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Our Opinion: Cooper's church occupancy limits are unconstitutional

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In the age of COVID-19, is pushing a shopping cart really safer than holding a hymnal? 

Gov. Roy Cooper’s May 5 executive order reopening parts of North Carolina’s economy allows retail businesses to operate at 50% of their fire code capacity. Yet churches are limited to 10 people for indoor worship services.  

Faith leaders and state lawmakers have raised concerns about unequal treatment for houses of worship. Cooper defended the decree in a Tuesday press briefing, claiming that it’s better to let hundreds of people browse a big-box store’s aisles than to allow a few dozen to sit 6 feet apart on church pews. 

“Some people are trying to compare this with retail. There’s a big difference,” Cooper said. “With retail, people are moving around, and you don’t have as much a chance to spread the virus. It’s a significantly greater chance when people are sitting or standing indoors and close together.” 

That sounds more like a hunch than hard science. While an uninfected person may be at greater risk the longer he or she’s in a coronavirus carrier’s presence, someone who has COVID-19 could pass germs to more people while milling about. If there are epidemiological studies suggesting stores pose a lower risk than churches, we couldn’t find them. 

Lt. Gov. Dan Forest, the Republican candidate who’s running against Cooper, has been critical of his Democratic opponent’s stance on church gatherings. GOP legislative leaders have also raised alarms, along with the conservative North Carolina Values Coalition. But perhaps the best critiques come from the N.C. Sheriffs’ Association and N.C. Association of Chiefs of Police, two nonpartisan groups representing law enforcement leaders of all political stripes.

The sheriffs’ association adopted a resolution last week calling on Cooper to amend his executive order and treat churches the same as retail businesses for purposes of public occupancy. The police chiefs’ group expressed concern about the order in a Sunday letter.

“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,” wrote Roxboro Police Chief David L. Hess, who serves as the chiefs’ association president. 

On Wednesday, Johnston County Sheriff Steve Bizzell and Craven County Sheriff Chip Hughes said their offices won’t enforce church service restrictions. 

A loophole in Executive Order 138 requires any gatherings of more than 10 people to take place outdoors “unless impossible.” Pastors, legislators and lawyers have asked how literally Cooper defines “impossible.” Would thunderstorms or extreme heat allow churches to usher groups of more than 10 people inside? 

The governor’s office provided the sheriffs’ association with a guidance document stating the 10-person limit on indoor services would be waived “in situations where it is not possible to conduct worship services outdoors or through other accommodations.” Only one example is cited — a service that particular religious beliefs dictate must be held indoors and must include more than 10 people.

That explanation doesn’t satisfy Cooper’s critics. In a Tuesday news release, state Sens. Kathy Harrington, R-Gaston, and Carl Ford, R-Rowan, called the order “absurd” and said it’s “unconstitutional on two grounds: it treats churches differently than commercial establishments, and it treats some religions differently than others.” 

The First Amendment’s free-exercise clause allows Americans to gather in churches, synagogues, mosques and other places of worship without undue government interference. Executives like Cooper enjoy sweeping emergency powers that can temporarily preempt, not permanently supersede, the exercise of individual rights. But such powers aren’t absolute.

Legal scholars say religious congregations aren’t exempt from public health restrictions to prevent the spread of COVID-19, but rules that discriminate against people based on religious practice are unlawful. 

“To be clear, any laws that singled out churches for special restrictions would likely not only violate the First Amendment but also violate due process requirements in the Fifth and 14th Amendments,” political science professor John Vile wrote in the Free Speech Center at Middle Tennessee State University’s online encyclopedia. 

While forced business closures and the now expired stay-at-home order are controversial, Cooper has made a good-faith effort to balance public health with personal freedom. We applauded the governor for affirming #ReopenNC demonstrators’ right to protest his executive orders. 

Where church services are concerned, however, Cooper is wrong. As our state’s sheriffs and police chiefs suggest, he should amend Executive Order 138 to place houses of worship on equal footing with retail businesses and require both to limit their indoor occupancy to half the permitted fire code capacity. 

That’s the outcome our Constitution requires — partisan pandemic politics aside.  

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