Delaney v. Baker

Filing 31

Judge William G. Young: ORDER entered. FINDINGS OF FACT, RULINGS OF LAW, AND ORDER FOR JUDGMENT For these reasons, the Court finds and rules and, thus declares, that Governor Bakers orders did not violate Delaneys constitutional rights. SO ORDERED. (Sonnenberg, Elizabeth)

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 1 of 40

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
______________________________
)
VINCENT DELANEY,
)
)
Plaintiff,
)
)
v.
)
CIVIL ACTION
)
NO. 20-11154-WGY
CHARLES D. BAKER,
)
In his offical capacity as
)
Governor of the Commonwealth )
of Massachusetts,
)
)
Defendant.
)
______________________________)
YOUNG, D.J.

January 6, 2021
FINDINGS OF FACT, RULINGS OF
LAW, AND ORDER FOR JUDGMENT

I.

INTRODUCTION
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

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 2 of 40

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-

286.
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
redressability).
[2]

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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.
2, 2020), ECF No. 23.

Elec. Clerk’s Notes (Sept.

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.
24.

Joint Proposed Finding Fact (“Joint Finding”), ECF No.
On October 5, 2020, the Court held a remote hearing on

[3]

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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’ federal 2 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.
[4]

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supplemented by Governor Baker’s subsequent executive orders and
evidence subject to judicial notice. 3
A.

Governor Baker’s
Occupancy Limits

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.
Finding ¶ 1.

Joint

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/infodetails/covid-19-state-of-emergency (last visited Jan. 5, 2021).
[5]

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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 COVID19 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

[6]

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patients are receiving treatment in intensive care
units.
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.
1.

Id. at

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.

[7]

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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.

[8]

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.

[9]

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

[10]

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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.
¶ 11.

Joint Finding

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.

[11]

Def.’s Notice

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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.

Baker also issued Order 58.

On the same day, Governor

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

[12]

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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.
at 3-4.

Id.

Order 59 excludes workers and staff from the occupancy

[13]

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count for retail businesses, restaurants, close contact personal
services, places of worship, and indoor and outdoor events.
B.

Id.

Governor Baker’s Orders Governing Social Distancing and
Hygiene Measures

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

[14]

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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.
C.

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.

[15]

Id.

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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 sixfoot 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 sixfoot 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

[16]

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

[17]

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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 facecoverings 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. 262.
D.

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.

[18]

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E.

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),
https://www.rcabrisk.org/current-protocols-for-parishes-in-thearchdiocese-of-boston/; Liturgical Celebrations and Sacraments,
Archdiocese of Boston (Apr. 8, 2020),
https://www.bostoncatholic.org/sites/g/files/zjfyce871/files/202
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).

[19]

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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

Sacraments, supra.
F.

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 maskwearers 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,
https://covid.cdc.gov/covid-datatracker/#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).
[20]

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,
https://covid.cdc.gov/covid-datatracker/#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.

[21]

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A.

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.
1.

Lujan, 504 U.S. at 560-61.

Legal Standard

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).

“Concreteness and particularity

are two separate requirements.”

Lyman v. Baker, 954 F.3d 351,

360 (1st Cir. 2020) (citing Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1545 (2016)).
exist[s].”

An injury is “concrete” when it “actually

Id. (quotations omitted).

An injury is

“particularized” when it “affect[s] the plaintiff in a personal
and individual way,” Lujan, 504 U.S. at 560 n.1, that goes

[22]

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beyond widely shared “generalized grievances about the conduct
of the government,” Lyman, 954 F.3d at 361 (citing Becker v.
Fed. Election Comm’n, 230 F.3d 381, 390 (1st Cir. 2000)).

An

imminent injury is one where the threatened harm is “certainly
impending,” as opposed to mere “allegations of possible future
injury.”

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013)

(brackets and emphases omitted); Lujan, 504 U.S. at 564 n.2.
Allegations of future harm absent any demonstration that said
future harm is “certainly impending” is too speculative to
satisfy Article III.

Clapper, 568 U.S. at 401, 409.

Next, to satisfy Article III standing, the injury must be
traceable to the challenged action of the defendant.
U.S. at 560.

Lujan, 504

This “traceability” element, essentially a

causation element of Article III standing, “requires the
plaintiff to show a sufficiently direct causal connection
between the challenged action and the identified harm.”
Dantzler, Inc. v. Empresas Berríos Inventory & Operations, Inc.,
958 F.3d 38, 47 (1st Cir. 2020) (quoting Katz v. Pershing, LLC,
672 F.3d 64, 71 (1st Cir. 2012)).

Although an indirect causal

relationship is not prima facie fatal, an injury is less likely
to satisfy this requirement where the causal chain between the
defendant’s action and the alleged harm depends on actions of a
third party.

See id. at 48 (citing Allen v. Wright, 468 U.S.

737, 757-59 (1984) (holding that the plaintiff lacked standing

[23]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 24 of 40

where the actions of multiple third parties acting independently
were critical to the plaintiff’s alleged causal chain); Simon v.
E. Kentucky Welfare Rights Org., 426 U.S. 26, 42-45 (1976)
(holding that the plaintiff lacked standing because the
decisions of independent hospitals where critical to the causal
chain despite the hospitals being subject to the nonenforcement
of the statute at issue)).
Finally, the injury must be redressable by a favorable
ruling.

Lujan, 504 U.S. at 561-62.

A favorable ruling need not

redress the entire injury, but the plaintiff must demonstrate
that a favorable ruling will at least lessen the injury.

See

Antilles Cement Corp. v. Fortuno, 670 F.3d 310, 318 (1st Cir.
2012) (holding that the plaintiff had standing where it
demonstrated that if the laws at issue were preempted, the
plaintiff would have significantly greater business
opportunities).

This demonstration is “‘substantially more

difficult’ to establish” when the plaintiff’s injury arises from
the government’s regulation of someone else.
562 (quoting Allen, 468 U.S. at 758).

Lujan, 504 U.S. at

There, both “causation

and redressability . . . hinge on the response of the regulated
(or regulable) third party to the government action or
inaction . . . .”

Id.

In such indirect-regulation

circumstances,

[24]

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The existence of one of more of the essential elements of
standing “depends on the unfettered choices made by
independent actors not before the courts and whose exercise
of broad and legitimate discretion the courts cannot
presume either to control or to predict,” and it becomes
the burden of the plaintiff to adduce facts showing that
those choices have been or will be made in such manner as
to produce causation and permit redressability of injury.
Id. (citations omitted) (quoting ASARCO Inc. v. Kadish, 490 U.S.
605, 615 (1989)).
2.

Delaney’s Occupancy-Limit Challenge Is Not
Particularized, Actual, or Imminent.

Delaney’s first challenge to Governor Baker’s orders, that
his First Amendment right to freely exercise his religion is
infringed by the maximum occupancy limits, fails at this first
requirement.

See Lujan, 504 U.S. at 560; Lyman, 954 F.3d at

360; Joint Finding ¶¶ 23-28; Compl. ¶¶ 261-268.

This injury is

not concrete and particularized, nor is it actual or imminent.
See Lujan, 504 U.S. at 560; Lyman, 954 F.3d at 360; Joint
Finding ¶¶ 23-28.
The joint finding is devoid of any evidence that Delaney
was ever denied access to his parish church, let alone that such
a denial was due to Governor Baker’s occupancy limit.
Finding ¶¶ 23-28.

See Joint

Because the injury of being denied access to

his church does not exist, this injury is not concrete.
Lyman, 954 F.3d at 360.

See

Similarly, there is no injury to be

particularized to Delaney, as he has not been affected “in a
personal and individual way,” Lujan, 504 U.S. at 560 n.1, and

[25]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 26 of 40

his allegations amount to a “generalized grievance about the
conduct of the government,” Lyman, 954 F.3d at 361.
The joint finding only demonstrates a possibility of injury
in a hypothetical scenario where Delaney arrives at his parish
to find the maximum occupancy reached. 6

See Joint Finding ¶ 24.

This potential for denial remains too speculative for this Court
to find it “certainly impending,” particularly without any
showing that Delaney has been denied entry in the past or that
the parish church regularly denies parishioners from entering
due to Governor Baker’s occupancy limit.

See Clapper, 568 U.S.

at 409; Joint Finding ¶¶ 23-28.
Absent any showing that Delaney has been subject to such
actual exclusion, or that such harm is “certainly impending” the
next time Delaney arrives at his parish door, he lacks standing
to challenge the Orders. 7

See Clapper, 568 U.S. at 409.

6

The joint finding states that Delaney’s “parish church[]
would be required to deny entry to him if the occupancy limit
were already met or exceeded at the time of his attempt to
obtain admittance to a parish church; and, in such
circumstances, a parish church would be required to exclude him
from activities occurring in the church building at that time,
including a Holy Mass.” Joint Finding ¶ 24. The joint finding
lacks any evidence that the number of regularly attending
parishioners exceeds twenty-five, forty, or fifty percent of the
church’s capacity -- evidence without which this Court cannot
infer the likelihood that Delaney could be denied access in the
future. See Clapper, 568 U.S. at 409; Lujan, 504 U.S. at 560.
7 For the same reasons, Delaney’s challenge to Order 38,
which prohibited outdoor activities with the exception of those
for the purpose of political expression, fails for lack of

[26]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 27 of 40

3.

Delaney’s Indoor Mask Mandate and Social
Distancing Challenges Are Not Redressable.

Delaney also argues that the mask mandate violates his
religious beliefs and therefore his First Amendment right to the
free exercise of his religion and that the social distancing
guidelines for churches are an affront to the free exercise of
his religion.

See Pl.’s Mem. 11-14; Pl.’s Opp’n Mem. 9-13.

Setting aside, for a moment, the mask mandate outside of
Delaney’s parish, the mask mandate within his parish and
Delaney’s injury from the social distancing guidelines within
his parish fail to allege a redressable injury. 8

See Lujan, 504

standing. See Clapper, 568 U.S. at 409. The joint finding is
devoid of any evidence that Delaney had planned to attend a
religious ceremony outside, and therefore the injury is not
concrete, particularized, and actual or imminent. See id.
8

Regarding Delaney’s injury from the social distancing
order, Delaney alleges the following:
Plaintiff’s closeness to God is heightened in his
communion with fellow Catholics in close proximity.
Whether it is a hug in greeting, a handshake in the
gesture of peace, fellowship after Holy Mass, or the
resonance felt in a chorus of song, visceral moments
of communion are essential in the practice of his
faith. These acts of sacred ritual and human
connection are essential to being Catholic.
Compl. ¶ 168 (citing Psalms 100:2). Regarding Delaney’s
injury from the mask mandate, Delaney alleges that “being
forced to wear a mask is contrary to his faith and an
affront to God.” Compl. ¶ 222 (citing 2 Corinthians 3:12).
The parties did not stipulate to this injury in the joint
finding, see generally Joint Finding, but for the reasons
articulated in Part III.B., infra, this Court finds that

[27]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 28 of 40

U.S. at 562 (holding that the plaintiff has the burden of
demonstrating causation and redressability for indirect
causation standing).

Delaney alleges an indirect-causation

injury: Delaney is claiming that Governor Baker’s orders are the
cause of his parish’s protocols which are infringing on the
exercise of his religion.
Finding.

See Pl.’s Mem. 7; see generally Joint

There is no evidence, however, that the Archdiocese

instituted its protocols only because of Governor Baker’s
orders, and even had it done so, there is no evidence that a
favorable ruling would result in redress of Delaney’s injury.
See generally Joint Finding.

The joint finding is devoid of any

evidence of whether or how Delaney’s parish would operate
differently in the absence of such orders.

As discussed above,

the Archdiocese of Boston instituted its own protocols to
protect its parishioners and other attendees.
Celebrations and Sacraments, supra.

See Liturgical

Although many of these

protocols reflect Governor Baker’s orders and the sectorspecific standards, the Archdiocese exercised its own broad and
legitimate discretion in setting additional protocols to keep
its attendees safe, such as its dispensation from the religious
obligation to attend mass weekly and its prohibition on
congregational singing.

See id.

Delaney ultimately bears the

they were implied and uncontested.
560; Lyman, 954 F.3d at 360.

See Lujan, 504 U.S. at

[28]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 29 of 40

burden to “adduce facts showing that those choices have been or
will be made in such a manner as to produce causation and permit
redressability of injury.”

See Lujan, 504 U.S. at 562.

Delaney

has not proven that, but for Governor Baker’s orders, the
Archdiocese would institute rules that would remedy his wearing
a mask inside and his social distance from non-family members in
church.

See generally Joint Finding.

Failing to meet this

burden makes the prospect of redressability too speculative, and
Delaney therefore lacks standing to challenge the mask mandate
and social distancing requirements within parishes.

See Lujan,

504 U.S. at 562.
B.

Delaney’s Mask-Mandate Challenge in Public Places
Fails Under Both the “Tiers of Scrutiny” and Jacobson.

Returning to the mask mandate outside his parish, Delaney
has standing to challenge this action by Governor Baker because
this direct-causation injury does not suffer the same
infirmities as the other indirect-causation injuries discussed
above.

This Court is not in the business of interpreting the

Bible and has no reason to question the sincerity of Delaney’s
religious beliefs.

Similarly, Governor Baker does not question

the sincerity of Delaney’s religious faith.
Finding.

See generally Joint

Accordingly, this Court finds Delaney’s faith and the

representations he makes regarding his interpretation of the
Bible to be sincere and implied in the joint finding.

[29]

See

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 30 of 40

Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531
(1993) (noting that it was not for the Supreme Court to decide
whether Santeria was a religion, and instead taking the
petitioners’ uncontested desire to sacrifice animals for
religious purposes as sincere).
1.

Legal Standard

Delaney and Governor Baker dispute the legal standard to be
applied in this case.

Governor Baker argues that this Court

ought apply the standard set forth in Jacobson v. Massachusetts,
197 U.S. 11 (1905), while Delaney argues that this Court ought
apply the traditional “tiers of scrutiny.”

See Pl.’s Mem. 12;

Def.’s Mem. 13.
In Jacobson, the Supreme Court upheld a Massachusetts
statute granting municipal boards of health the authority to
mandate vaccination and revaccination.

197 U.S. at 12.

The

Supreme Court applied a standard of review dissimilar from the
tiers of scrutiny now synonymous with constitutional review
because Jacobson predates the tiers of scrutiny by thirty to
sixty years depending on which academic you ask.

See United

States v. Caroline Prods. Co., 304 U.S. 144, 152 n.4 (1938);
Lindsay F. Wiley & Stephen I. Vladeck, Coronavirus, Civil
Liberties, and the Courts: The Case Against “Suspending”
Judicial Review, 133 Harv. L. Rev. 179, 193 (2020).

Jacobson’s

standard affords States enduring a society-threatening epidemic

[30]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 31 of 40

the discretion reasonably to restrict constitutional protections
so long as the regulations have a “real or substantial relation”
to protecting the public health and safety, and the restraint is
not “beyond all question, a plain, palpable invasion of the
rights secured” by the Constitution.

197 U.S. at 29, 31.

Delaney and a chorus of scholars, Justices, and courts
argue that Jacobson’s standard is improper, particularly when
applied to First Amendment challenges.

See, e.g., Roman

Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 69-72
(2020) (per curiam) (Gorsuch, J., concurring); Calvary Chapel
Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (mem.)
(Alito, J., dissenting); County of Butler v. Wolf, Civil Action
No. 2:20-cv-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020);
Wiley & Vladeck, supra, at 179-83.

In a speech to the

Federalist Society, Justice Alito recently cautioned that
religious liberties were under attack and criticized the
application of Jacobson to First Amendment challenges.

The

Federalist Society, Address by Justice Samuel Alito [2020
National Lawyers Convention], YouTube (Nov. 12, 2020),
https://www.youtube.com/watch?v=VMnukCVIZWQ.

More recently in

his concurring opinion in Roman Catholic Diocese of Brooklyn v.
Cuomo, Justice Gorsuch criticized the application of Jacobson to
these challenges and urged courts to apply the tiers of scrutiny

[31]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 32 of 40

approach during the pandemic.

141 S. Ct. at 69-72 (Gorsuch, J.,

concurring).
Arguments advanced by Delaney and Jacobson’s adversaries
fall into two classes.

The first class of arguments is that

Jacobson is distinct, and the tiers of scrutiny developed over
the past century implicitly overruled Jacobson, replacing its
“real or substantial relation” review during times of medical
emergency with the tiered approach.

See Wolf, Civil Action No.

2:20-cv-677, 2020 WL 5510690, at *11-16.

The Supreme Court,

however, has not yet ruled on whether the tiers of scrutiny
overrule Jacobson despite recent opportunity to do so.
Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 67.

See
Since

this crisis began, Jacobson has been cited positively and
negatively by Justices of the Supreme Court in both concurrences
and dissents, see id. at 70 (Gorsuch, J., concurring); Sisolak,
140 S. Ct. at 2608 (Alito, J., dissenting); South Bay United
Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020)
(mem.) (Roberts, C.J., concurring), and until the Supreme Court
overrules Jacobson, this Court is bound by stare decisis to
apply Jacobson harmoniously with the precedent developed under
the tiers of scrutiny, see United States v. Moore-Bush, 963 F.3d
29, 31 (1st Cir. 2020) (“Under the doctrine of stare decisis,
all lower federal courts must follow the commands of the Supreme
Court, and only the Supreme Court may reverse its prior

[32]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 33 of 40

precedent.”), reh’g en banc granted, opinion vacated, 982 F.3d
50 (mem.) (1st Cir. Dec. 9, 2020).
The second class of arguments against applying Jacobson’s
standard pertains to the temporal requites of a “medical
emergency.”

Roman Catholic Diocese of Brooklyn, 141 S. Ct. at

70 (Gorsuch, J., concurring); Wolf, Civil Action No. 2:20-cv677, 2020 WL 5510690, at *8.

Jacobson’s adversaries proffer

that any exigency that once existed has since expired because of
the many months that have passed since the virus first started
overwhelming our hospitals.
5510690, at *8.

See Wolf, No. 2:20-cv-677, 2020 WL

Exigency, however, is a fact-intensive notion.

In the last seven days another 501 residents died, raising the
death toll in Massachusetts to 12,609.
Cases and Deaths by State, supra.

United States COVID-19

The number of weekly reported

cases has remained at grim record highs for the last several
weeks, and Massachusetts is opening field hospitals because its
existing infrastructure is overwhelmed with patients.

Kimberly

Bookman, With Hospitals ‘Under Immense Pressure,’ Baker Begs
People to Stay Home for Holidays, WHDH, Dec. 21, 2020,
https://whdh.com/news/with-hospitals-under-immense-pressurebaker-begs-people-to-stay-home-for-holidays/; Mark Pratt,
Massachusetts Field Hospital Scheduled to Open Sunday,
Associated Press, Dec. 3, 2020,
https://apnews.com/article/public-health-coronavirus-pandemic-

[33]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 34 of 40

486e851a6881b1da8564d13326cbada0.

There certainly will be a day

in the hopefully near future when this crisis’s exigency expires
in Massachusetts, but it is not today.
Whether Jacobson controls in First Amendment challenges is
important where the state action is not “neutral and of general
applicability.”

See Church of Lukumi, 508 U.S. at 531.

Under

the tiers of scrutiny, “[a] law failing to satisfy these
requirements must be justified by a compelling governmental
interest and must be narrowly tailored to advance that
interest.”

Id. at 531-32.

The Supreme Court has ruled that

stopping the spread of society-threatening disease is
“unquestionably” a compelling interest.
of Brooklyn, 141 S. Ct. at 67.

Roman Catholic Diocese

The relationship between the

tiers of scrutiny approach and Jacobson is that the tiers
require the measures taken to be “narrowly tailored,” while
Jacobson only requires them to have a “real or substantial
relation,” a much lower standard.

Compare Church of Lukumi, 508

U.S. at 531-36, with Jacobson, 193 U.S. at 31.
Last month, in Roman Catholic Diocese of Brooklyn, the
Supreme Court shed some light on this debate without resolving
it.

Without overruling Jacobson, the Supreme Court applied the

tiers of scrutiny to enjoin the governor of New York from
enforcing COVID-19 regulations against places of worship because
they were singled out for “especially harsh treatment.”

[34]

Roman

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 35 of 40

Catholic Diocese of Brooklyn, 141 S. Ct. at 66.

There, places

of worship were subject to a ten-person limit in zones where
essential businesses had no limit, and a twenty-five-person
limit in zones where non-essential businesses could “decide for
themselves how many persons to admit.”

Id.

Moreover, the

applicants made a strong showing that the governor specifically
targeted the “ultra-Orthodox [Jewish] community.”
(quotations omitted).

Id.

The regulations were neither neutral nor

of general applicability, and the applicants, therefore, had
proved a likelihood of success on the merits.
Church of Lukumi, 508 U.S. at 546).

Id. at 67 (citing

The Supreme Court held that

“[s]temming the spread of COVID-19 is unquestionably a
compelling interest,” and regulations made in furtherance of
this interest must be narrowly tailored. 9

9

Id. at 67.

Although Delaney’s challenges here lack standing, the
Supreme Court’s language suggests that had Delaney demonstrated
standing to challenge Governor Baker’s occupancy requirements,
these regulations would nevertheless be upheld under the
stricter tiers of scrutiny analysis. See Roman Catholic Diocese
of Brooklyn, 141 S. Ct. at 67. The Supreme Court explicitly
discussed percentage-based occupancy limits as a less
restrictive and more narrowly tailored approach, stating,
“[T]here are many other less restrictive rules that could be
adopted to minimize the risk to those attending religious
services. Among other things, the maximum attendance at a
religious service could be tied to the size of the church or
synagogue.” Id. These are precisely the types of limits that
Governor Baker has instituted and amended previous orders to
enforce, and where non-percentage limits exist, Governor Baker
has exempted places of worship and religious ceremonies. See
COVID-19 Order Nos. 13, 35, 37, 38, 46, 52, 54, 57, 59.
[35]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 36 of 40

2.

Traditional Tiers of Scrutiny Free Exercise
Analysis

Unlike the state action before the Supreme Court in Roman
Catholic Diocese of Brooklyn, Governor Baker’s mask mandate in
public places is “neutral and of general applicability.”

See

Church of Lukumi, 508 U.S. at 531.
State action is not neutral and of general applicability
when
the object of [the state action] is to infringe upon
or restrict practices because of their religious
motivation . . . . To determine the object of [the]
law, [this Court] must begin with its text, for the
minimum requirement of neutrality is that a law not
discriminate on its face. A law lacks facial
neutrality if it refers to a religious practice
without a secular meaning discernible from the
language or context.
Id. at 533.

Governor Baker’s mask mandate in all public places

is facially neutral.

See Def.’s Notice Suppl. Authority (Nov.

10, 2020), Ex. B, COVID-19 Order No. 55 § 1 (“[A]ll persons in
Massachusetts over the age of five years old are required to
wear a mask or cloth face covering over their mouth and nose
when in a public location, whether indoors [or] outdoors.”).
This Court must also consider “‘subtle departures from
neutrality.’” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights
Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting Church of Lukumi,
508 U.S. at 534).

In determining whether a state action’s

object is neutral, courts consider “the effect of [the] law in

[36]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 37 of 40

its real operation” and the extent to which it is underinclusive
of its goal.

Church of Lukumi, 508 U.S. at 535, 543.

A law

fails this test where the government “in pursuit of legitimate
interests . . . in a selective manner impose[s] burdens only on
conduct motivated by religious belief . . . .”

Id. at 543.

Here, mandating all residents to wear a mask burdens the conduct
of all residents, not exclusively conduct motivated by religious
belief.

See id.; Def.’s Notice Suppl. Authority (Nov. 10,

2020), Ex. B, COVID-19 Order No. 55 § 1.

The orders are not

underinclusive, because they apply to all persons in
Massachusetts.

See Church of Lukumi, 508 U.S. at 543.

The

orders do not subtly target religious conduct for distinctive
treatment, and there is no evidence that these orders are the
product of animus.

See id. at 534; see generally Joint Finding.

Therefore, as the orders are of general applicability, they need
only be rationally related to the interest in stemming the
spread of COVID-19.

See Church of Lukumi, 508 U.S. at 531

(citing Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U.S. 872 (1990)).
standard.

These orders satisfy this

Governor Baker’s orders for all residents to wear

masks are rationally related to the interest in stemming the
spread of COVID-19 because, as the parties stipulated in the
joint finding, “[i]t has been proven that the wearing of masks
can slow the transmission of the spread of the coronavirus.”

[37]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 38 of 40

Joint Finding ¶ 22.

Delaney’s challenge, therefore, fails the

First Amendment test developed under the tiers of scrutiny
approach.
3.

Jacobson Analysis

Delaney’s challenge suffers the same fate under the more
deferential Jacobson standard.

See Calvary Chapel of Bangor v.

Mills, 459 F. Supp. 3d 273, 284 (D. Me. 2020).

“Although a

government cannot use a health crisis as a pretext for trampling
constitutional rights, 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.’”
Id. (quoting Jacobson, 197 U.S. at 27).

As discussed above,

Massachusetts is suffering a public health crisis, the exigency
of which has not yet diminished.

See supra Part III.B.1.

“During that temporary time and in those narrow contexts,
Jacobson instructs that courts should only overturn state action
when it lacks a ‘real or substantial relation to the protection
of the public health’ or represents ‘a plain, palpable invasion
of rights secured by the fundamental law.’”

Calvary Chapel of

Bangor, 459 F. Supp. 3d at 284 (quoting Jacobson, 197 U.S. at
31).

Given the nature of the virus and the parties’ stipulation

“that the wearing of masks can slow the transmission of the
spread of the coronavirus,” Joint Finding ¶ 22, Governor Baker’s
orders requiring residents to wear masks have a “real [and]

[38]

Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 39 of 40

substantial relation to the protection of the public
health . . . .”

See Jacobson, 197 U.S. at 31.

Under Jacobson, the state action must not be a “plain,
palpable invasion of rights secured by the fundamental law,” yet
the Supreme Court there gave but cursory instructions concerning
how to go about this analysis.

See id. (“Whatever may be

thought of the expediency of this statute, it cannot be affirmed
to be, beyond question, in palpable conflict with the
Constitution.”).

Other courts have more recently informed their

analysis whether the state action is a plain and palpable
invasion with precedent developed under the tiers of scrutiny
approach.

See Bimber’s Delwood, Inc. v. James, 20-CV-1043S,

2020 WL 6158612, at *11-20 (W.D.N.Y. Oct. 21, 2020) (applying
the traditional tests for constitutional violations to determine
whether the state action qualified as a plain and palpable
invasion under Jacobson); Robinson v. Marshall, 454 F. Supp. 3d
1188, 1200-02 (M.D. Ala. 2020) (applying the undue burden test
for abortion regulations developed under the tiers of scrutiny
to determine whether the state action qualified as a plain and
palpable invasion under Jacobson), appeal dismissed sub nom.
Robinson v. Att’y Gen., 2020 WL 3989457 (11th Cir. May 5, 2020)
(per curiam).

Doing so, however, renders Jacobson and its

articulated deference irrelevant.

For Jacobson to be a separate

standard applied during a public health crisis to afford greater

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Case 1:20-cv-11154-WGY Document 31 Filed 01/06/21 Page 40 of 40

deference to public health officials, that which qualifies as a
plain and palpable invasion logically must be in a class at the
upper limits of, if not above and beyond, invasions tolerable
under the traditional tiers of scrutiny approach.

Compare

Church of Lukumi, 508 U.S. at 531-36, with Jacobson, 193 U.S. at
31.

Given the record, this Court finds Delaney’s injury falls

short of such a class, see Joint Finding ¶¶ 23-28, and upholds
the constitutionality of Governor Baker’s orders under
Jacobson’s standard, see 193 U.S. at 31.
IV.

CONCLUSION
For these reasons, the Court finds and rules and, thus

declares, that Governor Baker’s orders did not violate Delaney’s
constitutional rights.

SO ORDERED.

/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE

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