Delaware Supreme Court ends lawsuit to keep governor’s emergency orders away from worship

The Delaware Supreme Court has agreed with two lower courts that dismissed lawsuits filed by two pastors seeking to prevent the state’s governor from imposing future restrictions on religious worship.

In its opinion issued Thursday, the court said freedom of religion is an essential tenet of democracy and restrictions on religious worship must be viewed with a great deal of skepticism. But the judiciary is not the forum to debate and resolve hypothetical questions regarding the constitutionality of restrictions that were lifted long before any legal action was filed.

“Moreover, public officials who act under emergent conditions and make careful, discretionary decisions based on the best information available are immune from personal liability if those actions are later determined to be contrary to the law,” the five justices said in the opinion. “For those reasons, we agree with our trial courts that the appellants’ claims could not proceed.”

Gov. John Carney’s office did not respond to a Thursday email seeking comment. Lawyers at the Neuberger Firm, one of the firms representing the pastors, said they were still digesting the ruling.

“We have 90 days to look into that which may be an error in an area not often before our state courts,” Attorney Thomas S. Neuberger said.

What the lawsuits argued

The Rev. Alan Hines, of Townsend Free Will Baptist Church in Townsend, and the Rev. David Landow, of Emmanuel Orthodox Presbyterian Church in Wilmington, filed the lawsuits in late 2021 seeking an injunction against future emergency orders that place restrictions on houses of worship such as those imposed by Carney in 2020 as the COVID-19 pandemic spread.

The pastors had sought a declaration that Carney’s emergency orders were illegal, including:

• Prohibiting in-person Sunday religious services
• Preventing indoor preaching.
• Banning singing.
• Barring the elderly from church.
• Prohibiting Baptism.
• Prohibiting the Lord’s Supper.
• Favoring Jewish circumcisions over Christian baptisms.

More: Lawsuits ask that governors’ emergency orders keep their ‘hands off’ houses of worship

The pastors’ lawsuits claimed Carney’s emergency orders early in the pandemic denied them their “absolute religious freedoms.”

Through their lawsuits, the pastors asked Carney and future Delaware governors to keep their “hands off” the church in future emergencies, regardless of any pretense they may offer.

In Carney’s motion to dismiss the case, his attorneys argued the governor is immune from damages for the alleged violations. They also argued for dismissal because the pastors’ violations of rights were “past exposure,” which is “insufficient to demonstrate that there is a current case or controversy entitling them to declaratory relief.”

On Thursday, the state Supreme Court said all the restrictions challenged by the pastors were lifted by June 2020 — more than 18 months before the pastors filed suit in the Chancery Court. That action, seeking injunctive relief against restrictions that no longer were in effect, was dismissed by Vice Chancellor J. Travis Laster after he concluded Chancery Court lacked subject matter jurisdiction.

More: Why a Delaware judge dismissed a lawsuit challenging future COVID-19 restrictions

The Supreme Court then pointed out the pastors transferred the lawsuit to state Superior Court, where Judge Meghan A. Adams also dismissed the action, saying the pastors’ claims for declaratory relief were not capable of being decided by legal principles or by a court of justice. Adams also concluded the governor was immune from being sued for the damages claims.

More: Why a second judge dismissed lawsuits to stop Delaware governor from restricting worship

In a 45-page opinion, the state Supreme Court agreed with both lower courts.

While the case might appear to be done for now, Neuberger’s firm said the state’s highest court made it clear that governors can never issue such orders again and referred to the final page of the opinion where justices wrote:

“Case law that has developed since the Challenged Restrictions were lifted support the view that the restrictions violated Appellants’ rights. Well after the Challenged Restrictions were lifted, the United States Supreme Court issued its opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, in which the Court held that a church and synagogue established that they would likely prevail in proving that occupancy limitations at public places of worship violated the Free Exercise Clause of the First Amendment. A future governor confronted with a future public-health emergency would have the benefit of that precedent, but it was not available at the time Appellee made the decisions at issue.”

Send tips or story ideas to Esteban Parra at (302) 324-2299 or eparra@delawareonline.com.