On Saturday, a federal judge in North Carolina issued a temporary restraining order against Governor Roy Cooper’s executive order #138, which treats churches less favorably than retail establishments with regard to re-opening rules.

While Cooper’s latest order allows retail establishments to re-open if they limit occupancy to 50% and observe social distancing and other health rules, no similar provisions are provided for in-church worship services. The order allows in-church worship services with no more than 10 people—otherwise services with more than 10 attendees must meet outdoors unless the church can prove to law enforcement that it is “impossible” to hold a worship service outside.

Two churches brought a First Amendment lawsuit in federal court, and Judge James C. Dever III granted the churches emergency relief from the effect of the Governor’s executive order.

The judge was not happy with the governor’s treatment of churches. “These glaring inconsistencies between the treatment of religious entities and individuals and non-religious entities and individuals take EO 138 outside the ‘safe harbor for generally applicable laws,’” Dever wrote in his opinion.

“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,” he continued. “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 judge pointed to other inconsistencies in the executive order. For example, indoor funeral services are allowed so long as no more than 50 people were present.

“At oral argument, the Governor’s counsel conceded that there is no public health rationale for allowing 50 people to gather inside at a funeral, but to limit an indoor religious worship service to no more than 10 people,” the judge stated. “Some funerals are religious. Some funerals are not religious. The Governor’s counsel could not explain why the Governor trusts those who run funerals to have 50 people inside to attend the funeral, but only trusts religious entities and individuals to have 10 people inside to worship.”

Governor Cooper expressed disappointment with the court order but won’t fight it. “We don’t want indoor meetings to become hotspots for the virus and our health experts continue to warn that large groups sitting together inside for long periods of time are much more likely to cause the spread of COVID-19,” the governor stated in a press release. “While our office disagrees with the decision, we will not appeal, but instead urge houses of worship and their leaders to voluntarily follow public health guidance to keep their members safe.”

The constitutional rule is simple: Stop treating churches differently from other gatherings of people, or you will be guilty of violating the First Amendment. The re-opening of America is meant for everyone.



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