Last week, a federal court in North Carolina issued a temporary restraining order enjoining the assembly of religious worship provisions in Governor Roy Cooper’s Executive Order 138 (EO-138).  The court found that EO-138 was likely to violate the Free Exercise Clause of the First Amendment.  Under EO-138, all worship services involving more than 10 people must be held “outdoors unless impossible.”  Governor Cooper’s Director of Legislative Affairs issued a “Guidance for Religious Services and Mass Gathering Restrictions” that provides:

In situations where it is not possible to conduct worship services outdoors or through other accommodations – such as through, for example a series of indoor services of ten or fewer attendees or through on-line services – the ten-person attendance limit on indoor worship services does not apply.  For example, there may be situations where particular religious beliefs dictate that some or all of a religious service must be held indoors and that more than ten persons must be in attendance.

According to the Governor’s lawyer at oral argument, “it would be up to a sheriff or other local law enforcement officer who would decide whether the religious entity or individual was correct in deciding whether it was ‘impossible’ to worship outside.”  According to the Court, “[t]hat’s a remarkable answer in light of the Free Exercise Clause.”

The Court determined that EO-138 was likely to violate the Free Exercise Clause because religious assemblies were treated worse than their secular counterparts.  The Court reached this conclusion because under EO-138 individuals performing non-religious activities could do so indoors in groups larger than 10 without having to demonstrate that it would be impossible to do so outside.  People who operate or gather and wait at an airport, bus or train terminal, shopping mall, shopping center, Wal-Mart, Lowes and countless other businesses can do so in groups larger than 10 without having to demonstrate that it is impossible to do so outside.  The Court stated that the “Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.”  Although the government’s actions to prevent the spread of COVID-19 constitute a compelling interest, the Executive Order was not narrowly tailored to achieve that interest, especially since the plaintiffs in this case (religious entities) could worship indoors and follow all hygiene and social distancing requirements to help protect against the coronavirus.

The memorandum of decision in Berean Baptist Church v. Governor Roy A. Cooper, III (E.D.N.C. 2020) is available here.