By Rev. Mark Creech
Christian Action League
May 29, 2020
A pastor in Daytona Beach, Florida, had a great idea. In a bulletin, he ran a checklist; across the top were the words, “I cannot attend church services because…” And then… “Please check.” The following were some reasons that a person could check:
- Too Busy
- Must go to the movies
- Pleasure trip
- Company coming
- Have to go fishing
- Radio and TV programs
- Need to rest
Finally, there was this instruction across the bottom: “Please tear off and mail to God.”
There have always been various reasons people give for not going to church on Sunday, but few Americans would have ever thought the excuse might be made that the government had practically shut-down the churches. Yet it happened right here in North Carolina.
Ron Baity, president of Return America, was recently a leading plaintiff in a lawsuit that contended Gov. Roy Cooper’s Executive Order 138, was a violation of the Free Exercise Clause of the First Amendment. Cooper issued the order as a part of several measures to prevent the spread of COVID 19. Baity and the other plaintiffs in the case (Berean Baptist Church, Return America, and People’s Baptist Church) prevailed in court.
The presiding Judge, U.S District Judge, James C. Dever III, ruled:
“There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment. Plaintiffs have demonstrated that they are likely to succeed on the merits of their Free Exercise claim concerning the assembly for religious worship provisions in Executive Order 138, that they will suffer irreparable harm absent a temporary restraining order, that the equities tip in their favor, and that a temporary restraining order is in the public interest. Thus, having considered the entire record and governing law, the court grants plaintiffs’ motion for a temporary restraining order.”
When Judge Dever handed down his decision on Saturday, May 16th, to grant the requested restraining order and allow churches to open as fully as they might choose during the pandemic, a date was also set to hear the case two weeks later on May 29th. But before the two weeks passed, the Governor gave in to everything Baity and the other plaintiffs were requesting, and, therefore, the court case was no longer necessary and dismissed.
Today, despite the coronavirus crisis, there are no restrictions on church assemblies in the Tar Heel state. Churches may reopen their doors freely, but are urged to follow health protocols.
Read Related Story: Federal Judge Grants Restraining Order Blocking Gov. Cooper’s Unconstitutional Limits on Indoor Church Gatherings
Baity told the Christian Action League via a telephone conversation this week what led up to the lawsuit, and what happened that momentous day the case for the restraining order was considered. The following is his account.
Baity said he had been watching with concern the Governor’s executive orders and the way that they applied to churches. They had started at a limit of 100 worshipers, then 50, and finally 10.
“Executive Order 138 said that not only was the number of worshippers limited to 10 people but that the government would regulate church attendance up to the first or second week of July,” said Baity. “When that happened, we knew we had to do something because we had a first amendment right to open our church doors. So, I brought our Board together. We prayed about it and decided that we didn’t have any choice. We have to pursue a lawsuit, which we did.”
Their attorney, David Gibbs, Jr. of the Christian Law Association, met with Baity and the other plaintiffs in Raleigh, on Thursday, May 14th, and announced they had filed the suit at a press conference and rally at the state’s Legislative Building. That same evening around 10:30, the office of Judge Dever contacted Gibbs to inform him and his clients that the hearing was for the very next day, Friday afternoon at 1:00.
Read Related Story: ‘Return America’ Rally and Press Conference Highlights Religious Liberty Lawsuit
Baity said that Gibbs told him that one of two things was about to happen: “We’ve either messed-up big time or the Judge believes we need relief.”
Friday afternoon, they walked into court, Baity said.
“The Judge came in and allowed our attorney [David Gibbs, Jr] to speak first,” Baity explained. “Our attorney began his arguments about the church’s First Amendment rights, and within only five to seven minutes of his arguments, the Judge interrupted. He then turned to the state’s attorney, and for approximately 45 minutes, grilled him about why certain things had been put in place.”
Among his many concerns were…
Why is it safer for fifty people to be at a funeral home, which the Governor’s executive order allowed, but it wasn’t safe for more than ten people to be in church? The Judge also wanted to know why the owners of a funeral home could be trusted more than a pastor or church administration to keep people safe.
The state’s attorney had no answer and acknowledged that he had no answer for the Judge’s queries.
Judge Dever then named 15 states, which had allowed their churches to remain open during the pandemic. He followed up by asking the state’s attorney, do you have any statistics which reveal that in these 15 states the infection rates for COVID 19 have consequently increased because the churches are open?
The state’s attorney responded in the negative.
Dever further asked whether death rates from COVID 19 increased in states where churches were open.
The state’s attorney again said no.
On another occasion, Judge Dever posed a hypothetical to the state’s attorney, saying, What if you have 11 people working at a UPS packing station, rubbing shoulders, so to speak, for an eight to ten-hour working period. What makes that safer than 11 people walking into a church for a worship service?
Still, no answer could be sufficiently provided by the state’s attorney.
At another point in the case, the Judge noted Gov. Cooper’s guidelines, which required attendees to meet outside of the church unless their faith stipulated that more than ten people must be inside to carry on the worship services. Dever wanted to know what kind of beliefs worshipers would have to have to warrant going into their church sanctuaries. Who makes this decision as to whether that belief system is satisfactory enough to go inside the building? He asked.
This time, the state’s attorney provided an alarming answer, saying this responsibility would fall to local law enforcement officials.
“When he said that, I could see by the Judge’s countenance that this would not work,” said Baity. “In his decision, he alluded to that, and he thought it very unfavorable that law enforcement would be allowed to come in and say to the church, ‘here is where you worship – here is when you worship – here is how you worship’ – and he said that was totally outside the context of the First Amendment.”
At the end of the hearing, Baity said the Judge seemed to rise to leave but then sat back down to ask a final question of Gibbs. He asked Gibbs if his clients were pleading for the restraining order only on behalf of Berean Baptist Church and People’s Baptist Church or was the plea for all the churches in the state. Gibbs replied the request was for all of the churches in North Carolina.
Baity said that as he sat through the trial, he was feeling good about its direction and probable outcome. He said:
“We went out of there feeling good because of the questions asked. I’m sitting there in that courtroom saying to myself how wonderful it is to live in the land of the free and the home of the brave – to have access to the judiciary – to have a Judge who knows the law – who knows the Constitution – who knows about the First Amendment and who would rule entirely on our First Amendment rights.
“The Lord gave us a great victory. And this is something that we have been careful to say. We were instruments in his hand, but ultimately it was the Lord that gave the victory. It was a tremendous victory for the churches.”
Indeed it was a great victory for all the churches in North Carolina.
So the next time you’re tempted to make excuses for not going to church, it might be wise to consider Jesus’ Parable of the Talents (Matthew 25:24-30), which mainly teaches that a talent unused, opportunities neglected and unappreciated, are subject to be lost and never regained. You might want to ask yourself further if you appreciate the privilege and freedom of church attendance as you should. Moreover, you should ask yourself if your excuses for not going to church will survive God’s scrutiny at his bar of judgment on the last day.
Jesus said, “Man does not live by bread alone, but by every word that proceeds from the mouth of God” (Matthew 4:4).
Worship, not just private or personal worship but also corporate worship, is essential as bread.