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.”

There has been some litigation recently, primarily 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. That is because largely, the federal government has left how the states handle their response to COVID 19 up to the individual state. That means each state’s governor is determining 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. In fact, 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 ended up filing 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, but it seems moot now that the latest Executive Order specifically states 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 10 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 specifically refers people 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/or 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 the ones occurring in Raleigh prior to 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 temporarily close or has moved to online services only.

That being said, the Executive Order is enforceable by law enforcement, so they have the ability to 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.

As of now, Governor Cooper’s Executive Order is scheduled to expire on June 26, 2020 at 5:00 pm. However, that could either be lifted prior to 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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