The Governor insists at the outset that there are “no exceptions.” ROA (20-5427) 13-1 at 25. But that is word play. The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services.
Keep in mind that the Church and its congregants just want to be treated equally. They
don’t seek to insulate themselves from the Commonwealth’s general public health guidelines.
They simply wish to incorporate them into their worship services. They are willing to practice
social distancing. They are willing to follow any hygiene requirements. They do not ask to
share a chalice. The Governor has offered no good reason for refusing to trust the congregants
who promise to use care in worship in just the same way it trusts accountants, lawyers, and
laundromat workers to do the same.
Come to think of it, aren’t the two groups of people often the same people—going to
work on one day and going to worship on another? How can the same person be trusted to
comply with social-distancing and other health guidelines in secular settings but not be trusted to
do the same in religious settings? The distinction defies explanation, or at least the Governor has
not provided one.
[…]
As before, the Commonwealth remains free to enforce its
orders against all who refuse to comply with social-distancing and other generally applicable
public health imperatives. All this preliminary injunction does is allow people—often the same
people—to seek spiritual relief subject to the same precautions as when they seek employment,
groceries, laundry, firearms, and liquor. It’s not easy to decide what is Caesar’s and what is
God’s in the context of a pandemic that has different phases and afflicts different parts of the
country in different ways. But at this point and in this place, the unexplained breadth of the ban
on religious services, together with its haven for numerous secular exceptions, cannot co-exist
with a society that places religious freedom in a place of honor in the Bill of Rights: the First
Amendment.
Excerpt:
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