About 400 North Carolina churches could join a lawsuit challenging Gov. Roy Cooper’s statewide stay-at-home order.
Cooper, who in late March ordered North Carolinians to stay home and all non-essential businesses to close, violated the constitutions of the state and federal governments by limiting religious gatherings, said Rep. Keith Kidwell, R-Beaufort, who’s organizing the lawsuit. He’s working with three lawyers and two constitutional law centers to file the lawsuit in state and federal court. About 30 state representatives said they would support it.
The lawsuit will likely be filed mid-week, the NC Insider reported Tuesday, May 5.
Kidwell wants religious protections enshrined in a new law. Saturday, he filed House Bill 1059, which would allow churches to continue meeting during a state of emergency and allocate money for things such as masks and hand sanitizer. Co-sponsors include Rep. Jason Saine, R-Lincoln; Rep. Mitchell Setzer, R-Catawba; and Rep. Kyle Hall, R-Stokes.
State and federal constitutions clearly prevent infringement on religious liberties, Kidwell said. Meanwhile, the governor’s order creates a double standard when it comes to what’s open and what’s closed.
“The big-box stores are allowed to remain open, and it looks like it’s Christmastime in most of them,” Kidwell said. “Yet churches are not allowed to open even though they’ve been declared essential businesses.”
Churches are the only “essential” entities in the governor’s order that remain subject to the 10-person limit on gatherings, said Jon Guze, director of legal studies at the John Locke Foundation. All other businesses and operations are permitted to operate as they wish as long as they follow social-distancing guidelines.
“Singling out religious organizations for more restrictive treatment in this way is almost certainly unconstitutional,” Guze said.
A restriction that specifically burdens religious practice will only be upheld if it is “narrowly tailored” to further a “compelling government interest,” he said. The compelling government interest is obvious: limiting the spread of COVID-19. Compliance with the “narrowly tailored” standard is more difficult to defend.
“It’s hard to see how an order that limits church gatherings to 10 people while allowing larger numbers to convene at lawn and garden equipment retailers, book stores, liquor stores, and pet and feed stores can be said to be narrowly tailored,” Guze said.
Churches in other states are making similar arguments.
The Beloved Church in Lena, Illinois, argued the state’s stay-at-home discriminates against religious institutions. Members gathered Sunday, the same day a U.S. District Court judge ruled the stay-at-home order constitutional. The judge, John Z. Lee, acknowledged religious activities currently allowed by the order are “imperfect substitutes” for in-person gatherings.
“Still, given the continuing threat posed by COVID-19, the order preserves relatively robust avenues for praise, prayer, and fellowship, and passes constitutional muster,” he wrote.
Lighthouse Fellowship Church on Virginia’s Chincoteague Island sued after its pastor was cited for holding a Palm Sunday service with 16 people. The pastor faced a $2,500-fine and possible jail time. The U.S. Justice Department sided with the church.
“The Commonwealth cannot treat religious gatherings less favorably than other similar, secular gatherings,” G. Zachary Terwilliger, U.S. Attorney for the Eastern District of Virginia, said in a statement.
North Carolina’s emergency statutes were written for hurricanes and wildfires, said Rep. Michael Speciale, R-Craven.
“Nobody envisioned something like this, or any governor stretching so far to tell people to stay home and close their business. Nothing was ever designed for that,” he said.