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Federal Judge Temporarily Restrains Cooper Executive Order Restricting Church Services in NC

Churches in North Carolina again are able to legally hold indoor worship services with more than 10 people in attendance, now that a federal judge has issued a temporary restraining order against Governor Roy Cooper’s Executive Order 138 regarding the COVID-19 pandemic.

The legal action was filed by attorneys David Gibbs, Jr. of the Christian Law Association and Deborah Dewart on behalf of Winston-Salem Pastor Ron Baity, the nonprofit organization Return America, Berean Baptist Church in Winston-Salem, and People’s Baptist Church in Greenville, NC.

The lawsuit argues the Governor’s Executive Order (EO) violates the First Amendment of the U.S. Constitution, because it applies more restrictive standards to religious activities and services than it does to non-religious gatherings. The EO limits indoor worship services to a maximum of 10 people, but at the same time allows “normal operations at airports, bus and train stations, medical facilities, libraries, shopping malls and centers,” as well as any “COVID-19 Essential Business or Operation” as long as they follow the state’s “Recommendations to Promote Social Distancing and Reduce Transmissions” as much as possible.”

In fact, the Governor’s EO expressly exempts these non-religious indoor operations from the 10-person limit, but calls for potential criminal penalties (Class 2 misdemeanor) if a group gathering inside for religious worship exceeds 10 people. An exception exists in the EO for situations where it would be “impossible” to worship outside, but the ruling pointed out that it was unclear how this could be determined, and that other gatherings were not held to this same standard.

In his May 16 order, U.S. District Court Judge James C. Dever, III illustrates the inconsistency of the Governor’s Executive Order: “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.” He continues by pointing out, “Eleven men and women can stand side by side working indoors Monday through Friday at a hospital, at a plant, or at a package distribution center and be trusted to follow social distancing and hygiene guidance, but those same eleven men and women cannot be trusted to do the same when they worship inside together on Saturday or Sunday.”

In seeking to strike an appropriate balance between public health and safety and constitutionally protected rights of religious freedom and assembly, Judge Dever further states, “The public has a compelling interest in preventing the spread of COVID-19. Lives are at risk, particularly among the elderly and those with pre-existing conditions such as obesity, diabetes, hypertension, and lung disease. But the instinct for self-survival is strong. The court trusts worshipers and their leaders to look after one another and society while exercising their free exercise rights just as they and their fellow citizens (whether religious or not) do when engaged in non-religious activities. Plaintiffs have pledged to practice social distancing and other public health guidelines, just like others under EO 138. Accordingly, the equities tip in favor of granting a temporary restraining order.”

A further hearing in the case is scheduled for Friday, May 29.


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