Judge decides Culpeper churches must continue following executive order
Lawyer has filed nearly identical suit in Rappahannock
Local churchgoers must continue following coronavirus-related safety guidelines a er a ruling by Culpeper County Circuit Court Judge Dale B. Durrer last week denied a request for temporary injunction easing restrictions during church services.
Attorney J. Michael Sharman led the lawsuit against Northam on behalf of Ron Young, pastor of Alum Spring Baptist Church, and Charles Sheads Sr. and Jocie Stallings, members of Novum Baptist Church in Madison County. Sharman has also led nearly identical lawsuits in Rappahannock and Madison counties.
The suit claimed that Virginia Gov. Ralph Northam’s Executive Order 72 “re ects the Governor’s bias and belief that employers and educational leaders are to be trusted and church leaders are not.” It argued further that the order encroaches on their religious liberties.
THE LEGAL ARGUMENTS
Representing the state, Solicitor General Toby J. Heytens argued that businesses face more restrictive measures than churches and that religious services have continued uninterrupted throughout the pandemic. Capacity limits have not been enforced at churches since July and the only requirements for religious services are social distancing and masks, Heyten said.
Sharman countered that the executive order does not outline exactly what distancing protocols are required, and this vagueness imposes capacity restrictions upon churches.
Northam’s order has been amended several times. Current guidelines for religious services with over 10 participants include:
➤ Proper physical distancing at all times.
➤ Marked seating and common areas where attendees may congregate socially distanced.
➤ Food or beverage distribution items being disposable or cleaned between uses of non-family members.
➤ Routine cleaning of frequently contacted surfaces before and a er services.
➤ That individuals wear face masks unless they have trouble breathing or face coverings must be removed to participate in religious rituals.
➤ Posted signage stating those with coronavirus symptoms cannot participate in services.
➤ Posted public health reminders regarding social distancing, gatherings and more.
In deciding whether Northam violated the Virginia Statute for Religious Freedom when he issued Executive Order
72, Judge Durrer commented that the statute does not prevent the government “from maintaining health, safety, security or discipline.”
The statute maintains that the government cannot “substantially burden” free religious practices unless it can demonstrate that the burden is “essential to further a compelling governmental interest” and implements “the least restrictive means of furthering that compelling governmental interest.”
According to the U.S. Court of Appeals for the Fourth Circuit, a “substantial burden” forces “an adherent to modify his behavior and to violate his beliefs” or to“choose between following the precepts of her religion and forfeiting [governmental] bene ts, on the one hand, and abandoning one of the precepts of her religion … on the other hand.”
In denying injunctive relief, Durrer wrote that Executive Order 72 does not limit church capacity or prevent assembly, communion, singing or praying.
Addressing whether the least-restrictive means have been implemented, Durrer noted the order “exempts religious services from the otherwise-universal temporary gathering restrictions” and “indicates that individuals may be seated wherever and with whomever they want with appropriate physical distancing.”
Durrer went on to say that the court recognizes the distinction between a political debate re ecting rational disagreement with the order and a judicial ruling that the order is unconstitutional.
A er determining that the Executive Order does not violate the Virginia Statute for Religious Freedom, Durrer examined whether the request for a temporary injunction passed a fourpronged test. While the lawsuit did not meet all of the requirements, it met some, such as proving the plainti s will su er irreparable harm without preliminary relief.
“The ability to worship as one chooses is sacrosanct in the United States of America. Any restriction on that right causes irreparable harm,” Durrer wrote.
Durrer conceded that the plainti s “demonstrated that the requested temporary injunction is in the public interest and balance of equities tips in their favor” as “the court holds that the protection of constitutional rights is always in the public interest.”
“Conversely, the protection of the public health and safety is also of great concern,” he wrote. “However, the court heard no evidence that any activity at these speci c churches, including, without limitation, physical distancing and gathering has or would result in an increase of the spread of Covid-19.”
Concessions notwithstanding, Durrer wrote that the plainti s failed to prove that they are likely to succeed on the merits of their presented argument. He wrote that the state legislature has empowered the health commissioner to “meet any emergency or to prevent a potential emergency caused by a disease dangerous to the public health.”
Durrer said the U.S. Supreme Court has stated that “it is no part of the function of a court to determine which measures are likely to be the most e ective for the protection of the public against disease.”
“In this case, the purpose of the order is not to infringe or prohibit religious worship, but to ensure that it occur safely during a worldwide pandemic,” he wrote. “Therefore, the court holds that the Petitioners are not entitled to injunctive relief under the statute.”
ELEVATING POLICE POWERS OVER INHERENT RIGHTS?
Nevertheless, Sharman and his clients are not giving up. “This was only a denial of the request for Temporary Injunction,” he wrote in an email, adding, “the case is not over.”
“We still have the Permanent Injunction and the Declaratory Judgement trials to do. The judge’s letter opinion and order denying our request for the Temporary Injunction lets us see what concerns he has regarding the merits of the case so that we now see what is needed to overcome those concerns,” he wrote.
Sharman declined to comment further, as the order is not yet nalized or submitted to the record. He explained that nalizing an order is a bureaucratic process, but “during this time, the Judge can edit and change the order as he pleases. A er it is nalized and admitted to record, any change is much more cumbersome to make.”
In his objection to the ruling, Sharman wrote that both the U.S. Constitution and the Virginia Constitution impose “limits on a government’s exercise of its police powers.” The attorney argued that the court erred “when it inverted that rule and elevated the government’s exercise of its police powers over the Plainti s’ inherent rights.”
The plainti s are asking that the least-restrictive guidelines possible be placed upon churches. In an interview before the ruling, Sharman said his clients are merely attempting to obtain religious freedom and equality under the law, and added that churchgoers should not be subject to harsher guidelines than anyone else.