The First Amendment vs. COVID-19

The First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Recently, there has been some litigation on the West Coast in states such as California and Oregon regarding the conflict between the First Amendment and the individual states’ Stay at Home Orders. The federal government has primarily left how the states respond to COVID 19 up to the respective state. That means each state’s governor determines the rules and guidelines for these Stay at Home and Safer at Home Executive Orders.

However, President Trump did weigh in on Friday, May 22, 2020, strongly encouraging state leaders to consider religious services essential and allow them to open in states where they are currently prohibited from conducting mass gatherings. He went as far as to threaten to overturn any state order prohibiting the same.

Both North Carolina and South Carolina governors exempt religious services and places of worship from any Stay at Home Order, at least in the most recent ones. Some specifically cite the First Amendment as their reasoning for the same. However, Governor Cooper’s first Executive Order did force places of worship to close their doors. Several church leaders filed a lawsuit over it, and a Federal Judge agreed with them, at least temporarily, allowing them to open. Governor Cooper has said he will not appeal the ruling. There is supposed to be a final hearing on May 29, 2020. Still, it seems moot now that the latest Executive Order states explicitly it does not apply to religious services or other First Amendment rights.

For North Carolina, the mass gathering limit and other requirements of Governor Roy Cooper’s Executive Order 141 dated May 20, 2020, state that there can be no more than ten people in an indoor confined space (households excluded) and no more than 25 people outside. Again, this does not apply to those exercising their First Amendment rights, but the social distancing guidelines are strongly encouraged. Governor Cooper’s Executive Order refers people explicitly to the North Carolina Department of Health and Human Services website for more specific guidelines, but boiled down, they recommend what they are calling the Three Ws:

WEAR a mask

WAIT six feet apart (social distancing)

WASH your hands often and use hand sanitizer

Governor Cooper’s Executive Order also states that services such as funerals, weddings, and other exercises of First Amendment rights are exempt. This would also include peaceful protests, such as those occurring in Raleigh before the Phase 2 Order.

The Executive Order also states that it is not to be used as a sword for people to try and create causes of action. For example, you cannot use the Executive Order to try and force your preferred place of worship to open its doors to the public if it has decided to close or has moved to online services only temporarily.

That being said, the Executive Order is enforceable by law enforcement, so they can break up any mass gatherings outside of those exercising their First Amendment rights. Those found in violation of the Executive Order can be charged with a Class 2 misdemeanor, which is punishable by up to 60 days in jail. To date, I have not heard of anyone being charged with the same, but please let us know if you have.

Governor Cooper’s Executive Order is scheduled to expire on June 26, 2020, at 5:00 pm. However, that could either be lifted before the expiration or it could be extended.

At The Law Offices of Jason E. Taylor, PC, we are here to help the citizens of the Carolinas or anyone suffering injuries or damages in those states. We can either answer your question, provide you with assistance, or point you in the right direction. Give us a call at 800-351-3008 or visit us on our website at

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