Antietam Battlefield v. Hogan, 461 F.Supp.3d 214

Background

Plaintiffs (religious leaders, businesses deemed non‑essential, and elected delegates/organizers) challenged Maryland Governor Hogan’s COVID‑19 emergency executive orders seeking a TRO/preliminary injunction.
Orders (March–May 2020) imposed stay‑at‑home rules, prohibited gatherings over ten people (later amended to allow some indoor religious services at 50% capacity), closed many non‑essential businesses, and required face coverings in retail/public transit; violations carry misdemeanor penalties.
Plaintiffs alleged violations of the First Amendment (free exercise, speech, assembly), various Maryland constitutional provisions, and the Dormant Commerce Clause, among other claims.
The court applied Jacobson’s public‑health framework for emergency measures and the Winter preliminary‑injunction factors, and treated the TRO motion as one for a preliminary injunction.
The court concluded the orders are informed by public‑health data and advisors, have a real and substantial relation to slowing COVID‑19, and denied the plaintiffs’ motion for preliminary injunctive relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standard of review for emergency public‑health measures	Orders must meet normal First Amendment scrutiny	Jacobson governs—court should defer to public‑health judgments unless measures lack any real/substantial relation to health or are a plain, palpable invasion of rights	Jacobson applies; plaintiffs must show no real/substantial relation or a plain/palpable invasion; they failed to meet that burden
Free Exercise (ban on gatherings >10/limits on services)	Orders target religion by closing worship while allowing some secular activities; strict scrutiny required	Order is neutral and generally applicable; secular analogues are either essential or not comparable; rational basis (or at most intermediate) applies	Order is neutral/generally applicable; rational basis (or permissible tailoring) satisfied; plaintiffs not likely to succeed
Freedom of Assembly / Free Speech and face‑covering rule	Large‑gathering ban and mask mandate unconstitutionally restrict rallies, legislative speech, and expressive conduct	Ban is a content‑neutral time/place/manner restriction narrowly tailored to a significant interest; mask rule is not expressive conduct	Large‑gathering ban analyzed as time/place/manner; intermediate (or, even under strict scrutiny, sufficiently tailored) — plaintiffs fail. Face covering not protected expressive conduct
Dormant Commerce Clause (closure of non‑essential businesses)	Closing non‑essential businesses unduly burdens interstate commerce and is not the least restrictive means	Order is non‑discriminatory, advances legitimate local health interest; incidental interstate burdens evaluated under Pike balancing	No facial discrimination; Pike balancing applies; burden on interstate commerce not clearly excessive given local public‑health benefits; claim fails

Key Cases Cited

Jacobson v. Massachusetts, 197 U.S. 11 (1905) (establishes deference to public‑health measures unless they lack a real/substantial relation to health or are a plain, palpable invasion of constitutional rights)
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) (four‑factor test for preliminary injunctions)
Employment Div. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws do not trigger strict scrutiny for free exercise claims)
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws targeting religiously motivated conduct are subject to strict scrutiny)
Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, and manner restrictions—requirements for intermediate scrutiny)
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) (balancing test for non‑discriminatory state regulation affecting interstate commerce)
South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018) (dormant commerce clause principles; discussion of discriminatory vs. even‑handed state regulation)