Publisher's note: This post appears here courtesy of the Carolina Journal, and written by Brooke Conrad.
A Raleigh lawyer is criticizing Gov. Roy Cooper's decision to allow only outdoor church services.
The lawyer, Anthony Biller, with Michael Best & Friedrich LLP, says an executive order
Cooper issued Tuesday continues to discriminate against religious practice. Biller criticized the order in a letter
on behalf of Hope Baptist Church and congregants Ashok and Sona Noah to Cooper lawyer William McKinney. In the letter, Biller calls the order vague and says it fails to define "impossible."
Tuesday's order allows North Carolina to enter Phase One of eased stay-at-home restrictions starting Friday. The new order allows people to congregate for worship and for various other mass gatherings, but says those activities "shall take place outdoors, unless impossible."
The gatherings of 10 people or fewer allowed by Cooper's order include those related to health and safety, obtaining goods and services, work, worship, exercise of First Amendment rights, receiving government services, airport and public transportation operations, medical facilities, shopping malls, and shopping centers.
Any of these mass gatherings could be conducted outside, no matter how impractical, Biller wrote. Retail stores could sell merchandise from parking lots. Doctors could examine patients outside. Airlines could board passengers from the tarmac instead of the terminal. Government employees - including the governor himself - could hold meetings and gatherings outside.
"You could pen a response to this letter under the shade of one of Raleigh's imposing oaks while enjoying a refreshing North Carolina springtime breeze,"
If "impossible" simply means "impractical," then the governor's order would appear to discriminate against churches, Biller argues.
"By their plain or otherwise vague terms, Executive Order Nos. 121 and 138 single out religious entities for different treatment,"
he wrote. "The Governor's decision to engage in such discrimination against religious practice subjects his orders to strict First Amendment scrutiny."
Violating the executive order would result in criminal penalties, Biller notes.
The letter comes as 400 churches prepare to sue Cooper
early next week, Rep. Michael Speciale, R-Craven, confirmed Thursday, May 7.
, director of legal studies at the John Locke Foundation, disagrees with much of Biller's assessment. He said the new order is a major improvement on the original lockdown order
when it comes to the free exercise of religion and rights to assemble and petition the government.
"I don't see anything in [the new executive order] that treats religious worship differently from other comparable activities,"
Guze said. "I agree with Biller that 'impossible' was a poor term to use, but you can't expect emergency orders to be perfectly drafted, and I find it hard to imagine a court finding the order 'void for vagueness.'"
Still, the governor's order is problematic for other reasons, Guze said. That includes his failure to obtain concurrence on the order from the Council of State
, an abuse of power under the Emergency Management Act.
"I think the orders could be successfully challenged on that basis,"
The governor has no constitutional authority to tell churches what to do, said Speciale, who along with 30 other House lawmakers supports the pending lawsuit. If the governor would have simply offered a recommendation to stay home, instead of an order, most churches likely would have followed it, Speciale said.
"All the people I talked to didn't have a problem with it because they all want to do what's best,"
he said. "But now we look at the numbers and what's going on ... everybody feels it's gone too far."
Biller last month drafted a letter
to Cooper's lawyer on behalf of ReopenNC, a 75,000-member group that has gathered in downtown Raleigh each Tuesday to protest the governor's stay-at-home order.
The John Locke Foundation
, publisher of Carolina Journal, has contracted with Biller for intellectual property services for more than a decade.