. Soon after, the Supreme Court upheld California’s restriction on religious attendance in South Bay United Pentecostal Church v. Newsom.

The challengers have held fast to their constitutional arguments in their 4th Circuit appeal of Blake’s decision.

“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,” stated attorneys John R. Garza and Daniel L. Cox, himself a challenger and a Republican delegate who represents Carroll and Frederick counties. “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.”

Under Hogan’s relaxed order of June 10, restaurants were permitted to 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 are allowed.

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

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

County executives and Baltimore Mayor Bernard C. “Jack” Young remain empowered to maintain greater restrictions within their jurisdictions.

Maryland has had 65,007 confirmed cases of COVID-19, including 2,963 deaths, as of Tuesday morning, according to the state health department. Eighteen 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.

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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