WTE: Health orders should respect religious gatherings

Three weeks ago, today, this column praised Governor Gordon for declining to ban religious gatherings by law. Instead of power, he used persuasion—to good effect. But even while those words were being written, his order banning gatherings was being rewritten to single out churches for invidious discrimination.

Wyoming Statute 35-1-240(a)(iv), allows the department of health to “forbid gatherings of people” when the state health officer deems it “necessary to protect public health.” On March 19, the governor used this power in “Statewide Public Health Order #2.”

This Order prohibited “any planned or spontaneous event, public or private, bringing together, or likely bringing together, ten (10) people or more in a single room or a single confined space (whether indoor or outdoor) at the same time.” By this definition, ten people in a stadium and ten people in a phone booth are legally indistinguishable.

Therefore, the Order provided 12 exemptions. It never banned all gatherings as 35-1-240 allows. It banned some but not others. One exemption, however, rescued it from charges of discrimination. “Retail or business establishments, where more than ten (10) people may be present but are generally not within six (6) feet of one another,” were also exempted.

This exemption made the Order evenhandedly applicable to any business from commerce to the preaching of the Gospel. Unlike states that arbitrarily dictated some business as “non-essential,” Wyoming focused on objective measures to keep all business safe and legal.

It worked! Early predictions that Wyoming would suffer as many as 251 coronavirus deaths by June 1 have been reduced by 95 percent. By April 28, Governor Gordon held a press conference to roll out new health orders for reopening.

While May 1st brought substantial changes for gyms, restaurants and salons, the order about gathering (#2) remained unchanged except that counties could request a “variance.”

Then, a funny thing happened on the way to the re-opening. The following morning Platte county churches were singled out in an email from the health office. They were told that the county was writing a variance for them.

Ronald Reagan once quipped, “The nine most terrifying words in the English language are: I'm from the Government, and I'm here to help.” On the day that the new orders went into effect, the churches of Platte County suddenly found themselves under a variance that was stricter than anything they had faced before.

It singled them out by name and “subject[ed]” them to nine mandatory provisions. People were “prohibited” free exercise. The government established worship practices with the words “must” and “shall.” Infractions were threatened with “criminal prosecution.”

Soon, this pattern was repeated in 14 counties*—many without even consulting the churches. Every “variance” was nearly identical—seemingly dictated from a single source. In Uinta County, at least, that source was Gordon's attorney general.

As recently as May 1, the governor was carefully avoiding any mention of churches. Now, just when every other service industry was being given greater room to operate, churches were singled out and worship was restricted. On May 13, 2020 this strident and discriminatory language was published in the governor’s “Fourth Continuation, and Modification, of Statewide Public Health Order #2.”

To be clear, nobody objects to the guidance. The language is objectionable for other reasons.

First, it is unequal and discriminatory. Auctioneers and meetings of Alcoholics Anonymous met in groups greater than 10 for six weeks without the requirement to sanitize the building between meetings. But churches are explicitly so required.

This is precisely what Attorney General, Bill Barr, warned against . The CDC Interim Guidance for Communities of Faith stipulates: “in accordance with the First Amendment, no faith community should be asked to adopt any mitigation strategies that are more stringent than the mitigation strategies asked of similarly situated entities or activities.”

Second, “The federal government may not prescribe standards for interactions of faith communities in houses of worship.” The First Amendment prohibits the government from establishing religious practices of any kind. For this reason, “CDC offers these suggestions for faith communities to consider and accept, reject, or modify, consistent with their own faith traditions, in the course of preparing to reconvene for in-person gatherings while still working to prevent the spread of COVID-19.”

State health orders should follow the lead of the Centers for Disease Control and not issue wording explicitly rejected by experts. When Governor Gordon first issued Public Health Order #2, it treated religious gatherings with equality and respect. As modified on May 13 and continued on May 27, it is discriminatory and disrespectful toward religion.

The state has neither the competence nor the authority to dictate the true worship of God. The Fifth Continuation of Health Order #2 is unacceptable and sets an unhealthy precedent. It needs immediate correction.

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* Links to the 14 County Variances:

• Big Horn, May 8
• Campbell, May 8
• Carbon, May 6
• Crook, May 8
• Goshen, May 5
• Hot Springs, May 6
• Johnson, May 7
• Niobrara, May 1
• Platte, May 1
• Sheridan, May 4
• Sublette, May 8
• Sweetwater, May 7
• Uinta, May 6
• Weston, May 6

Also published in the Wyoming Tribune Eagle on May 29, 2020.