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Attorneys for Gov. Janet Mills on Friday said that her prohibition on in-person worship services do not violate the Constitution in light of the current health crisis as an Orrington church has claimed in a federal lawsuit filed Tuesday.
“The order does not target religion or houses of worship,” the response to a motion for a temporary restraining order said. “Rather, it applies to all manner of gatherings, including sporting events, concerts, conventions, fundraisers, parades, fairs and festivals. While the plaintiff claims it should be treated like retail stores, public health officials have determined that, for many reasons, religious services pose a greater risk of infection than the activities that are currently allowed.”
Calvary Chapel and its pastor, Ken Graves, sued the governor in U.S. District Court in Bangor. The lawsuit alleges that Mills’ order violates the freedom of religion and assembly clauses of the First Amendment and other laws designed to protect houses of worship. It seeks a temporary restraining order that would allow Calvary Chapel in-person services beginning Sunday and a permanent injunction to allow all congregations to worship as they did before the shutdown orders were imposed.
Deputy Attorney General Christopher Taub said that in other states churches have linked to significant outbreaks of the COVID-19 virus.
He also said the churches had alternatives to in-person worship that include drive-in services and live streaming over the internet.
“In light of all this, the plaintiff is not likely to prevail on the merits,” Taub said. “Moreover, the public interest … warrant allowing the governor, guided by public health officials, to continue to decide how to best protect Maine residents while balancing other relevant considerations.”
In addition to the answer, Taub also filed an affidavit from Dr. Nirav Shah, head of the Maine Center for Disease Control and Protection. Shah said that given the nature of worship services, the virus could be more easily spread than in a supermarket where personal contact is fleeting and at a distance.
“Worship services often involve singing, community prayers and contact such as hand shaking or food or drink sharing that could pose a public health risk,” Shah said. “Additionally, such gatherings may be held in spaces that are small and do not provide adequate ventilation.”
Shah said that a recent outbreak in another state had been linked to a choir practice.
Graves originally announced that the church would hold two services inside the church and one in the church parking lot on Mother’s Day Sunday.
But in a Facebook post Thursday he altered that plan. Instead of meeting indoors in defiance of Mills’ orders, which he’d announced May 3 at a parking lot service, the chairs inside the church would be moved outdoors. Family would be able to sit together in groups 6 feet apart to observe social distancing guidelines or people could remain in their cars.
“The nice thing about this setup is that it will allow others to sit in their cars and listen and see and still be comfortable and safe,” Graves said.
That still would be an act of civil disobedience because the governor has said that drive-in services now are allowed but people must remain in their vehicles with the windows rolled up, the pastor said. He said the point was for the congregation to be able to worship together and feel that they are in fellowship. Whether that is inside or outside did not really matter.
An affidavit filed late Thursday by Horatio G. Mihet, one of Calvary Chapel’s attorneys, said the church had asked the governor’s office for an accommodation to legally allow for the setup Graves described and the request was denied.
The Maine State Police has said it would charge those who violate the governor’s gathering order with a Class E crime, punishable by up to six months in jail and a fine of up to $1,000.
Graves said Thursday neither he nor the church have been warned by any law enforcement agency that he or church members could be charged for meeting indoors.
If the judge were to grant the temporary order, it would only apply to Calvary Chapel. Any permanent injunction issued would apply to all houses of worship in the state.
The lawsuit is being handled by Liberty Counsel, which has offices in central Florida, Virginia and Washington, D.C., and sponsors litigation related to evangelical Christian values. The Southern Poverty Law Center in Montgomery, Alabama, has listed the organization as anti-LGBTQ hate group.
The Orrington church is a branch of the original Calvary Chapel founded in Costa Mesa, California, by Chuck Smith, who went on to become a leader in the 1970s Jesus Movement. Graves began preaching in Bangor in the early 1990s.
Watch: Gov. Janet Mills, Maine CDC coronavirus press conference, May 8