By Joseph Edelen

DOVER — Delaware Supreme Court has affirmed the dismissal of a lawsuit against Gov. John Carney that alleged unconstitutional COVID-19 restrictions against religious gatherings during the pandemic, though the ruling said there was a “probable constitutional violation” based on recent case law.

The lawsuit, filed by the Rev. Alan Hines of Townsend Free Will Baptist Church and the Rev. David Landow of Wilmington’s Emmanuel Orthodox Presbyterian Church, was dismissed by the Court of Chancery in 2022 and Superior Court in August 2023.

“Although singling out Houses of Worship for heightened restrictions was a probable constitutional violation under (former New York Gov. Andrew) Cuomo, we affirm the Superior Court’s holding that at the time the challenged restrictions were adopted there was no ‘clearly established law’ addressing these particularized facts,” the Aug. 1 ruling by Delaware Supreme Court Justice Abigail M. LeGrow said.

During the early days of the pandemic, Gov. Carney prohibited in-person Sunday religious services, communion, baptism and for elder Delawareans to attend church.

Since COVID-19 era restrictions have been lifted, the U.S. Supreme Court issued a decision in Roman Catholic Diocese of Brooklyn v. Cuomo, in which they ruled that a church or synagogue would likely prevail in proving that occupancy limitations at public places of worship violated the Free Exercise Clause of the First Amendment.

In its ruling, Delaware Supreme Court agreed that freedom of religion is an “essential tenet of our democracy” and that restrictions on religious worship must be viewed with a “great deal of skepticism.”

At the same time, Justice LeGrow wrote that “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.”

At the onset of the COVID-19 pandemic in March 2020, Gov. Carney enacted his gubernatorial authority under the emergency management act to enact restrictions on residents and businesses to slow the spread of the coronavirus.

The order provided exceptions to residents for specific activities, such as going to the grocery store or doctor, but did not extend to places of worship.

However, Gov. Carney lifted the emergency stay-at-home order on July 13, 2021, thus terminating COVID-era state of emergency restrictions. The two pastors filed their lawsuit on Dec. 1, 2021; 18 months after the challenged restrictions were enacted.

“By the time the complaints were filed, the challenged conduct had ceased. Because the Governor had already rescinded the challenged restrictions at the time the Court of Chancery issued its decision, the permanent injunctive relief sought was forward looking,” the ruling reads.

“’A permanent injunction against future conduct is not warranted simply because a court has found past conduct illegal.’”
The state’s public health emergency order that stemmed from COVID-19 was ended on May 11, 2023, the same day the federal public health emergency order ended.

When the case was ruled on in the Court of Chancery, they dismissed it due to the purview of its jurisdiction. The two pastors then referred the case to state Superior Court and requested relief for damages, though the court also dismissed the suit because their claims were not “justiciable,” while also ruling that Gov. Carney was immune from damage claims.

“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,” the ruling states in reference to U.S. Supreme Court’s Cuomo decision.

Due to these precedents, the state Supreme Court affirmed the decisions of Court of Chancery and Delaware Superior Court.