Attorney General Curtis Hill on Thursday said Indianapolis’ order limiting church gatherings to no more than 25 people amounts to “unconstitutional and unlawful religious discrimination.”
Hill on Thursday sent a letter to Mayor Joe Hogsett and Marion County Public Health Department director Dr. Virginia Caine telling them their recent restriction on worship services is unconstitutional because the same measure is not imposed on essential or non-essential businesses.
Hill did not take or explicitly threaten legal action against the city, but said in the letter his office had upped its review of state and local regulations imposed during the pandemic.
On Wednesday, Hogsett and Caine signed a new public order that allows churches to meet in person, so long as 25 or fewer people attend. Meanwhile, the order allows retail businesses to open at 50% capacity, and restaurants will be allowed to open next Friday for outdoor dining at 50% capacity.
Hill said places of worship are considered essential businesses, and churches, synagogues and other places of worship must be treated the same as non-religious entities.
“The Supreme Court of the United States has made clear that the First Amendment prohibits the government from singling out people for disfavored treatment because they are religious,” Attorney General Hill wrote to Hogsett and Caine.
Taylor Schaffer, deputy chief of staff for Hogsett, said the city does not believe the public health order disciminates against religious exercise.
“Instead, its restrictions on gathering size is a rule of general applicability regulating any public gatherings,” she said. “Dr. Caine’s order reasonably concludes that entities that gather people together for the purposes of in-person interaction pose a greater communicable disease threat than retail stores that one enters to make a purchase and leave. Indeed, the state’s own orders have, until quite recently, consistently created the same distinction.”
The three-page letter from Hill said it is inappropriate and unlawful to impose special burdens on churches and other religious gatherings. He said the Indianapolis order is problematic for two reasons: It allows essential businesses to open, but places of worship—which he also said are essential—are explicitly prohibited from having more than 25 people. And it restricts churches while non-essential businesses are allowed to operate at 50% capacity.
The First Amendment prohibits the government from singling out people for disfavored treatment because they are religious. Also, Indiana law prohibits the government from limiting the free exercise of religion by anything other than the least-restrictive means necessary to achieve the government’s compelling interest.
“Certainly, the interest of containing or limiting the spread of COVID-19 is a compelling interest,” Hill wrote. “However, it is difficult to imagine that social distancing in a shopping mall at 50% capacity that might have hundreds of people is more effective against spreading the virus than a church with fewer people but also practicing social distancing.”
Indianapolis’ plans for reopening differs from the state’s in that Gov. Eric Holcomb’s plan did not put a limit on the number of people who can attend a church service. Places of worship outside of Marion County were allowed to open Sunday without limits.
The Indianapolis limit on 25 people applies to all social gatherings.
“Absent scientific evidence that COVID-19 spreads more quickly in religious entities and at religious gatherings than other public interactions, Order 9 amounts to unconstitutional and unlawful religious discrimination,” Hill wrote.
Schaffer said it’s the city’s hope that the acting attorney general and his staff will engage in a dialgoue with the Marion County Public Health Department and reconsider their position.
The Indiana Supreme Court on Monday ruled to suspend Hill’s law license for 30 days, and he named his chief deputy to take over his office during that time.