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Religious group wins round 1 in legal fight

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A group of 10 churches, including the Elkhorn Baptist Church in Baker City won a preliminary injunction against Gov. Kate Brown's restrictions on religious gatherings.

BAKER CITY — A Baker County circuit judge on Monday granted 10 churches who sued the governor a preliminary injunction, finding Gov. Kate Brown’s restrictions on religious gatherings “null and void’’ because her emergency order due to the coronavirus pandemic had exceeded its 28-day limit.

Circuit Judge Matthew Shirtcliff found the plaintiffs had shown “irreparable harm” from the deprivation of the right to exercise their religions.

“The governor’s orders are not required for public safety when plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship,” he ruled.

He found the churches can take necessary social distancing precautions, just as grocery stores and other essential businesses have done. He also ruled the injunction was in the public’s interest, allowing people the right to freely worship and the ability to restore economic viability.

“This court understands that the current pandemic creates an unprecedented crisis in the state as well as in our country,” Shirtcliff said, speaking from the bench in a videoconference hearing. He said he must protect public health concerns against the constitutional right of freedom of worship.

Attorney Marc Abrams urged the judge to put a hold on his ruling until the state Supreme Court could review it.

The governor’s office will file Monday asking for “rapid review” by the state Supreme Court, Abrams said. The governor will cite the importance of Brown’s emergency restrictions on social gathering due to the “loss of life, spread of the disease,” Abrams said. He also noted that most states in the United States have taken actions similar to that of Brown.

“There’s evidence that this is working and the hardship balance calls at least for the court to stay its order to allow for legal review and in the interest of maintaining the status quo,” he argued.

But the judge denied the request.

Ten churches from across the state asked the court to find the governor’s social distancing order infringed on their religious freedoms.

“If we’re risking our lives to go to church, if we survive, great,” said Salem-based attorney Ray D. Hacke, who had filed the motion. “If we die, then we’re going to heaven. If we want to take that risk, then it’s on us.”

Hacke filed the lawsuit earlier this month on behalf of the nonprofit group Pacific Justice Institute, which takes on religious liberty cases. It’s representing the churches and 21 individuals. The churches are in Baker City, Bend, Camas Valley, Klamath Falls, Lincoln City, Newberg, Portland, Roseburg and Salem.

They so far have respected the governor’s order banning gatherings of more than 25 people and discouraging Oregonians from being around more than 10 people at a time, according to Hacke.

But the churches no longer believe such an order is justified, the suit says.

Brown earlier this month modified the order, allowing social gatherings of up to 25 people with social distancing for counties with state-approved reopening plans. But the churches said that’s not sufficient.

“If a congregation has 250 members, what are they going to do? Hold 10 services? That’s just not realistic,” Hacke said. “It’s an infringement on religious liberty.”

The governor’s office urged the suit be dismissed, arguing that public health is paramount.

“The Executive Orders issued by Governor Brown are not designed to hinder any specific faith, not designed to impede worship any more than any other activity that, by the mere act of gathering in large numbers, puts lives at risk. They are designed to keep Oregonians alive and to stop the spread of COVID-19,” Abrams argued in court filings. “And they have been working. In large part because of the Governor’s Executive Orders, the deaths in Oregon have been tragic, but relatively limited.”

Abrams took issue with Hacke’s quote about parishioners willing to take their own risks.

“But when behavior endangers others, it is not just a matter of individual choice and is, instead, a threat to public health,” Abrams wrote.

Plaintiffs successfully argued that ORS 443.441 limits declared public health emergencies to 14 days, or up to 28 days maximum, and because COVID-19 is a public health crisis, that limitation applied.

But the governor’s attorney argued that Brown declared a state of emergency under a different state law, ORS 401.165, which is not limited to any particular time period and continue indefinitely.

The churches named as plaintiffs in the suit are: Elkhorn Baptist Church in Baker City, Calvary Chapel Newberg, Calvary Chapel Lincoln City, Calvary Chapel Southeast Portland, New Horizon Christian Fellowship in Klamath Falls, Camas Valley Christian Fellowship, Peoples Church in Salem, Prepare The Way religion nonprofit ministry in Bend, Bend Community Church, Covenant Grace Church in Roseburg.

Conservative activist Kevin Mannix, former legislator and gubernatorial candidate, on behalf of the nonprofit group Common Sense Oregon, also filed a motion to intervene in support of the churches’ suit against the governor.

In a similar case brought in California, a federal judge ruled this month that state and local stay-at-home orders were a valid exercise of emergency police powers and didn’t violate a church’s constitutional rights. The judge in that case noted that the U.S. Supreme Court more than 100 years ago upheld the government’s right to exercise police powers to promote public safety during a public health crisis.

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