Religious-Freedom Challenges to Northam’s Executive Orders

Slate Mills Baptist Church, one of the three churches suing Governor Northam. Credit: John Bowman, Flickr

by Emilio Jaksetic

Three churches in Virginia are suing Governor Northam over restrictions in his latest pandemic-related executive order, claiming their rights to religious freedom are being infringed. (See The Virginia Star article here.) The cases raise questions about Northam’s authority to limit, restrict or otherwise regulate religious activities in response to the pandemic.

In Executive Order 72 (December 10, 2020), Northam claims authority under

  1. Virginia Constitution, Article V;
  2. Virginia Code, Sections 32.1-13; 32.1-20; 35.1-10; 44.146.17; and
  3. any other applicable law.

A governor has authority by virtue of Article V of the Virginia Constitution, which details his primary responsibility to execute enacted laws. An executive order is not an originating source of authority, merely an instrument to execute or carry out authority that has been granted by the Virginia Constitution or enacted statutes. A governor cannot create new power and authority by merely issuing an executive order. Furthermore, a governor’s claims of authority in an executive order are not self-authenticating and can be legally challenged.
See, e.g., Howell v. McAuliffe (VA Supreme Court, July 22, 2016) (Supreme Court decision upholding legal challenge to Governor McAuliffe’s executive order removing political disabilities from approximately 206,000 Virginians convicted of a felony. So, Northam’s claims of authority in Executive Order 72 can be evaluated to see if they are legally supportable.

First, Article V of the Virginia Constitution sets forth the authority of a Virginia governor. Significantly, nothing in Article V indicates or suggests that a governor can: (1) act without regard to relevant provisions of the Virginia Constitution; (2) suspend application of provisions of the Virginia Constitution; or (3) limit, restrict, or set conditions on the exercise of rights protected by the Virginia Constitution. Furthermore, a  governor has no general or inherent authority to suspend any law or the execution of any law. (See Virginia Constitution, Article I, Section 7.)

The free exercise of religion is protected by Virginia Constitution, Article I, Section 16. Nothing in that constitutional provision authorizes a governor to limit, restrict, or dictate how Virginians choose to exercise their religion freedom.

Second, Northam’s invocation of four provisions of the Virginia Code does not give him any authority to limit, restrict, or dictate to Virginians how they choose to exercise their religious freedom. Any law enacted by the General Assembly must be interpreted and applied in a manner that does not interfere with the Virginians’ exercise of rights protected by the Virginia Constitution.

Third, Northam’s invocation of “any other applicable law” adds nothing meaningful to his claim of authority. If there is any “other applicable law,” then there is no good reason for Northam to not cite it explicitly so that all Virginians can know just what is the purported legal basis for his claim of authority. Under the rule of law, an official cannot simply claim to have unspecified, unidentified legal authority and leave the people of Virginia in the dark as to what particular laws supposedly justify the official’s actions.

With respect to the challenges raised by the churches, Northam cannot interpret and apply his claims of authority without regard to the provisions of Virginia Code, Section 57.2-02 (“Religious freedom preserved; definitions; applicability; construction; remedies”). Of particular importance is Subsection B:

No government entity shall substantially burden a person’s free exercise of religion even if the burden results from a rule of general applicability unless it demonstrates that application of the burden to a person is (i) essential to further a compelling governmental interest and (ii) the least restrictive means of furthering that compelling governmental interest.

According to Subsection A of the statute, “‘Substantially burden’ means to inhibit or curtail religiously motivated practice.” That definition makes clear the free exercise of religion is not limited to religious belief, but includes religiously motivated practice.

The COVID-19 pandemic provides a compelling governmental interest that supports issuance of pertinent executive orders. But, given the relevant provisions of the Virginia Constitution and Virginia Code, Section 57.2-02, Northam does not have unfettered authority to regulate religious practice in Virginia. Northam’s executive orders cannot disfavor or burden religious practice, and must use the least restrictive means available to further the government’s legitimate interest in dealing with the pandemic.

Northam can insist that people engaging in religious practice comply with generally applicable public health measures on equal terms as people engaged in secular activities. But, Northam cannot impose greater burdens on people engaged in religious practice, nor can he micro-manage how people choose to engage in their religious practice within the limits of generally applicable public health measures.

Emilio Jaksetic, a retired lawyer, is a Republican in Fairfax County.

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28 responses to “Religious-Freedom Challenges to Northam’s Executive Orders

  1. I think that is a legally correct interpretation of the governor’s powers in restricting church activity. He has no authority to shut down services.
    Next questions, why are churches holding services in the middle of a pandemic? Are their members’ souls in need of immediate salvation? Is their any responsibility on the pastor if anyone dies from this ? Does loss of income have anything to do with these decisions?

    • “…why are churches holding services in the middle of a pandemic?”

      I’ve studied religion and religious practices. I could easily list more than one thousand such questions about why certain religions require or forbid various things. You completely miss the point of religion, and religious freedom.

      Individual religious beliefs and worship isn’t about what makes sense to someone else. If that were the case, there would be no need to enshrine the free exercise of religion in the Virginia Constitution and the U.S. Constitution.

      Have Virginians lost their understanding of the importance of religions freedom? If so, this is truly a sad day for liberty in America.

      “The Valentine First Freedom Center is located on the same corner where Virginia’s General Assembly met in secret during the American Revolution. Thomas Jefferson drafted the Virginia Statute for Religious Freedom in 1777. Enacted in 1786, this revolutionary document paved the way for the first Amendment to the U.S. Constitution and continues to impact how Virginians and the nation view the free exercise of religion.”

      https://thevalentine.org/exhibition/first-freedom-center/

  2. why is Wal-Mart open? Target? Lowes? Michaels? the ABC stores?

    • How long, in minutes, do you spend singing next to a fellow ABC store shopper? I was going to ask that of Wal-Mart, but that’s a loaded question there.

      • At least 10 minutes per visit. I start howling the first verse of “Good Old Mountain Dew” as I walk though the front door. It never fails to attract attention – especially when I have my banjo with me…

        😉

        • I have my mother’s old glass washboard and a clay jug. How ’bout this Sunday 12 noon, after church, at the ABC Store by the Food Lion for a duet?

        • Little known fact … Mountain Dew was invented in Tennessee in 1940. The rights to the formula were purchased by the Tip Corporation of Marion, Virginia. A Tip employee, William H. “Bill” Jones perfected the formula giving us what we call Mountain Dew today. That was in 1961. By 1964 the Tip Corporation sold the brand and production rights to Pepsi.

          I love the stuff. Still remember The Simpsons episode where Homer is buying food from a street cart and wants a drink. All they had was Mountain Dew and Crab Juice. Needless to say, Homer chose the Crab Juice.

          Mountain Dew – an original Virginia drink. Sort of. Kind of like Cherry Smash.

          • Did the original formula of Mountain Dew have “brominated vegetable oil” like the current version?

          • Yes. Tennessee. Near Oak Ridge. That fluorescent green glow when exposed to sunlight is all you need to know. Its nick, “nuclear waste” while the result of an accidental spill, is no accident.

            Drink Big Red instead.

      • So C-19 only spews forth from your mouth AFTER the first 10-30 minutes of talking/breathing/humming? Not in the first 10 minutes? I haven’t seen that report. Or do masks not work after 10 minutes? Or do masks not keep your breath from emanating if coming out of your mouth forcefully?

        • Actually, 10 minutes is how long it takes (for me) to sing the entire song – including the two banjo “break-downs”, of course. It’s only about 6:42 without the instrumental parts…

          Oh, and I always wear a mask – mostly to hide my identity, but these days it kills two birds with one stone…

        • Well, if you’re sick, you shouldn’t be in even an ABC Store. But please, do go to church.

          It’s your masked time of exposure, yes.

  3. Wahoo- Your questions are banal in the extreme. Hint. Many are suffering terribly, and many are dying, often alone. It’s a plague, pain and despair everywhere. Your Lighting the Lawn is amusement. A fraud, it don’t work.

    • While a strict atheist, I am not unsympathetic to the needs of the soul for those who do believe. But it cannot be business as usual, i.e., Sunday service at 9 and 11, in a pandemic with airborne spread.

      So, ol’ Pastor Pocketpick needs to be inventive; outdoor service, stay in the car, under the trees and spread out. Or maybe he’s going have to work overtime with Friday, Staurday AND Sunday services.

      Whenever two or more of you are gathered…. so two is a minimum. 20 in the church for a 10 minute sermon ever 1/2 hour for 8 hours… 320. Works for me.

  4. Most churches I know of are limiting seating, requiring masks, and the congregation doesn’t sing (there might be a praise chorus or a few choir members standing 6 feet apart and singing), so a church service is no more dangerous than eating at a restaurant. Pastors don’t want their flock catching the virus. Zoom or Facebook is a poor substitute for in-person worship.

    • THAT service is no more risky than eating at a restaurant, so let that be the mandate. But you do realize that there are ministers who find that unacceptable, right? Mo’ money, mo’ money, mo’ money.

    • I’m not a religious person, but I am appalled at the flagrant hypocrisy that too many people show by (1) deploring the actions of some religious people who take risks, but (2) staying quiet in the face of multiple instances of COVID-19 restriction violations by Democratic public officials, various media people, and people engaged in politically correct demonstrations.

      Risk of contagion is politically and ideologically neutral. Sadly, hypocrisy is an age-old human failing. And selective moral indignation about the actions of people and groups that are disfavored or disliked is all-too-common.

  5. James Wyatt Whitehead V

    Slate Mills. I have been to that church. Old school baptists with a long and storied history. The earliest members enlisted in the Culpeper Minutemen back in the Revolution. Not surprised a bit to see them challenge “His Excellency”.

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