RALEIGH — Gov. Roy Cooper received pushback on his multiphase reopening of the state over language in the current order which, critics say, unnecessarily restricts church services more than secular institutions. Those who have spoken out on the issue so far include state senators, the N.C. Sheriffs’ Association, the N.C. Association of Chiefs of Police and a number of churches.
Phase one of Cooper’s reopening plan allows people to frequent retail establishments but instructs religious communities against indoor services unless it is “impossible” to have the services outside.
On May 8, 18 state senators sent Cooper a letter asking him to clarify “what conditions make it ‘impossible’ for a worship service to take place outside.” The senators, all Republicans, said the clarification was needed so that citizens could exercise First Amendment rights “without fear of potential criminal penalties if they don’t reach the correct interpretation of ‘impossible.'”
In a joint statement, Sens. Kathy Harrington (R-Gaston) and Carl Ford (R-Rowan) said, “Gov. Cooper’s absurd state order is unconstitutional on two grounds: it treats churches differently than commercial establishments, and it treats some religions differently than others. It’s plainly unconstitutional.”
Sens. Harrington and Ford continued, “Gov. Cooper’s order also has content-based restrictions: The Governor has prevented more than 10 people from meeting in a chapel for a worship service, but he simultaneously allows 50 people to meet in that same chapel in the same pews if the worship service involves a funeral. There is no health and safety distinction between these two gatherings in the same chapel. It is a content-based restriction on the free exercise of religion, and it is unconstitutional.”
Cooper has yet to respond publicly to the senators. However, in a letter to a church group, Cooper’s general counsel William McKinney said, “the decision to bring an enforcement action based on violation of the governor’s executive orders is a decision for local law enforcement, including the District Attorney.”
On Friday afternoon, the N.C. Sheriffs’ Association’s executive committee issued a resolution asking for Cooper to amend his newest Executive Order 138 to allow indoor worship services.
The sheriffs said they believe that “the restrictions and recommended guidelines that apply to persons who gather to worship should be no more stringent than those that apply to businesses that are allowed to remain open.”
The N.C. Association of Chiefs of Police also sent a letter on May 10 requesting a change in Cooper’s executive order. In language similar to the state’s sheriffs, the N.C. ACP’s letter said, “The North Carolina Association of Chiefs of Police respectfully requests that Executive Order No. 138 be amended to allow worship services with restrictions similar to those applying to the operation of retail businesses.”
The letter, signed by N.C. ACP’s president, Chief David Hess of the Roxboro Police Department, added, “Freedom of religious worship embodied in the U.S. and N.C. Constitutions is held dear by our citizens and cannot be diminished with unreasonable and unjustified disparate treatment in law.”
A group backed by a statewide coalition of churches announced Saturday they intend to sue Cooper over the limits on churches and assembly, calling the limits unconstitutional.
A guidance document was issued by Cooper’s office that specifically covers the topics of “religious services and mass gathering restrictions.” The guidance document is not dated and claims that “some occurrences, including religious services, are exempted from the order’s definition of mass gathering.”
The guidance was sent to lawmakers on May 11 by Lee Lilley, Cooper’s director of legislative affairs. While this guidance is supposed to clarify the matter, it actually seems to contradict itself.
The guidance says there “is no limit” to the number of people who can attend outdoor worship so long as social distancing is employed or with no social distancing if congregants remain in their cars.
When it comes to indoor worship, the guidance says that there is a 10-person cap in a confined space and suggests using multiple event sessions, use of different rooms or online services. The indoor section then drops the 10-person cap if outdoor services are “not possible” and if none of the previous mentioned indoor distancing measures can be met.
Return America is represented by David C. Gibbs Jr. of the Christian Law Association. On April 22, 2020, Restore America sent a letter to Cooper alleging that his executive order “unconstitutionally restricts churches’ freedom to assemble.” That letter was signed by 195 pastors, and according to the group, Cooper did not respond to the letter.
“He has curtailed church assembling and limited attendance to a maximum of no more than ten people per service,” said Pastor Ron Baity, president of Return America, in the release. “At the same time, he has allowed ABC stores, abortion centers, hardware stores, Wal-Mart stores, vapor shops, NASCAR, and others to operate at much larger capacities. This is discrimination against the church!”
Cooper’s general counsel McKinney had responded to another church, Sovereign Redeemer Community Church in Youngsville, which had sought clarification on the governor’s orders related to worship and non-retail gatherings.
In his letter, McKinney said that the governor’s orders “account for and continue to accommodate the fundamental rights and liberties of North Carolinians.” McKinney also said the orders were a “generally applicable limitation on mass gatherings,” and that indoor worship services of more than 10 people were prohibited because they involved “people who are otherwise in close proximity and relatively stationary for extended periods.”
At May 12’s briefing from the Emergency Operations Center in Raleigh, Cooper sidestepped a question about the church services. While it was expected he would address the issue, Cooper made no mention in his prepared remarks of any changes in the executive order. N.C. Department of Health and Human Services secretary Mandy Cohen added that walking around outdoors was a safer activity than gathering in the same place indoors seated for extended periods of time.