NC Values press statement on Governor Cooper’s Executive Order 138:


"It is hard to understand why Governor Cooper continues to discriminate against churches, while he has opened up businesses.  Under his new order, no more than 10 people can go to a church service in the church building, although a retail business next door could allow up to 50% of its fire capacity into the store.  Telling churches they can only worship together outside, while allowing businesses to open their stores to 50% capacity is an undue burden on religious freedom and is unconstitutional. Churches are capable of exercising the same social distancing and safety guidelines as other retail businesses.  Governor Cooper should go back to the drawing board and correct his government overreach that targets churches and the free exercise of religious beliefs." 

          - Tami Fitzgerald, NC Values Coalition Executive Director

 

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I hope you and your families are staying safe and healthy during the COVID-19 pandemic. And, like me, I'm sure you miss worshiping with your family of faith in church. While churches have found innovative ways to worship "virtually", it's just not the same as worshipping in person together. Up to this point, it has been clear that safe-guarding the public health required us to not meet together for church services.  But, now that North Carolina is beginning a tepid reopening, it appears that churches are left outside (literally).  That's why I wanted to let you know about Governor Cooper's latest Executive Order, beginning Phase 1 of the reopening of North Carolina, and how it applies to churches.

Under the order, which goes into effect Friday at 5:00 pm, almost all retail businesses are allowed to reopen using specified social distancing and health measures up to 50% of their capacity for customers under the fire code. Churches, however, must continue to be shut down.  Here's what the order says that affects churches:
  • Under Subsection 6(A) of the order, "mass gatherings" of more than 10 people in one place at the same time are forbidden.
  • However, "mass gatherings" do not include gatherings "for worship."
  • But in Subsection 6(C), "any gatherings of more than ten ( 10) people that are allowed under Subsection 6(A) shall take place outdoors unless impossible."

Very sneaky!  During his press conference about the order, Governor Cooper interpreted this vague language to mean that churches can only meet for worship if it is done outdoors.

That brings me to what is wrong with Governor Cooper's order.  The U.S. Supreme Court has ruled that only if the governmental interest is "compelling" and if no alternative forms of regulation would serve that interest is the government allowed to burden (regulate) religious exercise.  While the State most certainly has a compelling interest in stopping the spread of COVID-19, and none of us wants to play down the health risks at stake here, there are alternative forms of regulation that would serve the State's interest—the social distancing and health precautions imposed on businesses.  The problem with Governor Cooper's order is that it singles out churches for different treatment.  When businesses are permitted to open their doors to 50% of their customers because they can be trusted to implement social distancing and health precautions, why can't churches do the same?

Pastors are left wondering whether Governor Cooper's new order, which explicitly states that "mass gatherings" (which are prohibited) do not include gatherings for worship, really means what it says.  They are also left wondering why meeting indoors is prohibited, while businesses are allowed to sell their products indoors.  Finally, they are left wondering if the order allows them to meet indoors when meeting outdoors is “impossible” and who determines what “impossible” means. You see, the language of the order does not match the Governor's interpretation of it, and it is vague and unenforceable.

Please be advised that this email in no way constitutes legal advice.  However, I wanted to inform you about the inconsistency of the Governor's actions in closing down churches, while opening up retail businesses.  It is religious discrimination, plain and simple.  

Thank you for exercising good judgment in how your actions affect others.  Loving our neighbor should cause us all to be cautious and to seek not to expose other people to sickness.  But, it shouldn't take civil disobedience to help our Governor to see that his executive order constitutes religious discrimination.  If businesses can open in a limited way exercising special health precautions, churches should be allowed to do the same.

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