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
- Virginia Constitution, Article V;
- Virginia Code, Sections 32.1-13; 32.1-20; 35.1-10; 44.146.17; and
- 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.