IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTII CAROLINA
EASTERN DMSION
No. 4:20-CV-81-D
BEREAN BAPTIST CIIlJRCH,
RETURN AMERICA, INC.,
DR. RONNIE BAITY, and
PEOPLE'S BAPTIST CIIlJRCH, INC.,
Plaintiffs,

v.

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_ GOVERNOR ROY A. COOPER, ill,
in his official capacity,
Defendant.

ORDER

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On May 14, 2020, Berean Baptist Church ("Berean"), Return America, Inc. ("Return

America"), Dr. Ronnie Baity ("Dr. Baity"), and People's Baptist Church, Inc. ("People's";
collectively, ''plaintiffs") filed a verified complaint seeking injunctive relieffor the violation oftheir
First Amendment rights [D.E. 1] and requested an emergency temporary restraining order [D.E. 2].
Specifically, plaintiffs contend that Governor Roy Cooper's ("Governor Cooper" or ''the Governor'')
Executive Order 138 concerning COVID-19 and a general requirement that all worship services
involving more than 10 people must be held "outdoors unless impossible" to hold outdoors violates
the Free Exercise Clause ofthe First Amendment. [D.E. 1-6] 11 (emphasis added). As part oftheir

challenge, plaintiffs note that Governor Cooper's Director of Legislative Affairs issued "Guidance
for Religious Services and Mass Gathering Restrictions." That Guidance stated:
In situations where it is not possible to conduct worship services outdoors or through
other accommodations--such as through, for example a series of indoor services of
ten or fewer attendees or through on-line services-the ten-person attendance Hmit
on indoor worship services does not apply. For example, there may be situations

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 where particular religious beliefs dictate that some or all of a religious service must
be held indoors and that more than ten persons must be in attendance.
[D.E. 1-7] 3--4 (emphasis added). They also note that Governor Cooper's Executive Order 138
permits countless non-religious gatherings to take place inside without limiting such gatherings to
10 people and without requiring those attending such gatherings to, in essence, be prepared to prove
under penalty ofcriminal prosecution that it "is impossible" to gather outside. Essentially, plaintiffs
contend that the asE!embly for religious worship provisions in Governor Cooper's Executive Order
138 violate the Free Exercise Clause of the First Amendment by not treating religious entities and
individuals equally when compared to countless non-religious entities and individuals.
On May 15, 2020, the court held a hearing. Solicitor General Ryan Park appeared on behalf

of Governor Cooper and submitted a declaration from Dr. Elizabeth Tilson, the Chief Medical
Officer for the North Carolina Department of Health and Human Services. See [D.E. 17].
There is no pandemic exception to the Constitution ofthe 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.
I.
A.

For purposes of this temporary restraining order only, the court draws the facts largely from
plaintiffs' verified complaint. On March 10, 2020, the Governor responded to COVID-19 with
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 Executive Order No. 116 ("EO 116") by declaring a State of Emergency for North Carolina and
thereafter issuing a series of executive orders attempting to prevent the spread of COVID-19 within
North Carolina. Roy Cooper, in his official capacity as Governor of the State ofNorth Carolina, is
responsible for enacting and enforcing the COVID-19 executive orders at issue in this case and is
sued in his official capacity only.
In their complaint, plaintiffs challenge the Governor's Executive Order Nos. 117, 120, 121,
135, and 138 issued March 14, March 27, March 23, April 23, and May 5, 2020, respectively (''EO
117," "EO 120," "EO 121," "EO 135," "EO 138," and collectively "Orders"), as being
unconstitutional both facially and as applied to plaintiffs, because the orders treat religious
gatherings less favorably than similar non-religious gatherings. According to plaintiffs, the Orders
virtually ban religious assembly, are not narrowly tailored, and do not permit less restrictive means
to achieve the government's interest without burdening plaintiffs' First Amendment rights. See

[D.E. 1-2, 1-3, 1-4, 1-5, 1-6]. According to plaintiffs, the Orders are not neutral laws of general
applicability because they target constitutionally protected activity, significantly burden plaintiffs'
right to freedom of religion and assembly, and establish an orthodox form of religious exercise
approved by the State, all the while providing broad exemptions for many other non-religious
gatherings of more than 10 people.
Plaintiff Berean is a non-profit church incorporated under the laws of North Carolina and
organized exclusively for religious purposes under section 501(c)(3) of the Internal Revenue Code.
Berean is located in Winston Salem, North Carolina.
Plaintiff Return America is a non-profit corporation incorporated under the laws of North
Carolina and organized for religious and educational purposes within the meaning of section
50l(c)(3) of the Internal Revenue Code. Return America is located in Winston Salem, North
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 Carolina.
Berean has been operating in Winston-Salem, North Carolina, since November 1980.
Multiple times every week, for almost 40 years, Berean has assembled its members and attendees
in its church buildings in gatherings ofmore than 10 people to engage in religious worship as a body.
It has been unable to do so since the Governor issued his Orders.

Dr. Baity is the founder and Pastor of Berean, the President of Return America, and serves
as a chaplain for the Winston-Salem Police Department. Berean and its members, including Dr.
Baity, who together make up Berean, believe that a physical assembly in one place on Sunday, for
cl

mid-week services, in revivals, and for other special meetings is a God-commanded part of their
worship and that the failure to assemble violates their religious faith. Church attendance is of such
ecclesiastical importance to Berean that under the Berean' s bylaws, the failure ofa member to attend
at least one regular worship service in two months subjects that member's membership to automatic
termination by Berean.
Return America is a non-profit organization that consists of a network of churches and
individuals whose purpose it is to educate, motivate, and mobilize citizens in a united effort to
promote Judeo-Christian values. Return America regularly conducts rallies, conferences, and other
gatherings with more than 10 people. Return America has been prohibited from doing since the
Governor issued his Orders. Return America has over 130 supporting North Carolina churches and
several hundred individuals within its network, with some 12,000 individuals attending Return
America rallies.
People's is a non-profit church incorporated under the laws ofNorth Carolina and organized
exclusively for religious purposes under section 501(c)(3) of the Internal Revenue Code. People's
is located in Greenville, North Carolina. People's has been operating in Greenville, North Carolina
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 for 58 years. Multiple times every week over those 58 years, People's has assembled its members
and attendees in its church buildings in gatherings of more than 10 people to engage in religious
worship as a body. It has been unable to do so since the Govern.or issued his Orders. People's and
its members believe that a physical assembly in one place on Sunday, for mid-week services, in
revivals, and for other special meetings· is a God-commanded part of their worship and that the
failure to assemble violates their religious faith. Church attendance is of ecclesiastical importance
to People's. Under the People's bylaws, a qualification for membership is being engaged in regular
church attendance. If a member fails to attend for six months, the member may automatically be
placed on the inactive list.
According to plaintiffs, they have peaceably complied with the Orders that have limited their
religious worship gatherings to 10 people or forced them to hold much less acceptable electronic
meetings. They have done so in furtherance of their strong interest in protecting their congregants,
respect for and obedience to authority, and assurances from the Governor that the restrictive
measures imposed by.the Orders would be very temporary. Plaintiffs now challenge the Orders due
to the
disparate, unequal, discriminatory, unfavored, hostile, and most restrictive treatment
of Plaintiffs' religious and other First Amendment gatherings over other, secular,
gatherings; their congregants need comfort from their church after they have been
forced to remain in their homes for weeks and weeks; the ever.;lengthening
infringement by the Orders upon their God-commanded duty to corporately assemble
for worship in their houses ofworship; and their concern over the State's interference
in the very form and method of their most important of their ecclesiastical
functions--religious worship.
Compl. [D.E. 1] ,r 30.

B.
On March 10, 2020, the Governor issued EO 116, declaring a State ofEmergency, as defined

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 inN.C. Gen. Stat.§§ 166A-19.3(6)and 166A-19.3(19)forNorthCarolinabasedonthepublichealth
emergency posed by COVID-19. See [D.E. 1-1] 3. North Carolina remains under the State of
Emergency. See [D.E. 1-6] 1-4.
On March 14, 2020, the Governor issued EO 117 prohibiting for 30 days "mass gatherings"

of "more than 100 people in a single room or single space at the same time, such as an auditorium,
stadium, arena, large conference room, meeting hall, theater, or any other confined indoor or outdoor
space." [D.E. 1-2] 3. EO 117 exempted from the mass gathering prohibition numerous categories
of gatherings, including ''normal operations at airports, bus and train stations, medical facilities,
libraries, shopping malls and centers, or other spaces where more than one hundred (100) persons
are gathered. It also does not include office environments, restaurants, factories, grocery stores or
other retail establishments." Id. EO 117 authorized criminal prosecution of violations of EO 117
as Class 2 misdemeanors. See id
The Governor issued EO 120 on March 23, 2020, to be in effect for 30 days. EO 120 reduced
the maximum number to SO persons who could lawfully gather in a mass gathering and again
excluded from the definition ofmass gathering ''normal operations at airports, bus and train stations,
medical facilities, libraries, shopping malls and centers," as well as "office environments, factories,
grocery stores, and child care facilities." [D.E. 1-3] 4. EO 120 also closed entertainment facilities
and personal care and grooming facilities, and again authorized the crimjnaJ prosecution of
violations. Id.
The Governor issued EO 121 on March 27, 2020, and ordered all individuals in North
Carolina to stay at home and practice social distancing as much as reasonably possible, and permitted
individuals to leave their homes "only for Essential Activities, Essential Governmental operations,
or to participate in or access COVID-19 Essential Business and Operations" as defined in EO 121.
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 [D.E. 1-4] 4. Section 2 ofEO 121 listed 30 "COVID-19 Essential Businesses and Operations." Id.
at 5-9. The first category of EO 121 's list of COVID-19 Essential Business or Operation was
"Businesses that meet Social Distancing Requirements," which had no limit placed on the number
of employees and customers allowed to gather except at the point of sale or purchase. Id at 5--6.
The Governor also included as an essential business or operation:
10. Religious entities. Religious facilities, entities, groups, gatherings, including
funerals. Also, services, counseling, pastoral care, and other activities provided by
religious organizations to the members of their faith community. All of these
functions are subject to the limitations on events or convenings in Section 3 of this
Executive Order.
Id. at 7 (emphasis added). The Governor included "Religious entities"as one of only two categories
ofthe 30 Essential Businesses and Operations that were subject to EO 121 's Section 3 requirements.
Id. The other one was "Funeral Services." Id. at 9.
Section 3 ofEO 121 rescinded the definitions from earlier Orders that had defined ''mass
gatherings" as more than 100 people and then more than SO people. It defined ''mass gathering'' as
"any event or convening that brings together more than ten (10) persons in a single room or single
space at the same time." Id. at 10. It excluded from the IO-person limit ''normal operations at
airports, bus and train stations, medical facilities, libraries, shopping malls and centers" or any
"COVID-19 Essential Business or Operation." Id Section 3 capped funeral services at SO people,
and religious gatherings at 10 people. See id. at 9-10.
On April 23, 2020, the Governor issued EO 135, extending the mass gathering prohibition
ofEO 120 and all of EO 121 until May 8, 2020. See [D.E. 1-5] 3-4.
On May S, 2020, the Governor issued EO 138 in which he began lifting the stay at home

order by permitting individuals to leave their homes b~ginning May 8, 2020, only for "Allowable
Activities" as the Governor defined. [D.E. 1-6] 4. Otherwise, the Governor ordered individuals to
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 continue to stay at home. See id at S. EO 138's allowable activities include "[t]o worship or
exercise First Amendment rights." Id. at 6.
EO 138's definition of ''mass gathering" now excludes "gatherings for ... worship, or
exercise of First Amendment rights," which would appear to exclude gathering for worship from
the 10-person limit in "any other confined indoor or outdoor space" required of a ''mass gathering."
Id. at 12. However, EO 138 then requires gatherings with more than 10 people to ''take place
outdoors unless impossible." Id. (emphasis added).
InEO 138, the Govern.or still considers :funeral services a ''mass gathering," but the Governor
permits up to SO people to gather for a :funeral service. Id. In EO 138, the Govern.or also excluded
from the definition of ''mass gathering'' events in which ''the participants all stay within their cars,
such as at a drive-in movie theater." Id.
On May 11, 2020, Lee Lilley, the Director of Legislative Affairs for the Office of Governor

Cooper, notified North Carolina Senators that the Govern.or's office "has issued guidance to assist
congregants and public officials regarding'' "how religious worship services may be safely
convened." [D.E. 1-7] 2 (Letter from the Office ofthe Govern.or to Senators with attached "EO 138
Phase One -- Guidance for Religious Services and Mass Gathering Restrictions" ("Guidance'')).
According to the Guidance, EO 138 applies to religious services. See id at 3-4. In addition,
"[i]ndoor worship services and weddings are allowed for gatherings of ten people or fewer in the
same confined space." Id. at 4. The Guidance also interprets EO 13 8 to mean that, as a general rule,
religious entities may only assemble with more than 10 people if they meet outdoors. Id. The
Guidance then states that the 10-person indoor attendance limit does not apply if it is ''not possible"
to meet outdoors. Id. The Guidance then gives an example of impossibility to include when

"particular religious beliefs dictate that some or all of a religious service must be held indoors and
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 that more than ten persons must be in attendance." Id.
According to plaintiffs, EO 138 has made the right to gather inside for religious worship
dependent upon the religious beliefs of the gathering participant, not upon the participant's age,
health, or background. Thus, according to plaintiffs, under pain of criminal prosecution, if the
participant does not hold the State's established religious belief or is not prepared to prove
"impossibility," the participant must gather for worship outside when worshiping with more than 10
people. Compl. at ,r 52.
Plaintiffs assert three claims. In count one, plaintiffs contend that the Orders, on their face
or as applied, violate their Free Exercise rights under the First and Fourteenth Amendments. See id.

ft 56--61.

In count two, plaintiffs contend that the Orders, on their face or as applied, violate the

Establishment Clause under the First andFourteenthAmendments. See id. ft 63--65. In count three,
plaintiffs contend that the Orders, on their face or as applied, violate their right to assemble under
the First and Fourteenth Amendments. See id. ft 66--70. Plaintiffs seek declaratory and injunctive
relief.
II.

The court has considered plaintiffs' request for a temporary restraining order under the
governing standard. See.~ Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); Centro
Tq,eyac v. Montgomery Cty., 722 F.3d 184, 188 (4th Cir. 2013) (en bane); Real Truth About
Ohama, Inc. v. FEC, 575 F.3d 342,346 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089
(2010), reissued in relevant nm, 607 F.3d 355 (4th Cir. 2010) (per curiam); U.S. Dq,'tofLaborv.
Wolf Run Mining Co., 452 F.3d 275,281 n.1 (4th Cir. 2006) (substantive standard for temporary
restraining order is same as that for entering a preliminary injunction). Plaintiffs have established
that (1) they are likely to succeed on the merits oftheir claim that the assembly for religious worship
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 provisions in EO 138 violate their rights under the Free Exercise Clause of the First Amendment;
(2) they are likely to suffer irreparable harm absent a temporary restraining order; (3) the balance of
the equities tips in their favor; and (4) a temporary restraining order is in the public interest.
ill.
A.

Plaintiffs have demonstrated a likelihood of success on their claim that the assembly for
religious worship provisions in EO 138 and the Guidance violate their rights under the Free Exercise
Clause of the First Amendment. The First Amendment provides that "Congress shall make no law
respecting an establishment ofreligion, or prohibiting the free exercise thereof." U.S. Const. amend.
I. "[A] law that is neutral and of general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect of burdening a particular religious
practice." ChurchoftheLukumiBabaluAye,Inc. v. Cicy:ofHialealL 508 U.S. 520,531 (1993); see
Trinicy: Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017); Emp't Div.,
De,pt ofHuman Resources of Ore. v. Smith, 494 U.S. 872, 878-89 (1990). ''Neutrality and general
applicability are interrelated, and ... failure to satisfy one requirement is a likely indication that the
other has not been satisfied." Lukumi, 508 U.S. at 531. If a law is not neutral or generally
applicable, it ''must be justified by a compelling governmental interest and must be narrowly tailored
to advance that interest." Id. at 531-32; see Jesus Christ Is The Answer Ministries, Inc. v. Baltimore
~

915 F.3d 256, 265--66 (4th Cir. 2019); Am. Life League, Inc. v. Reno, 47 F.3d 642, 654 (4th

Cir. 1995).
No constitutional right-including the right of free exercise of religion-is absolute. See
Jacobson v. Massachusetts, 197 U.S. 11, 26 (1905) ("But the liberty secured by the Constitution of
the United States to every person within its jurisdiction does not import an absolute right in each
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 person to be, at all times and in all circumstances, wholly freed from restraint."). Individual liberties,
"under the pressure of great dangers," may be reasonably restricted "as the safety of the general
public may demand." Id. a~ 29. A court may review those restrictions if they have ''no real or
substantial relation to those objects, or [are], beyond all question, a plain, palpable invasion ofrights
secured by the fundamental law." Id. at 31. Although 115 years old, Jacobson remains the lodestar
in striking the balance between constitutional rights and public safety. See In re Abbott, 954 F.3d
-,

772, 783 (5th Cir. 2020); Roberts v. Neace,-F.3d-, No. 20-5465, 2020 WL2316679, at *4 (6th
Cir. May 9, 2020); Maryville Baptist Church, Inc. v. Beshear, -F.3d-, 2020 WL 2111316, at *4
(6th Cir. May 2, 2020); see also Kansas v. Hendricks, 521 U.S. 346, 356-57 (1997).
Section 6(A) of EO 138 provides:
Section 6. Mass Gatherings Prohibited.
A. Prohibition. Mass Gatherings are prohibited. "'Mass Gathering" means an event
or convening that brings together more than ten (10) persons at the same time in a
single space, such as an auditorium, stadium, arena, conference room, meeting hall,
or any other confined indoor or outdoor space. This includes parades, fairs, and
festivals.
Mass Gatherings do not include gatherings for health and safety, to look for and
obtain goods and services, for work, for worship, or exercise of First Amendment
rights, or for receiving governmental services. A Mass Gathering does not include
normal operations at airports, bus and train stations or stops, medical facilities,
shopping malls, and shopping centers. However, in these settings, people must follow
the Recommendations to Promote Social Distancing and Reduce Transmission as
much as possible, and they should circulate within the space so that there is no
sustained contact between people.
[D.E. 1-6] 12. -So far so good. Ifyou read just this paragraph it appears that the definition of ''Mass
Gatherings" does not include gatherings ''for worship, or exercise of First Amendment rights." Id.
Thus, it appears plaintiffs can.meet and worship with as many members as they want whether inside
or outside.
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 Not so. Upon close inspection, the protections in section 6(A) are nominal at best. See
Lukumi, 508 U.S. at 534 ("Facial neutrality is not determinative."). Indeed, the assembly for
religious worship provisions in BO 13 8 represent precisely the sort of "subtle departures from
neutrality'' that the Free Exercise Clause is designed to prevent. Gillette v. United States, 401 U.S.
437,452 (1971); see Luk:umi, 508 U.S. at 534. At oral argument, the court asked the Govern.or's
counsel ifEO 13 8 ''means that any religious entity can hold an indoor service at any time of any size
if it wants to, so long as it follows social distancing?" The Govern.or's counsel answered, ''No." The
Govern.or's counsel then discussed section 6(C) in BO 138.
Section 6(C) states: "Because the risk of COVID-19 spread is much greater in an indoor
setting, any gatherings of more than ten (10) people that are allowed under Subsection 6(A) shall
take place outdoors unless impossible." [D.E. 1-6] 12 (emphasis added). The court 1;hen asked, who
decides whether it is "impossible" to worship outside under section 6(C). The Govern.or's counsel
conceded that it would be a sheriffor other local law enforcement officer who would decide whether
the religious entity or individual was correct in deciding whether it was "impossible" to worship
outside.
That's a remarkable answer in light ofthe Free Exercise Clause. See Masterpiece Cakeshop,
LLC v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719, 1723-32 (2018); Sherbert v. Vern.er, 374
U.S. 398,401-410 (1963),abrogatedinpartby:Smith,494 U.S. at882-83; Cantwell v. Connecticut,
310 U.S. 296, 305-311 (1940). A leader of a religious entity or a worshiper, under pain of criminal
prosecution for a Class 2 misdemeanor, has to answer to a sheriff or other local law enforcement
officer whether it is ''impossible" to worship outside. Who could answer that question, "Yes. It is
impossible."? After all, in the overwhelming majority of cases, members of a religious entity would
have gathered to worship from somewhere else. Upon arrival at the worship site, all would be
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 outside for at least a few moments, whether they traveled by public transportation, by automobile,
by bus, or by foot. Sure, it might be hot, cold, rainy, or buggy, but when would it be "impossible"
to worship outside? EO 138 does not answer the question, but the Govern.or's "Guidance" does.
And that answer is even less satisfying.
In the Guidance, the Governor's Director of Legislative Affairs gave an example of what

would qualify to permit a religious organization or group ofworshipers to have more than 10 people
inside to worship. See [D.E. 1-7] 4. The Guidance states: "For example, there may be situations
in which particular religious beliefs dictate that some or all of a religious service must be held
indoors ~d that more than ten persons must be in attendance." Id. (emphasis added).
Again, the question becomes: who decides whether a religious organization or group of
worshipers correctly determined that their religious beliefs dictated the need to have more than 10
people inside to worship? Under EO 138, the answer is a sheriff or another local law enforcement
official. This court has grave concerns about how that answer comports with the Free Exercise
Clause. See Masterpiece Cakeshop, LLC, 138 S. Ct. at 1723-32; Sherb~ 374 U.S. at 401-10;
Cantwell, 310 U.S. at 305-11.
At the hearing, we also discussed what the "impossibility'' provision in section 6(C) meant
for the myriad non-religious entities referenced in EO 138. The Governor's counsel opined that
because it would be "impossible" to move the produce out of a grocery store, grocery stores and
those who shop there are not subject to the ''no-more-than-10-inside-unless-impossible" requirement
in section 6(C). Presumably, that answer would be the same for those who operate or gather and
wait at an airport, bus, or train terminal, a medical facility, a shopping mall, a shopping center, WalMart, Lowes, and countless other businesses of all kinds. If a person or entity is buying or selling

goods or services, the Governor understands EO 138 to mean it is "impossible" to move such goods
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 or services outside. Thus, the ''no-more-than-10-inside-unless-impossible" requirement in section
6(C) does not apply to vast swaths of individuals and businesses. Rather, all such individuals and
businesses must do to comply with section 6(A) of EO 138 is to ensure that people ''follow the
Recommendations to Promote Social Distancing and Reduce Transmissions as much as possible,
and they circulate within the space so that there is no sustained contact between people." [D.E. 1-6]
12.
Not so for religious entities or worshipers. As the Governor's counsel made clear at the
hearing, and as the Guidance makes even more clear, a sheriff or other law enforcement official has
the power to decide whether a religious person or entity has met the ''no-more-than-10-inside-unlessimpossible" requirement in section 6(C). If the answer is wrong, the religious person or entity faces
prosecution for a Class 2 misdemeanor. Id. at 15.
These glaring inconsistencies between the treatment ofreligious entities and individuals and
non-religious entities and individuals take EO 138 outside the "safe harbor for generally applicable
laws." Roberts, 2020 WL 2316679, at *3. But wait, there's more inconsistency.
In section 6(0), the Governor discusses "Funerals." [D.E. 1-6] 12. Section 6(0) states:

''Notwithstanding the above, and in an effort to promote human dignity and limit suffering, Mass
Gatherings at funerals are permitted for up to fifty (50) people. People meeting at a funeral should
observe the Recommendations to Provide Social Distancing and Reduce Transmission to the extent
possible." Id.
At oral argument, the Governor's counsel conceded that there is no public health rationale
for allowing 50 people to gather inside at a funeral, but to limit an indoor religious worship service
to no more than 10 people. Some funerals are religious. Some funerals are not religious. The

Governor's counsel could not explain why the Governor trusts those who run funerals to have 50
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 people inside to attend the funeral, but only trusts religious entities and individuals to have 10 people
inside to worship.
Plaintiffs have demonstrated that they are likely to succeed on the merits because the
~sembly for religious worship provisions in BO 138 and the Guidance place a burden on the
pla.iptiffs' free exercise of religion. See,~ Roberts, 2020 WL2316679, at *2-5. Plaintiffs ''just
want to be treated equally." Id. at *3. "They don't seek to insulate themselves from [North
Carolina's] general public health guidelines." Id. "They simply wish to incorporate them into their
worship services" indoors. Id. "They are willing to follow any hygiene requirements." Id. ''The
Governor has offered no good reason for refusing to trust the congregants who promise to use care
in worship in just the same way he trusts accountants, lawyers, and laundromat workers to do the
same." Id. "How can the same person be trusted to comply with social-distancing and other health
guidelines in secular settings but not be trusted to do the same in religious settings?" Id. Eleven
men and women can stand side by side working indoors Monday through Friday at a hospital, at a
plant, or at a package distribution center and be trusted to follow social distancing and hygiene
guidance, but those same eleven men and women cannot be trusted to do the same when they
worship inside together on Saturday or Sunday. "The distinction defies explanation, or at least the
Governor has not provided one." Id.
This court does not doubt that the Governor is acting in good faith to lessen the spread of
COVID-19 and to protect North Carolinians. "But restrictions inexplicably applied to one group and
exempted from another do little to further these goals and do much to burden religious freedom."
Id. at *4. Moreover, it does not ''make a difference that faith-based bigotry did not motivate" BO
138. Id The Constitution makes the bar higher than that ''The constitutional benchmark is
governmental neutrality. not governmental avoidance of bigotry." Id. (emphasis added). "A law is
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 not neutral and generally applicable unless there is neutrality between religion and non-religion."
Id. (quotation omitted). "And a law can reveal a lack of neutrality by protecting secular activities
more than comparable religious ones." Id. Importantly, "[a]ll laws are selective to some extent, but
categories of selection are of paramount concern when a law has the incidental effect of burdening
religious practice. The Free Exercise Clause protects religious observers against unequal treatment"
Lukumi, S08 U.S. at S42 (quotation and alteration omitted).
The assembly for religious worship provisions inEO 138 starkly illustrate the extent to which
religious entities and individuals are not subject to a neutral or generally applicable law. The record,
at this admittedly early stage of the case, reveals that the Govern.or appears to trust citizens to
perform non-religious activities indoors (such as shopping or working or selling merchandise) but
does not trust them to do the same when they worship indoors together. Cf. id. at S43. "The
principle that government, in pursuit of legitimate interests, cannot in a selective manner impose
burdens only on conduct motivated by religious belief is essential to the protection of the rights
guaranteed by the Free Exercise Clause." Id Notably, 1S other Govern.ors trusted the people oftheir
states and exempted religious gatherings from any attendance limitations during this pandemic. 1 The
Govern.or has failed to cite any peer-reviewed study showing that religious interactions in those 1S
states have accelerated the spread of COVID-19 in any manner distinguishable from non-religious
interactions. Likewise, common sense suggests that religious leaders and worshipers (whether inside
or outside North Carolina) have every incentive to behave safely and responsibly whether working

1

These fifteen states are Pennsylvania, West Virginia, Ohio, Michigan, North Dakota, South
Dakota, Utah, Colorado, Arizona, Texas, Arkansas, Tennessee, South Carolina, Georgia, and
Florida. See [D.E. 3] 12 n.2; Virginia Villa, Most States Have Religious Exemptions to COVID-19
Social Distancing Rules, Pew Research Center (April 27, 2020),
https://www.pewresearch.org/fact-tank/2020/04/27/most-states-have-religious-exemptions-to-co
vid-19-social-distancing-rules/
16

Case 4:20-cv-00081-D Document 18 Filed 05/16/20 Page 16 of 22

 indoors, shopping indoors, or worshiping indoors. The Governor cannot treat religious worship as
a world apart from non-religious activities with no good, or more importantly, constitutional,
explanation. Accordingly, as in Roberts, the assembly for religious worship provisions in BO 138
must satisfy strict scrutiny and narrow tailoring. See Roberts, 2020 WL 2316679, at *4.
As for strict scrutiny and narrow tailoring, no one contests that the assembly for religious

worship provisions in BO 138 "burden sincere faith practice." Id. Similarly, no one contests the
Governor's compelling interest in seeking to prevent the spread of COVID-19. Thus, the question
becomes whether the assembly for religious worship provisions in BO 138 amount to the "least
restrictive means" of serving that compelling interest. Id. They do not Plaintiffs have pledged to
adhere to "all recommended COVID-19 social distancing and personal hygiene safety guidelines" .
in exercising their free exercise rights. [D.B. 3] 3. They simply want the Governor to afford them
the same treatment as they and their fellow non-religious citizens receive when they work at a plant,
clean an office, ride a bus, shop at a store, or mourn someone they love at a funeral. See Lukumi,
508 U.S. at 546 ("The proffered objectives are not pursued with respect to analogous non-religious
conduct, and those interests could be achieved by narrower ordinances that burdened religion to a
far lesser degree."); Roberts, 2020 WL 2316679, at *3-4.
The court recognizes that under Jacobson, the state has significant power to legislate in the
public interest during public health emergencies. See Jacobson, 197 U.S. at 29--30. The court
acknowledges that the Governor's interest in protecting the public during a public health emergency
is both compelling and sincere. The court also understands that "[t]he right to practice religion freely
does not include ,liberty to expose the community ... to communicable disease or the latter to ill
health or death." Prince v. Massachusetts, 321 U.S. 158, 166--67 (1944). Moreover, it is not the
ambit ofthe judiciary to ''usurp the functions of another branch of government." Jacobson, 197 U.S.
17
Case 4:20-cv-00081-D Document 18 Filed 05/16/20 Page 17 of 22

 at 28. Nevertheless, in Jacobson, the Court recognized that such a power is not absolute and that "an
acknowledged power ofa local community to protecti~elfagainstanepidemic threatening the safety
of all might be exercised ... in such an arbitrary, unreasonable manner, or might go so far beyond
what was reasonably required for the safety of the public, as to authorize or compel the courts to
interfere for the protection of such persons." Id. In this case, the assembly for religious worship
provisions in EO 138 do just that. And, as the Sixth Circuit recently noted, "[w]hile the law may
take periodic naps during a pandemic, we will not let it sleep through one." Roberts, 2020 WL
2316679, at *4.
In effect, the assembly for religious worship provisions in EO 138 place worshipers between

Scylla and Charybdis, forcing them to choose between obeying their faith or risking criminal
prosecution for a Class 2 misdemeanor. See EO 138 [D.E. 1-6] 15; N.C. Gen. Stat.§§ 166A19.19.30(d), 14-288.20A; Braunfeld v. Bromi, 366 U.S. 599, 605 (1961 ). The Free Exercise Clause
~

of the United States Constitution affords them protection from that choice. The assembly for
religious worship provisions in EO 138 are not narrowly tailored to accomplish the compelling
interest in protecting public health. Accordingly, plaintiffs have demonstrated they are likely to
succeed on the merits of their Free Exercise Claim. See, e.g.• Roberts, 2020 WL 2316679, at *4-5.2

B.
Plaintiffs have demonstrated they would suffer an irreparable injury if the assembly for
religious worship provisions in EO 138 are enforced. ''The loss of First Amendment freed9ms, for
evenmjnjma1 periods of time, unquestionably constitutes irreparable injury." Elrod v. Bums, 427
U.S. 347, 373 (1976); see Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir.1978) (''Violations of

2

At this stage ofthe case, the court declines to address plaintiffs' Establishment Clause claim
or their Freedom of Assembly claim.
18
Case 4:20-cv-00081-D Document 18 Filed 05/16/20 Page 18 of 22

 first amendment rights constitute per se irreparable injury."). Moreover, that EO 138 may expire on
Friday, May 22, 2020 at 5 PM, offers no comfort to plaintiffs. See [D.E. 1-7] 15. With each passing
day, the harm from depriving plaintiffs of their free exercise rights only increases. Accordingly,
enforcing the assembly for religious worship provisions in EO 138 constitutes irreparable injury.
See, e.g., Stuart Circle Parish v. Bd. of Zoning Appeals of City of Richmond, 946 F. Supp. 1225,
1235 (E.D. Va. 1996).
The court also must balance the equities before granting a temporary restraining order. Here,
the temporary restraining order concerns a portion of an executive order of the Govern.or, and
necessarily implicates the public interest. The public has a compelling interest in preventing the
spread of COVID-19. Lives are at risk, particularly among the elderly and those with pre-existing
conditions such as obesity, diabetes, hypertension, and lung disease. But the instinct for self-survival
is strong. The court trusts worshipers and their leaders to look after one another and society while
exercising their free exercise rights just as they and their fellow citizens (whether religious or not)
do when engaged in non-religious activities. Plaintiffs have pledged to practice social distancing and
other public health guidelines, just like others under EO 13 8. Accordingly, the equities tip in favor
of granting a temporary restraining order.
As for the public interest, it favors a temporary restraining order. After all, "[t]reatment of

similarly situated entities in comparable ways serves public health interests at the same time it
preserves a bedrock free-exercise guarantee." Roberts, 2020 WL 2316679, at • 5.

C.
As for the scope of the temporary restraining order, district courts have ''broad discretion

when fashioning injunctive relief:" subject to certain limits. Ostergren v. Cuccinelli, 615 F.3d 263,
288 (4th Cir. 2010). "Once a constitutional violation is found, a federal court is required to tailor
19
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 the scope of the remedy to fit the nature and extent of the constitutional violation." Dayton Bd. of
Educ. v. Brinkman, 433 U.S. 406, 420 (1977) (quotation omitted); see Ostergren, 615 F.3d at
288-89. Accordingly, the scope of the injunction is not dictated ''by the geographical extent of the
plaintiff class." Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Rather, the injunction must be
"carefully addressed to the circumstances ofthe case." Va. Soc'y for Human Life v. FEC, 263 F.3d
379, 393 (4th Cir. 2001), overruled on other grounds by The Real Truth About Abortion, Inc. v.
F.E.C., 681 F.3d544 (4th Cir. 2012); seePBMProds., LLC v. Mead Johnson& Co., 639 F.3d 111,
128 (4th Cir. 2011); Hayes v. N. State Law Enf't Officers Ass'n, 10 F.3d 207, 217 (4th Cir. 1993).
Additionally, "injunctive relief should be no more burdensome to the defendant than necessary to
provide complete relief to the plaintiffs." Califano, 442 U.S. at 702.
The court exercises its discretion to enjoin enforcement ofthe assembly for religious worship
provisions in EO 138. See Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, -F. Supp.
3d-, 2020 WL2305307, at *6 (E.D. Ky. May 8, 2020); see also Rodgers v. Bryant, 942 F.3d451,
457--60 (8th Cir. 2019); cf. Home v. Flores, 557 U.S. 433, 470-72 (2009). At the hearing, plaintiffs
asked the court to issue a statewide injunction, and the Governor's counsel confirmed that the
assembly for religious worship provisions in EO 138 apply to all who assemble for religious worship
throughout North Carolina. Moreover, the assembly forreligious worship provisions in EO 138, by
their terms, prohibit not just Berean Baptist or People's Baptist from holding indoor worship
activities with more than ten people, but necessarily prohibit all worshipers in North Carolina from
such worship. Stated differently, the scope ofthe free exercise violation caused by the assembly for
religious worship provisions in EO 138 involves every religious activity in North Carolina where
more than lOpeople gather indoors to worship. See Brinkman, 433 U.S. at420; Ostergren, 615 F.3d

20
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 at 288-89. Accordingly, the court issues a statewide injunction.3
IV.

In s~ the court GRANTS plaintiffs' emergency motion for a temporary restraining order
[D.E. 2]. Defendant, any of his agents, employees, and state or local law enforcement officers are
ENJOINED from taking any enforcement action against plaintiffs or any other worshipers pmsuant
to the assembly for religious worship provisions in EO 138. As set forth in section 6(0) ofEO 138,
any person or group of people gathering to worship "should observe the Recommendations to
Promote Social Distancing and Reduce Transmissions to the extent practicable." [D.E. 1-6] 12.
This order shall remain in place for no longer than 14 days. See Fed. R Civ. P. 65(b)(2). No bond
is required.
The court SCHEDULES a hearing on plaintiffs' motion for a preUmimuy injunction on
·Friday, May 29, 2020, at 11 :00 a.~. in courtroom one of the Terry Sanford Federal Building, 310

3

At the hearing, the Governor's counsel mentioned Ex parte Young. 209 U.S. 123 (1908).
In Ex parte Young, the Supreme Court held that a party may seek ''prospective, injunctive relief
against a state officer to prevent ongoing violations of federal law'' if certain requirements are met.
McBurneyv. Cuccinelli, 616F.3d393, 399 (4th.Cir. 2010); seeExparte Young,209U.S. at 159--60.
Specifically, a "special relation" must exist between the state officer sued and the regulation at issue,
and the officer has either acted or threatened to act pmsuant to the regulation. McBurney, 616 F.3d
at 399; see Ex parte Young. 209 U.S. at 155-57; Waste Mgmt. Holdingi:;. Inc. v. Gilmore, 252 F.3d
316, 331 (4th Cir. 2001). A "special relation" exists if the officer has ''proximizy to and
responsibilizy for the challenged state action." S.C. Wildlife Fed'n v. Limehouse, 549 F.3d 324, 333
(4th Cir. 2008) (emphasis in original). In contrast, a state officer's "[g]eneral authority to enforce
the laws ofthe state" is not a "special relation." Gilmore, 252 F.3d at 331; see Limehouse, 549 F.3d
at 333.
Obviously, the Governor issued EO 138, and his office issued the "Guidance for Religious
Services and Mass Gathering Restrictions." See [D.E. 1-6, 1-7]. The court need not delve further
into Ex parte Young at this time. As discussed, plaintiffs _demonstrated that they are likely to
succeed on the merits of the Free Exercise claim, and Ex parte Young does nothing to disturb the
analysis. Moreover, to the extent that the plaintiffs did not plead the proper defendants under Ex
parte Young. plaintiffs promptly may amend their complaint as ofright to add defendants. See Fed.
R Civ. P. 15. At the appropriate time and with the benefit of briefing and a more fully developed
record, the court may again address the issue.
21
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 New Bern Avenue, Raleigh, North Carolina Plaintiffs' brief in support of their motion for a
preHminary injunction is due on Thursday, May 21, 2020. Defendant's response is due on Tuesday,
May 26, 2020. Plaintiffs' reply is due on Wednesday, May 27, 2020. IfEO 138 expires, the parties
shall promptly notify the court.
SO ORDERED. This .lfoday of May 2020, at

2. ; rS:: p . N · .

J~S C. DEVER III

bviu

United States District Judge

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