Judge rules against Roy Cooper in lawsuit limiting indoor worship services

by Rick Henderson

Raleigh, NC – The COVID-19 outbreak can’t be an excuse to outlaw most indoor worship services in North Carolina, a federal judge ruled Saturday, May 16.

photo by Michael Morse

U.S. District Judge James Dever issued a temporary restraining order preventing law enforcement from enforcing parts of executive orders Gov. Roy Cooper began issuing in March to limit the spread of COVID-19. The orders barred most indoor religious services unless inside worship was deemed “impossible” or against the tenets of a particular faith. Dever’s order, citing the religious freedoms guaranteed by the U.S. Constitution, took effect immediately.

“There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment,” Dever wrote.

At issue was the distinction the stay-at-home orders — especially one issued May 5 — made between religious and other activities. While the orders allowed retail and other commercial behavior so long as health and safety guidelines were followed, the May 5 order said indoor worship services involving more than 10 people remained illegal. Indoor funerals were OK if they involved fewer than 50 people.

The governor’s legislative liaison, Lee Lilley, cited a May 7 “guidance letter” implementing the May 5 order which outlined why indoor worship services got special treatment.

Several local sheriffs, mainly outside the state’s urban centers, have said they wouldn’t enforce the order.

Dever noted the plaintiffs, including several churches and the nonprofit religious group Return America, argued “under pain of criminal prosecution, if the participant does not hold the State’s established religious belief or is not prepared to prove ‘impossibility,’ the participant must gather for worship outside when worshiping with more than 10 people.”

The plaintiffs demonstrated Thursday in Raleigh as they filed the lawsuit. They said their members would abide by social distancing and other health and safety guidelines.

Not good enough, Cooper’s attorneys said. They told the court the risk of infection is greater if people are indoors, seated or stationary for lengthy periods, and close to one another. Outdoor services or services held in parking lots didn’t post the same risks. Sheriffs or other law enforcement would decide if a service were legal.

“That’s a remarkable answer in light of the Free Exercise Clause,” Dever wrote.

The judge noted the odd distinction between worship services and other activities Cooper’s orders allowed.

“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 11 men and women cannot be trusted to do the same when they worship inside together on Saturday or Sunday.” Dever wrote.

The plaintiffs “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.”

Dever ordered the state not to enforce the ban on indoor services. He scheduled a hearing for a preliminary injunction at the federal courthouse in Raleigh Friday, May 29.

In a statement, Cooper spokesman Ford Porter said the state would follow the order though the governor disagreed with 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. 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,” Porter said.