Are liquor stores "more essential" than religious services?

This week, in Worcester, Massachusetts, Baptist Pastor Kris Casey held services at Adams Square Baptist Church in violation of Governor Charlie Baker’s executive order banning gatherings of ten or more people during the novel coronavirus lockdown. Local officials sent a warning to Casey, reminding him that he was in violation of a state order and that further such violations could result in a $300 fine, a $500 fine, or possibly even criminal charges.

For his part, the pastor insisted that the order was a violation of his congregants’ constitutional rights while noting that the church was observing social distancing guidelines for the parishioners in the pews. In a written response to the state, Casey went on to note another curious fact. Why was his church being shut down as a nonessential operation when liquor stores were deemed essential and still allowed to do business? (CBS Boston)

In a letter to state officials before holding services, Casey argued that the order violates Constitutional rights and added, “I notice that liquor stores and garden centers for example are designated as essential services, but that religious services of 10 or more people are not.”

The city of Worcester has warned the church that they are in violation of the state order…

The governor was asked about the church at his daily news conference Wednesday.

“We believe it’s most appropriately dealt with at the local level. I know the city of Worcester has concerns about this, appropriate concerns, and I anticipate that they’ll be the ones who will deal with the church on that,” Baker said.

The Governor is totally bailing out on any and all responsibility for a situation with huge potential political and legal consequences. He issued an order that effectively shut the pastor’s church down, but when asked about it, he wrote it off as a “local issue” that the city of Worcester would have to deal with on their own. Smooth move, Charlie.

But what about Pastor Casey’s central question? How can liquor stores be essential businesses but churches not be? On the surface, it looks like a fairly easy issue to address. You don’t have a constitutional right to get drunk (21st Amendment notwithstanding), but you do have a right to practice your religion of choice. So the pastor should have a watertight case here, right?

Not so fast. In the end, we’re not really talking about the “nonessential business” issue here. This situation deals strictly with the ban on gatherings of ten or more people. The liquor stores aren’t allowed to operate if they allow more than the maximum number of customers in the store at one time. Some of them, like the one we normally patronize here in New York, don’t let anyone in the store. You order by phone or over an app and they bring it out to the parking lot.

The Pastor’s last gathering had 56 people in attendance. Now, if his church was able to accommodate them all while keeping them six feet apart, it seems pointless to try to shut them down. But if the state is determined to enforce this order, they probably feel that it needs to be enforced evenly across the board. (Whether these authoritarian restrictions of freedom of movement and assembly are constitutional to begin with is a subject for another column.)

There are no easy answers here. It would be better if orders like these could be run through the legislature rather than being handed down from on high via executive fiat. But most of the legislators are locked down at home now also. Many elected executives will have much to account for when this is finally over, but for the time being we seem to be stuck with this situation and few courts are likely to challenge executive power under such conditions.

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