John Locke Update / Research Brief

No justification for Wake County blocking drive-through Easter service

posted on in City & County Government, COVID-19 Series, Law & Regulation, Legal Update, Local Government, Rights & Regulation
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Gov. Cooper’s stay-at-home executive order had a “spoonful of loophole” that let any businesses, nonprofit, or educational institution remain open provided it could “meet Social Distancing Requirement” between its employees and between employees and customers other than at the point of sale. Wake County’s stay-at-home order does not.

In Wake County, if you’re not one of the many, many businesses exempted from the order, its commissars forbid you dare even try to maintain social distancing. You! Are! Not! Essential!

To be clear, in Wake County, you can order at a drive-through at Burger King without question. You can go to a pawn shop without question. You can take public transportation. You can go to hardware stores. You can stay at hotels. I’ve nothing against any of the exempted businesses, but there are so many in Wake that even with listing them by broad categories, the county’s list went from (a) through (z) and was still going through (gg).

We’ve learned from John Trump’s April 7 Carolina Journal exclusive report, however, that you can’t go to hear the Easter message at a Wake County church — even if you never leave your car, even if you are 10 feet from the nearest human being, even if there’s not even a point-of-sale exchange:

[Plymouth Church pastor Dr. Chris] Partin had a simple idea to celebrate the most holy week for Christians, one that kept people 10 feet apart and seemingly put no one at risk. Sort of a passion play, sans costumes and theatrics. Worshippers would stay in their cars, and church staff — again, spread out in the parking lot — would try to relay a bit of normalcy. …

“We were going to have different stations, with staff members, like our musician was going to be playing a keyboard outside at one station,” Partin told Carolina Journal.

“And then you drive up to the next one. And again, we would be at least 10 feet away from everybody and my wife and I would be there and we would read part of the Easter story and wave and say ‘hey’ to everybody. … My children’s minister would be there, and was going to have balloons and posters and lots of things, signs saying how much we miss you and all that … .”

Regardless of the business, such careful attention to Social Distancing precepts clearly would be allowed under Cooper’s order. Cooper’s order also allowed “Travel to and from a place of worship” as well as all functions of “religious entities” subject to the limitations of “mass gatherings” of 10 or more people, which obviously would not apply to people in cars. (It may not even apply to churches, given its Section 3.A.2 that exempts “any COVID-19 Essential Business of Operation as defined in this Executive Order.”)

Still, knowing that stricter local orders could supersede, Partin asked the county. And the county, well …

You know that old line, “I wouldn’t touch you with a 10-foot pole”? Wake County won’t even let you get close enough to do that, not if you are sharing the key message of Christianity on church property. They ruled it verboten:

The Wake County Attorney’s Office has received your written request for a determination as to whether churches may hold drive-in/drive-through church services in which persons would drive to a certain location, stay in their cars, and listen to portions of the Easter story read by staff members.

A determination has been made that drive-in/drive-through church services are PROHIBITED and are NOT ALLOWED pursuant to Section 7 and Section 10(p) of the current Proclamation of Emergency Restrictions signed by the Chairman of the Wake County Board of Commissioners on March 26, 2020 (the “Proclamation.”)

Section 7 of the Proclamation states “All public and private gatherings of any number of people, including non-Wake County residents, occurring outside of a single household or residential unit are prohibited, except for the purposes expressly permitted in Section 1 of this Proclamation.”  Section 1 of the Proclamation requires that “each Wake County resident remains in his/her/their household or residential living unit except as required or permitted for Essential Activities,” and the Proclamation does NOT include church attendance or attendance at faith organizations or institutions within its definition of “Essential Activities.”

Section 10(p) of the Proclamation provides that faith organizations and institutions may only be allowed to stay open “for the purpose of providing online distribution, audio or visual broadcasting of services providing only minimal staff, required for said broadcast or distribution, are present and implement social distancing practices[.]”  Since drive-in/drive-through church services would involve the presence of not just “minimal staff” but other individuals as well, they are prohibited under Section 10(p) of the Proclamation. …

But what about our constitutional rights? Oh, Wake County is so far wrong here, even the ghost of George III is gobsmacked.

No, Wake County can’t distance people from their inherent, God-given rights

Wake County’s diktat fails in many ways. First, it’s a clear violation of people’s religious freedoms. Those are the very first rights secured from government usurpation in the Bill of Rights.

I like how my colleague Jon Guze, director of legal studies here, put it to Carolina Journal:

In the first place, the county attorney’s statement that religious services do not qualify as essential under the order simply can’t fly. If the exercise of religion is sufficiently important to merit a specifically enumerated constitutional right, it must certainly be important enough to be classified as an essential activity under any emergency order. Either the county attorney is misinterpreting the order, or the order itself is unconstitutional in that regard.

This same reasoning is why Wake County had to back off closing guns and ammunition shops as “nonessential” — because they are essential to upholding Second Amendment rights.

Second, Wake’s order goes well beyond what courts would allow in times of crisis. Guze points out that courts require restrictions on religious freedom to meet the very tough tests of meeting “a compelling government interest” and be “narrowly tailored” to achieve only that interest in “the least restrictive way possible.”

A restriction amid a pandemic is a compelling government interest, but an order that treats a drive-through, stay-in-your-cars Easter Message as essentially no different from a packed, one-room “Let’s All Hug for Jesus” service is not narrowly tailored in the slightest. It fails that test and is an unconstitutional violation of religious freedoms.

As Guze said, “A well-organized drive-in church service clearly would minimize the risk of infection, so any order forbidding such services violates the constitutional right to the free exercise of religion.”

Third, Wake’s order treats churches differently from other businesses. Singling churches out from other businesses is unconstitutional on its face. It fails even at the “drive-through” level. There’s a greater risk of infection from point-of-sale at a fast-food drive-through than at what Partin proposed for Plymouth Church.

Forbidding drive-in/drive-through church following Social Distancing strictures while allowing drive-through at Burger King et al. is not only facially unconstitutional, it flunks common sense.

Fourth, Wake’s order fails its own order. The county attorney citing the order to the pastor as if it were holy writ overlooked Section 10(gg), which exempts “Any business or entities identified as essential by the federal government or the State of North Carolina.”

As discussed above, Cooper’s order identified churches (“Religious facilities, entities, groups, gatherings, including funerals”) as essential.

In short, Wake County has no solid rock to stand on with this order. They should retract this determination immediately and beg the church for forgiveness.

When, in the course of emergency events …

The threat of a pandemic doesn’t mean God-given fundamental civil rights are suddenly expendable. They must persist, especially during an emergency. Otherwise, some local board of tinpot tyrants could be tempted to declaring emergency as prelude to stripping people of their civil rights.

As Partin said, “this is the first time since 1776 that the government has mandated that churches close. To me, it sets a terrifying precedent. Because if they can do it over a virus, why can’t they do it over other issues that the government decides?”

God forbid.

Jon Sanders studies regulatory policy, a veritable kudzu of invasive government and unintended consequences. As Director of Regulatory Studies at the John Locke Foundation, Jon gets into the weeds in all kinds of policy areas, including electricity, occupational licensing, hydraulic… ...

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