N.C. Sen. Jim Perry, R-Lenoir, has reached out to Gov. Roy Cooper in defense of a pastor who calls the governor’s stay-at-home order discriminatory against churches and houses of worship.

The pastor, who worships in Perry’s district, says Cooper’s order limits churches to 10 people, but limits on other retailers, such as grocery stores, aren’t nearly as restrictive.

Cooper’s order allows for religious services, but restricts mass gatherings, which means no more than 10 people can attend at one time.

According to Perry’s letter to Cooper: “Major retailers are allowed 20% of the fire code occupancy per one thousand square feet,” the pastor writes. “Twenty percent of the fire code occupancy assigned to our building would be 100 people. His order for houses of worship is only 10 people or less. Why are houses of worship not being treated as the retail stores and other businesses when we are an essential business as well?”

Perry, to clarify, writes to Cooper: “I will note that your executive orders state that retailers are limited to 20% of total fire code occupancy or five customers for every 1,000 square feet.

 “But the pastor’s general point is correct. Two identical buildings could be side-by-side,” Perry’s letter says. “If one is a retail store, your executive order permits dozens of people to enter the premises. If the other is a church, your executive order limits occupancy to 10 or fewer people.

 “This disparity is disturbing. Why can’t houses of worship be subject to the same 20% occupancy restrictions that you’ve allowed businesses to operate under?

 “I urge you to reconsider your executive orders so that they no longer impose stricter regulations on houses of worship compared to commercial operations.”

Jon Guze, director of legal studies at the John Locke Foundation, says such government-forced restrictions infringe on people’s right to the free exercise of religion.

 “The courts regard the free exercise of religion as one of the most sacrosanct of all constitutional rights,” Guze has said. “As a result, regulations that restrict the free exercise of religion are subject to the highest level of judicial scrutiny and will only be upheld if they meet a two-part test. First, they must further a ‘compelling governmental interest.’ Second, they must be ‘narrowly tailored’ so that they achieve their objective in the least restrictive way possible.” 

Even essential services can be restricted, Guze says. But when it comes to restrictions on the free exercise of religion, the restrictions must accomplish their objective in the least restrictive way possible. 

Counties such as Wake have imposed even more stringent rules on First Amendment rights, which are guaranteed by the U.S. Constitution. 

The Wake County order goes as far as prohibiting church staff from passing out literature, distributing communion, and the personal collection of gifts and donations.

“Those three items in particular are screamingly unconstitutional,” says Jon Sanders, director of regulatory studies at JLF. “The order treats churches differently from other businesses, and among the ‘strictly prohibited’ practices is a specifically Christian sacrament.”