Today, Wisconsin’s seven-member Supreme Court considered oral arguments in three cases challenging Dane County’s decision halting in-person education. The Court combined the cases into a single action since all three are seeking the same end — to permanently overturn the school closure section of Public Health Madison Dane County’s Emergency Order #9.
They already got part of that wish in September, after the state’s high court issued a temporary injunction blocking that part of the order while it considered the case.
The plaintiffs in all three of the now-combined cases constitute a coalition of private, religious schools in Dane County as well as parents of students attending those institutions.
At the core of their argument are two major tentpoles. First, they argue that Public Health Madison Dane County does not have the authority to issue orders to shut down all schools in the county.
The also argue that, in doing so, the county infringed upon the school’s constitutional freedom of religion.
Speaking on behalf of the plaintiffs, attorney Rick Esenberg of the Wisconsin Institute for Law and Liberty said they’re asking the court to determine who even has the authority to shut down schools. The pre-existing state law, according to Esenberg, is vague as it currently stands.
“In statutory terms, it is the onus that should be evaluated by this court to evaluate who should do what,” Esenberg said. “No one claims that either the DHS or local health officials are provided with direct statutory authority to do anything with respect to the control of communicable diseases.”
Esenberg went on to argue that that ambiguity doesn’t confer authority onto PHMDC and its director — Janel Heinrich.
“We have specific grants of statutory authority to both DHS and local public health officials suggesting that this broad description of authority is limited by those specific grants — that is, the specific controls the general. Here, DHS is told by the legislature that it may forbid public gatherings and it may close schools. Local health officials are only told that they may forbid public health gatherings.”
In layman’s terms — it’s up to the Wisconsin state government, specifically the Department of Health Services, to determine if, when and how to close schools.
Justice Rebecca Dallett, a member of the court’s liberal minority, pushed back on Esenberg’s characterization of the roles of state versus local health agencies.
“If you look at this language, if you look at what it’s talking about here — it’s talking about buildings and physical spaces,” she said. “What you’re reading into this is somehow beyond that. Have you ever observed online school, people are interacting — what they’re not doing is being physically together in a public building, which is exactly what the duties of local health officers are.”
The other side of the plaintiffs’ argument is more cut and dry — that PHMDC infringed on religious freedom when it closed schools. Every school represented in the case is a religious, private organization.
Attorney Joseph Voiland, also representing one of the plaintiffs — Sara Lindsey James of Fitchburg — argued that not being able to gather in-person at school constituted a violation of students’ right to worship.
“Virtual learning is not the practice of her faith or her children’s faith, it needs to be in-person. She believes that her children need to be in-person with other children as part of the body of Christ,” Voiland said.
The justices pointed out that Emergency Order Nine makes a specific exception for religious gatherings. Under the provision, churches are excused from capacity requirements for in-person worship.
That protection does not extend to all religious activities, such as the schools — just specific religious services, including Mass.
Justice Jill Karofsky also took issue with the groundwork of the petitioners’ argument. They say that the closure of school has disadvantaged students, an idea that she rankled at.
“Look, this brief repeats over and over again that these kids are put at a disadvantage. That this health official, and what she has done to these kids, is unforgivable. You repeat it over and over again. Where is the proof? Where is the evidence? Do you have anything to back it up,” Karofsky asked.
Attorney Remzy Bitar, representing Heinrich and Dane County Executive Joe Parisi, said that the petitioners’ request to overturn a countywide order for religious purposes would essentially foist their religious doctrine on others.
“There is a place for religion in the public square and it should be cherished and protected. But the rights of one person to exercise their religion in the public square, just like their rights to swing their arms, stop at another person’s nose,” he said.
Since issuing Emergency Order Number nine in late-August, and amending it on September 2nd, Public Health Madison Dane County has released Emergency Order Ten — which supersedes both prior orders.
The November 20th order, which bans all indoor gatherings and limits outdoor gatherings to ten people, still allows for in-person religious services.
(Photo: Daderot / WikiMedia Commons)