For the first time in 15 months, priests in the Archdiocese of Milwaukee will be allowed into Wisconsin’s prisons to offer Holy Mass and administer sacraments to inmates under an order signed Monday by a circuit court judge.
Clergy and other visitors have been barred from Wisconsin correctional facilities since March 2020 under a state policy aimed at preventing the spread of COVID-19. The Archdiocese of Milwaukee sued the Wisconsin Department of Corrections and its secretary, Kevin A. Carr, on May 7, 2021 in Jefferson County Circuit Court. Archdiocese attorneys argued the visitor policy infringes on constitutionally protected religious liberty and runs afoul of state statutes that guarantee clergy access to prisons.
Jefferson County Circuit Court Judge William F. Hue ruled the Archdiocese of Milwaukee must be given access to state prisons once a week, effective immediately. He signed a provisional writ of mandamus compelling the Department of Corrections to grant the clergy access. The order does not apply to the other four Catholic dioceses in Wisconsin. It will remain in effect as the case proceeds in circuit court.
“The Department of Corrections cannot ignore the Legislature’s command that clergy have a privileged right of access to its facilities for purposes of ministering to the needs of Wisconsin’s inmates,” said Anthony F. LoCoco, deputy counsel for the Wisconsin Institute for Law & Liberty, which represents the archdiocese. “We are grateful for the court’s action today, which will ensure that meaningful religious services can be timely offered.”
A spokeswoman for Archbishop Jerome E. Listecki was pleased with the ruling, but cautioned it is only a first step. “While we are relieved that our clergy and chaplains will once again be able to minister to prison inmates once per week, we also recognize that this is only a temporary ruling,” said Sandra Peterson, communication director for the Archdiocese of Milwaukee. “The archdiocese hopes the court will completely lift the Department of Corrections restrictions in its final ruling and restore the legal and freedom of religion rights of our clergy to tend to the spiritual needs of Wisconsin’s inmates.”
Department of Corrections Secretary Kevin Carr said plans were in the works for clergy access before the archdiocese petitioned for the court order. “The Department of Corrections received the order from Judge Hue today and will comply with the order,” Carr said in a statement. “DOC suspended in-person visitation due to the pandemic on March 13, 2020. The archdiocese and WILL waited nearly 15 months until May 7 to challenge that suspension. It was not until after DOC announced its intention to reopen to in-person visitors starting July 6 that the archdiocese filed this motion. We were already in the transition phase of preparing to resume in-person visitation, including volunteer visits. This order simply permits religious visits about two weeks earlier than planned.”
Judge Hue ruled that Wisconsin statutes are clear on clergy access to state prisons, denial of which “constitutes a substantial injury.” He rejected the argument that the archdiocese’s suit wasn’t filed in a timely manner.
“The statute clearly and plainly grants privilege to the clergy at least one time per week to enter correctional facilities for the exclusive purpose to conduct religious services,” Hue said. “The Court declines any invitation to engage in judicial activism usurping legislative authority. The privilege holder has demonstrated substantial injury that is a privilege recognized by the Legislature and the inability to perform it constitutes a substantial injury.”
Priests and deacons visit inmates across the 10-county Archdiocese of Milwaukee, including at Waupun, home to two maximum-security prisons with nearly 2,500 inmates. According to state records, there are approximately 9,500 adult inmates housed in 15 correctional facilities within the Archdiocese of Milwaukee. About 19,500 inmates are held in correctional facilities statewide. The Catholic population in the 15 institutions ranges from 6 percent to 17 percent, according to Department of Corrections reports.
The archdiocese’s lawsuit raps the Department of Corrections for allowing teachers, counselors and other staff access to the prisons, while denying entrance to priests, who cannot give Holy Communion, hear confessions or administer anointing of the sick via videoconference.
“DOC claims the authority to indefinitely deny priests access to inmates in DOC’s care for the purpose of providing religious services,” the suit reads. “Besides shocking the conscience, the DOC’s draconian policy violates state statutory and constitutional law.”
“This means that for over one year, archdiocesan clergy have been unable to meet in person with inmates to provide spiritual direction, to conduct Masses, or to administer sacraments that cannot be administered virtually, such as the Eucharist, Penance, and the Anointing of the Sick.”
Under Wisconsin Statute §301.33, members of the clergy of all religious faiths must be given opportunity at least once a week to conduct religious services within state correctional facilities. Inmates also have the right to receive “religious ministration and sacraments according to the inmate’s faith.”
The department’s COVID-19 policy is “utterly incompatible with this statute,” the lawsuit reads. “The DOC has no authority to override the plain terms of Wis. Stat. § 301.33 based on its own estimation of whether admitting clergy to state correctional institutions is sufficiently important. The Legislature has already made that decision. It enacted Wis. Stat. § 301.33(1) precisely to ensure that DOC never bars religious ministers from entrance as it is doing now.”
The state is also interfering with the archdiocese’s ability to freely practice religion as guaranteed under the Wisconsin Constitution, the suit contends.
“The DOC cannot make the considerable showing necessary to justify such a restriction, because regardless of whether combatting COVID-19 qualifies as a compelling interest, less-restrictive alternatives are available,” the suit states. “The agency could apply to religious ministers the same or similar health and safety protocols it requires of employees and professional and legal visitors. It could, for example, require temperature checks, COVID tests, masking, hygiene procedures, social distancing, outside visits, or even proof of vaccination.”
“But the DOC has attempted none of these measures and has not proven that any of these options (widely used in sensitive settings like nursing homes and hospitals) are inadequate,” the suit says. “Instead, it has simply adopted a blanket ban, while permitting many other individuals to access its facilities. The Wisconsin Constitution forbids this approach.”
The Department of Corrections announced June 7 it would again allow family members and the public to visit inmates in state facilities, beginning July 6. It issued a variety of rules for inmate visits, such as a ban on holding hands or kissing. Brief hugs will be allowed. Inmates will be required to wear a mask during visits. They cannot share food or drink with visitors. The DOC web site said it is “beginning the transition to normal operations,” including work release, volunteer visits and religious visits.
The Archdiocese of Milwaukee has 193 parishes with 533,963 registered Catholics, served by 291diocesan priests and 176 permanent deacons. The archdiocese jail/prison ministry serves inmates incarcerated in state prisons and county jails in Dodge, Fond du Lac, Kenosha, Milwaukee, Ozaukee, Racine, Sheboygan, Walworth, Washington and Waukesha counties.
The circuit-court order is the latest chapter in an ongoing battle between the Catholic Church and affiliated organizations, and Wisconsin state and local governments, over restrictions put in place due to COVID-19.
On June 11, the Wisconsin Supreme Court struck down a school-closure order issued in August 2020 by Public Health Madison & Dane County, ruling the order violated constitutionally guaranteed freedom of religion. That case was brought by St. Ambrose Academy and a coalition of Catholic and other religious schools. In late March, the high court struck down Gov. Tony Evers’ repeated use of emergency declarations to impose statewide restrictions such as wearing of masks in public. Five of Evers’ six emergency declarations were illegal, the court said. Two weeks later, in a case brought by Pro-Life Wisconsin, the court ruled Evers over-stepped his authority by regulating the size of gatherings at businesses, restaurants and other venues in order to control COVID-19.
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