Dear Friend,
On Saturday, churches across our State received a
big victory for religious freedom!
Federal Judge James Dever issued a temporary
restraining order (TRO) making Governor Cooper's restrictions on
churches unenforceable statewide.
The NC Values Coalition has
been saying for the last two weeks in emails and press releases that
Governor Cooper's Executive Order 138, issued on May 5th, is
unconstitutional as it targets churches for unequal treatment. The
Order prohibits church worship services indoors for more than 10
people, unless it is "impossible" for those services to take place
outside. In guidance issued by the Governor's office about how the
Executive Order was to be interpreted, it said that religious entities
may not assemble with more than 10 people indoors unless it is
"impossible." The example given for "impossibility" is when
"particular religious beliefs dictate that some or all of a religious
service must be held indoors and that more than ten persons must be in
attendance."
Well, thank God we have the First
Amendment and judges who understand its protections for exercise of
religious beliefs and assemblies, as well as its prohibition on the
establishment of religion by the government!
Judge
Dever issued a very lengthy and stern rebuke to the Governor, stating,
"There is no pandemic exception to the Constitution of the United
States or the Free Exercise Clause of the First Amendment."
Hooray for sanity from a federal judge, when our Governor has shown
neither sanity nor an understanding of Constitutional law when it
comes to religious freedom!
In his opinion, the Judge noted
that in an earlier Executive Order (#121), "The Governor included
'religious entities' as one of only two categories of the 30 Essential
Businesses and Operations that were subject to "restrictions on the
number of people who could gather." He "capped funeral services at 50
people, and religious gatherings at 10 people." Governor Cooper tried
to have it both ways. He included "religious entities" as "essential
services," yet he limited their gatherings to no more than 10 people,
unlike other "essential services." That is double-speak. You can't
fool the people or Judge Dever, Governor Cooper.
Judge Dever pointed out the inconsistencies in Executive
Order 138, showing how worship services were excluded from
the definition for "mass gatherings," but were then limited to being
held outdoors. He also pointed out that there was no good reason why
indoor funerals were limited to 50 people, and yet indoor gatherings
for worship were limited to 10 people. And when asked by the Judge
who decides whether it is "impossible" to worship outside, "the
Governor's counsel conceded that it would be a sheriff or other local
law enforcement officer who would decide...." Judge Dever then
stated, "That's a remarkable answer in light of the Free Exercise
Clause." And he noted that, "If a person or entity is buying or
selling goods or services, the Governor understands EO 138 to mean it
is 'impossible' to move such goods and services outside." In other
words, mass gatherings of more than 10 people indoors are only allowed
by Governor Cooper if they pertain to buying or selling good or
services, not worship services.
The Judge found that the
burden on religious freedom found in Governor Cooper's Executive Order
was not narrowly tailored to advance his interest in protecting the
public health, because the EO treated businesses and public
transportation differently than churches.
He
concluded the restrictions on churches are unconstitutional.
Judge Dever's opinion accurately expresses the problems with
EO 138 and its clear violations of the First Amendment. The assembly
for religious worship provisions in EO 138 starkly illustrate the
extent to which religious entities and individuals are not subject to
a neutral or generally applicable law. The record, at this admittedly
early stage of the case, reveals that the Governor appears to trust
citizens to perform non-religious activities indoors (such as shopping
or working or selling merchandise) but does not trust them to do the
same when they worship indoors together.
"The principle that government, in pursuit of legitimate
interests, cannot in a selective manner impose burdens only on conduct
motivated by religious belief is essential to the protection of the
rights guaranteed by the Free Exercise Clause."
Notably, 15 other Governors trusted the people of their states
and exempted religious gatherings from any attendance limitations
during this pandemic. The Governor has failed to cite any
peer-reviewed study showing that religious interactions in those 15
states have accelerated the spread of COVID-19 in any manner
distinguishable from non-religious interactions. Likewise, common
sense suggests that religious leaders and worshipers (whether inside
or outside North Carolina) have every incentive to behave safely and
responsibly whether working indoors, shopping indoors, or worshiping
indoors. The Governor cannot treat religious worship as a world apart
from non-religious activities with no good, or more importantly,
constitutional, explanation....
Thus, the question becomes
whether the assembly for religious worship provisions in EO 138 amount
to the "least restrictive means" of serving that compelling interest.
They do not. Plaintiffs have pledged to adhere to "all recommended
COVID-19 social distancing and personal hygiene safety guidelines" in
exercising their free exercise rights. They simply want the Governor
to afford them the same treatment as they and their fellow
non-religious citizens receive when they work at a plant, clean an
office, ride a bus, shop at a store, or mourn someone they love at a
funeral.
We thank Dr. Ron Baity and Pastor Tim Butler
for filing this lawsuit on behalf of their churches. Without pastors
willing to stand up for our guaranteed right to exercise our religious
beliefs without government intrusion, we will lose
it!
Under this ruling, it is clear, that the federal
courts will no longer tolerate the Governor's targeting of churches
for unequal treatment. But, it's also clear that the Stay-at-home
orders issued by counties like Guilford and Mecklenburg, under which
police justified arresting Christians who stood outside abortion
clinics and prayed for women seeking to kill their own babies, are
equally unconstitutional. Government, whether state or local, cannot
issue orders allowing abortion clinics to operate, while shutting down
Christian witnesses on the sidewalks outside in the name of
"protecting the public health."
It is clear that
Governor Roy Cooper does not respect our right to religious
freedom under the First Amendment of the Constitution. Even
though he has backed down by stating that he will not appeal the
Judge's ruling, it is a very sad state of affairs that pastors had to
go to court to force the Governor to treat them fairly and
constitutionally. There is something so deceptive in a Governor who
promulgates a dual standard of justice—one for commerce and a much
lesser one for religious exercise.
It's time for a new
Governor. One who does not violate our religious freedom with
oppressive dictator-like Executive Orders.
Sincerely,
Tami Fitzgerald NC Values Coalition
PS: On Wednesday at 7:30pm, we'll be interviewing Congressman Dan
Bishop as part of our weekly NC Values Voice livestream program. We'd
love for you to join us!
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