BANGOR, ME – Calvary Chapel of Bangor filed its reply brief regarding the request for an emergency injunction to the First Circuit Court of Appeals pending an appeal in the lawsuit against Governor Janet Mills’ unconstitutional orders against churches. Under the governor’s orders, no religious gatherings are permitted, including parking lot services.
The Reply Brief argues that the 1905 Supreme Court vaccination case of Jacobson v. Massachusetts does not support the governor’s authority to issue executive orders that severely limit religious freedom and direct the form and manner of worship. First, Jacobson did not involve the First Amendment. Second, Jacobson was decided before the First Amendment was applied to the states. Third, decades after Jacobson, the Supreme Court developed the “strict scrutiny” jurisprudence that requires that the government must accomplish its compelling interest (if it has such an interest) in the least restrictive manner.
Regarding the requirement to apply to reopen and display a “badge,” the governor relegated her response to a short footnote. But, under the Restarting Maine’s Economy Plan, which has the legal force of Executive Order 49, any business or entity wishing to “reopen” must apply for and be granted a “badge” prior to reopening.
Even if Gov. Mills unilaterally removes some restrictions on churches in the heat of this litigation, that is not enough. She has also said the virus presents an “ongoing threat” and fears a “second wave,” and states it will be a long time to return to “normal.” Thus, since she unilaterally issued her unconstitutional Executive Order, nothing except the court can prevent her from issuing more restrictions.
Finally, the Reply Brief argues that religious gatherings in houses of worship do not present more health risks than non-religious gatherings. In fact, there is less risk in religious gatherings that include social distancing for much less time than employees of supercenters and big box centers who work eight hours a day and encounter hundreds of people.
Gov. Mills said that churches will only be allowed to meet in small numbers when she is satisfied with the “metrics,” and when that happens, she will require churches to apply to reopen. Approved churches will then need to display a “badge” at the front door signifying they are approved to open. However, Gov. Mills has no process in place now to begin the approval process and no application for the churches. Even the notion that churches would have to apply to reopen and display a “badge” signifying approval is offensive to the First Amendment.
Gov. Mills has allowed so-called “essential” commercial and non-religious entities that include liquor stores, marijuana dispensaries, warehouse clubs, “big box” and “supercenter” stores to accommodate gatherings of people without threat of criminal sanctions. People may gather in these venues but not in churches. The governor’s orders also allow people to gather in secular or commercial parking lots, but not in church parking lots and listen to the pastor.
Liberty Counsel Founder and Chairman Mat Staver said, “Governor Janet Mills is not above the law. The First Amendment does not have a pandemic pause button and will not sleep through a crisis. Houses of worship have special protections under the First Amendment and cannot be unequally treated or relegated to second class status. This is discriminating against churches and offensive to the First Amendment.”
SOURCE Liberty Counsel
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