AG Hill: Holcomb violated constitution with COVID church closures

Editor’s note: This story has been updated to reflect that the U.S. Supreme Court ruled in the California case in May.

Gov. Eric Holcomb’s restriction on in-person religious gatherings during the COVID-19 pandemic was a violation of the First Amendment, Attorney General Curtis Hill said in a new advisory opinion. His opinion comes despite recent U.S. Supreme Court rulings that have upheld state restrictions on churches imposed in response to the pandemic.

The opinion issued Wednesday, was addressed to Indiana State Rep. Curt Nisly, a Republican from Milford. It posed this question: “Whether the Governor may, using executive authority, place restrictions on religious activities and organizations that do not apply to other comparable activities and businesses.”

“No,” the non-binding opinion holds. “Under the First Amendment, absent a compelling government interest, the Governor may not place restrictions on religious activities and organizations that do not equally apply to comparable activities and organizations, and that, in effect, discriminate against religion.”

Members of the clergy and religious institutions were identified as “essential” in the state’s initial stay-at-home order in March, but Hill’s opinion focuses on the subsequent “Guidance for Places of Worship” issued in April. The guidance limited in-person worship services to 10 people and required that physical locations be closed to worship.

Drive-in services were permitted as long as there was no physical interaction with clergy and cars were kept at least 9 feet apart in parking lots. There was also a “preference” against communion, but if communion was offered, only prepackaged elements were permitted.

Numerous lawsuits were filed as similar restrictions on in-person worship were implemented across the country. U.S. Attorney General William Barr got involved in April, issuing a memo acknowledging the validity of public-health measures but cautioning that such measures should pass strict scrutiny.

The prohibition on in-person worship was lifted May 1, though restrictions were still in place, according to Hill. Specifically, social distancing, sanitation and masks are still required for in-person gatherings.

“The Governor’s Executive Orders … had already deemed churches and religious exercise to be ‘essential,’ and the Guidance did not even attempt neutral treatment of religion compared with other ‘essential businesses and activities,’” Hill wrote. “Accordingly, because the Guidance was not neutral or generally applicable, it could impose a material burden on religious exercise only if narrowly tailored to advance a compelling government interest.

“… Slowing the spread of COVID-19 is, of course, a compelling government interest, but, absent some evidence or explanation as to how religious gatherings pose special problems with spreading COVID-19 that other essential businesses do not, such a broad (albeit compelling) interest could not justify the guidance.”

To support his conclusion, Hill pointed to the six-foot social distancing requirement for in-person gatherings, compared to the requirement that cars at drive-in church services be kept 9 feet apart.

“And if nine-foot vehicle spacing restrictions were necessary to prevent the spread of COVID-19,” the AG continued, “then such restrictions should have been applied to all manner of parking lots, not just those located outside places of worship.”

The parking lot guidance also required that only members of the same household could be in one car. Hill contrasted that with the continuation of public transportation during the pandemic or people “carpool(ing) to pick up beer or food … .” Similarly, he said, the restrictions on communion elements did not equally apply to delivery or curbside food services.

“Perhaps most perplexing of all was the requirement that Churches close their buildings completely. While other essential businesses continued to remain open and conduct limited in-person contact with the public, churches were ordered to close their doors,” Hill wrote. “It would be especially troubling if the Governor ordered church buildings to close merely because he suspected that religious worshippers would be more likely than consumers of other essential services to violated CDC social distancing guidelines. The First Amendment precludes government officials from imposing discriminatory burdens on religious observers based on mere assumptions.”

Hill concluded by saying Holcomb “did not articulate how targeting religious exercise advanced” the cause of curbing the spread of COVID-19.

“Because it subjected religious activities and institutions to additional restrictions than other essential activities and businesses without any apparent justification, the Governor’s Guidance was unlawful as religious discrimination under the First Amendment,” the opinion concluded.

Disputes over COVID-related church closures have reached the United States Supreme Court, which has sided with government-imposed restrictions.

In May, for example, a 5-4 majority of the court – which included Chief Justice John Roberts joining the four liberal justices – rejected a bid from a California church to overturn state limits on attendance at worship services. Justice Brett Kavanaugh penned a dissent for the four conservative justices.

The same 5-4 majority also ruled against a Nevada church in July, declining to strike a 50-person cap on worship services.

Hill’s opinion wasn’t the first he’s issued that took exception to Holcomb’s pandemic executive orders. Hill, who will leave office in January after he lost the Republican Party’s nomination this summer to Todd Rokita, issued an opinion in July saying the governor lacked the authority to enforce a statewide mask mandate.

Rokita, a former congressman, is challenging Democratic former Evansville Mayor Jonathan Weinzapfel in AG race.