Major legal win for churches and religious liberty in NC


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.



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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