By Lindsay Marchello
Carolina Journal News Service
RALEIGH — Several Republican lawmakers are challenging the constitutionality of Gov. Roy Cooper’s latest executive order and how it treats religious services.
Sens. Kathy Harrington, R-Gaston, and Carl Ford, R-Rowan, sent a news release Tuesday, May 12, saying Cooper’s reopening plan includes contradictions on what religious activities are allowed.
The news release responds to guidance Cooper’s Legislative Affairs Director Lee Lilley sent to Senate Republicans answering questions lawmakers had about how the governor’s May 5 executive order affected outdoor worship services.
On May 8, 18 Senate Republicans sent the governor a letter asking for clarification on what outdoor religious activities were allowed. Unlike Cooper’s previous orders, the May 5 order allows worship services and other First Amendment activities to take place outdoors unless “impossible.”
But what does “impossible” mean? Senate Republicans asked.
The senators posed several questions. Is a worship service impossible in the event of severe weather, or if it lacks access to a suitable outdoor space? Would a church’s inability to move audio or video equipment outside be an “impossible” impediment?
The letter urges Cooper to provide clarification so residents can exercise their First Amendment rights “without fear of potential criminal penalties if they don’t reach the correct interpretation of ‘impossible.’”
The same day the letter was sent, the N.C. Sheriffs Association passed a resolution calling on Cooper to amend the executive order to allow indoor church services.
Lilley sent a letter and guidance Monday explaining what is and isn’t allowed under the executive order.
While there are no limits to how many people can meet outdoors for a worship service or wedding — so long as social distancing is practiced — the executive order prohibits more than 10 people from attending an indoor service. Fifty people may attend a funeral, but social distancing is still recommended.
In situations in which an outdoor service or alternatives such as a virtual or drive-in service aren’t possible, the 10-person indoor limit doesn’t apply. For example, if a religious belief requires services to be held indoors, then more than 10 people can attend. But the guidance doesn’t elaborate.
“Public health authorities have concluded that chances of virus transmission are significantly reduced when gatherings occur outdoors, when participants are wearing face coverings, and when social distancing is practiced,” Lilley wrote.
The response didn’t satisfy some Senate Republicans.
“The Governor has prevented more than 10 people from meeting in a chapel for a worship service, but he simultaneously allows 50 people to meet in that same chapel in the same pews if the worship service involves a funeral,” Harrington and Ford said in the news release.
There are no health or safety distinctions separating the two religious activities, the two senators said.
“It is a content-based restriction on the free exercise of religion, and it is unconstitutional,” Harrington and Ford said.
At his Tuesday, May 12 COVID-19 news briefing, Cooper gave another reason for the guidance. He said people who were indoors and seated were more likely to catch the virus than those who were indoors and not stationary (as in a retail setting) or outdoors.
The matter might be resolved in court.
Rep. Keith Kidwell, R-Beaufort, is leading a news conference at 11 a.m. Thursday in front of the General Assembly to discuss a lawsuit being filed on behalf of hundreds of N.C. churches against the governor. Joining him is Return America, an organization dedicated to promoting Judeo-Christian values and educating governments on those principles.
A news release from Kidwell says the governor could have asked the churches to add services or conduct them in nontraditional spaces using social distancing, including parking lots.
But a mandate to abandon indoor worship by groups larger than 10 people goes too far, it says.
Cooper’s May 5 executive order is an improvement on an earlier order as far as the free exercise of religion and the rights to assemble and petition the government are concerned, said Jon Guze, director of legal studies at the John Locke Foundation.
Even if a law incidentally affects a religious activity, it doesn’t mean the courts will strike it down, Guze said.
“It is only laws that selectively burden religious practice that are subject to strict judicial scrutiny,” Guze said.
The pending lawsuit is the latest example of a growing tension between religious liberty and COVID-19 related restrictions throughout the country.
Churches in Kentucky have already seen victory.
The Tabernacle Baptist Church won a lawsuit against Kentucky Gov. Andrew Beshear over state restrictions banning mass gatherings. The lawsuit argued secular activities were allowed to continue but in-person church services weren’t permitted under the order.
“Tabernacle has a sincerely-held religious belief that online services and drive-in services do not meet the Lord’s requirement that the church meet together in person for corporate worship,” the lawsuit read.
Big retail stores like Walmart and Home Depot remain open with social-distancing requirements, but religious services aren’t awarded the same opportunity, the lawsuit says.
A federal judge granted the church a temporary restraining order against the ban on mass gatherings, while another judge granted Maryville Baptist Church in Louisville an injunction blocking the executive order.
“Both rulings affirm that the law prohibits the government from treating houses of worship differently than secular activities during this pandemic,” said Kentucky Attorney General Daniel Cameron in a statement.
Kidwell shared a similar sentiment in his news release. ABC stores, abortion centers, vape shops, and NASCAR have all been allowed to operate at a larger capacity, Kidwell said in his news release, but the governor has restricted the right to attend in-person church services.