IN TRYING to combat a new, contagious and deadly strain of coronavirus from China, governors across the nation have had to make some quick decisions that severely curtailed Americans’ freedom to work, gather, move about and attend religious services. Gov. Ralph Northam was no exception. But some of his hastily-made decisions are now under scrutiny.
On March 30, Northam issued Executive Order 55, which prohibited more than 10 people from gathering together in all public and private places, including houses of worship. Two weeks ago, under Phase I reopening orders, he lifted the 10-person limit, provided that churches, synagogues and mosques limit in-person occupancy to 50 percent, require all worshippers to wear masks and practice social distancing, and adhere to other hygienic practices.
Most of these restrictions were justified under the governor’s emergency powers. But a federal lawsuit filed against Northam by a small church in southeast Virginia is challenging the constitutional limits of that power, and the U.S. Department of Justice’s Office of Civil Rights is on the church’s side.
In a nutshell, the Chincoteague Police Department issued Pastor Kevin Wilson a criminal citation on April 5 for allowing 16 worshippers in his 225-seat Lighthouse Fellowship Church on Palm Sunday while the 10-person limit was still in place, even though they were allegedly all seated at least six feet apart and followed all the other covid safety protocols.
Wilson, who faces a year in jail and a $2,500 fine, claims that the 10-person limit was discriminatory because there were no such numerical limits on “so-called ‘essential’ commercial and non-religious entities,” including liquor stores, warehouse clubs, and big box retailers.
DOJ has intervened on the church’s behalf. “This case involves important questions of how to balance the deference owed to public officials in addressing a pandemic threatening the health and safety of the public with fundamental constitutional rights,” the department stated in its court filing, adding that “there is no pandemic exception to the Constitution and its Bill of Rights.”
Virginia Attorney General Mark Herring’s office, which is defending the governor, responded that allowing any religious gatherings of more than 10 people at the time “would seriously undermine” efforts to curb the spread of the disease.
But Herring needs to explain how 16 social-distancing Lighthouse Fellowship Church members endangered the public when untold numbers of unmasked Virginians were simultaneously flocking to home improvement stores to purchase items such as garden mulch, stretching the definition of “essential” to ludicrous levels.
As the DOJ noted, there were many exemptions to the 10-person rule. “A large law firm, real estate firm, or any other non-retail business, such as a production facility, is free to operate using its entire workforce, without any limits on the size of meetings or any prohibitions on gathering .…The proper response to the COVID-19 pandemic will vary over time depending on facts on the ground. But the Commonwealth cannot treat religious gatherings less favorably than other similar, secular gatherings.”
Mat Staver, chairman of Florida-based Liberty Counsel, which is representing Wilson, also pointed out that even Northam’s April 8 press conference on COVID-19 violated the 10-person limit. More recently, the governor himself was caught hypocritically violating his own six-foot social distancing order in Virginia Beach.
Yet Northam isn’t facing any criminal charges. And threatening to jail a pastor who ministers to recovering drug addicts and former prostitutes while the commonwealth has been busy releasing convicted rapists and cop killers has already crossed the border into the absurd.
Arbitrary executive orders and selective enforcement might be excused as missteps in the fog of war against a deadly virus, but such discriminatory behavior cannot be condoned.
Hopefully, an unambiguous ruling from the federal bench will not only make sure this sort of thing doesn’t happen again during a future crisis, but will also clearly define what’s really essential: protecting all Virginians’ constitutional rights without exception, pandemic or no pandemic.