A Wisconsin judge has ruled the state Department of Corrections violated both Wisconsin law and the state constitution when the agency working under its COVID-19 visitor policy, barred clergy from ministering in person to the spiritual needs of inmates.

Jefferson County Circuit Court Judge William Hue handed down his 65-page final decision and a separate order on July 14 ruling the Wisconsin Department of Corrections (WIDOC) violated the rights of the Archdiocese of Milwaukee and its clergy. The court also issued a permanent injunction forbidding WIDOC from re-instituting the policy in the future.

Judge Hue wrote, "Religious interests (guaranteed by the Wisconsin Constitution) and the privilege to clergy (granted by the Wisconsin Legislature through statute) were not given consideration by WIDOC in denying them access to state correctional institutions for over 450 days. WIDOC's acts in that regard were not tailored narrowly to meet competing state interests and the Archdiocese's rights. They were not tailored at all."

In his order, Hue wrote, "Defendants are hereby commanded to comply forthwith with the provisions of Wis. Stat. § 301.33 and, subject to reasonable exercise of the privilege, the clergy members of the Plaintiff Archdiocese of Milwaukee shall have the opportunity, at least once a week, to conduct in person religious services within the state correctional institutions."

The order also noted, "This mandate will remain in effect until this litigation terminates or further order of this Court."

The Wisconsin Institute for Law & Liberty (WILL), a non-profit public interest law firm, sued the WIDOC in May 2021 on behalf of the Archdiocese that was seeking to cancel the visitor ban. That policy, according to the law firm, was in effect for over a year and contained no exceptions for vaccinated clergy or instances where religious services could be conducted in person at state prisons.

At the same time, WIDOC granted institutional access to others, including lawyers, public officials, and members of the press.

WILL Deputy Counsel Anthony LoCoco called the judge's ruling "a good day for religious liberty in Wisconsin."

"Department of Corrections bureaucrats may not simply disregard the statutory and constitutional rights of Wisconsin's clergy or relegate those rights to second-class status," LoCoco said in a statement. "This decision will help ensure that officials across state government put the religious rights of Wisconsinites first in the future rather than last."

Inmates Denied Clergy Visits for More Than One Year, but Corrections Dept. Granted In-Person Access to Others

On March 13, 2020, WIDOC announced that "out of an abundance of caution," in order to "minimize the risk of bringing COVID-19 (Coronavirus) into its facilities," "{a}ll visits, including volunteer visits, are temporarily suspended at all Department of Corrections Institutions."

For 450 days, Catholic clergy was forbidden from fulfilling their religious duty to meet in person with inmates at Wisconsin's correctional institutions. They could not administer sacraments or even meet in person to provide counseling. At the same time, however, WIDOC granted in-person access to a host of other individuals ranging from lawyers to law enforcement to teachers to dog trainers.

The Archdiocese's lawsuit alleged the WIDOC policy violated both state statute and the state constitutional guarantee to the free exercise of religion. Wisconsin state law, Wis. Stat. § 301.33 ("Freedom of worship; religious ministration."), provides in part: "Subject to reasonable exercise of the privilege, members of the clergy of all religious faiths shall have an opportunity, at least once each week, to conduct religious services within the state correctional institutions. Attendance at the services is voluntary."

The state constitution, in turn, prohibits government officials from burdening sincere religious beliefs unless it is the least restrictive way to serve a compelling governmental interest. According to WILL, the WIDOC violated both these commands by issuing a blanket ban while affording access under health and safety protocols to other types of individuals.

The law firm issued a letter on April 1, 2021, demanding WIDOC reassess its policy, then sued WIDOC in Jefferson County Circuit Court in May 2021 after the state agency made no adjustments to its policy.

Judge Hue ordered the WIDOC to provide clergy of the Archdiocese of Milwaukee with access to state correctional institutions for the purpose of conducting religious services for inmates in a temporary writ of mandamus issued on June 18, 2021.

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