UPDATE (3:02 p.m. PT) — Two Southern Oregon churches filed a lawsuit in federal court Tuesday, arguing the state's limits on the size of religious gatherings amid the ongoing coronavirus pandemic violate their constitutionally protected rights to free speech and assembly.
Under an executive order, Oregon Gov. Kate Brown has limited the size of in-person religious gatherings to 25 people.
The churches, Edgewater Christian Fellowship in Josephine County and the Roseburg Church of God of Prophecy in Douglas County, said the governor's executive order — which the lawsuit dubs the "Religious Assembly Ban" — is "irrational and unconstitutional."
The lawsuit comes as President Donald Trump has demanded governors across the country to allow houses to worship to reopen. In Oregon, a separate lawsuit, also from a group of churches and Eastern Oregon officials, is before the state's Supreme Court. It argues Brown has exceeded her authority under state law and must go to the Oregon Legislature to keep her executive orders in place.
On Friday, the Ninth Circuit Court of Appeals upheld California Gov. Gavin Newsom's ban on in-person religious services. That ruling could affect the Oregon case, because the state is part of the Ninth Circuit.
A spokesman for Brown said they don't comment on pending litigation.
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The lawsuit in federal court is backed by the Alliance Defending Freedom, a Christian legal organization, which is representing the churches and their pastors. They point out that other parts of society, like restaurants and grocery stores, can operate at a greater capacity than houses of worship.
"In Douglas County, Oregon, Pastor [Robert] Miller may be jailed for going to church with twenty-five other people on a Sunday morning, but can join those same people and more at a dine-in restaurant for Sunday lunch with no penalty," the lawsuit states.
Some counties that are reopening, and their elected leaders, have chosen to back churches in opposing the governor's orders. Deschutes County leaders will gather this week to vote on an order specifically opposing restrictions on religious gatherings. The order would block county employees from assisting state agencies in enforcing the restrictions.
"Our community will exercise good and sound judgment as to how to gather to worship in a reasonably safe manner," the proposed Deschutes County order states.
The lawsuit names Brown as a defendant, as well as Oregon State Police Superintendent Travis Hampton, Oregon Health Authority Director Patrick Allen, Josephine County Sheriff David Daniel and Douglas County Sheriff John Hanlin.
"The problem is the governor is treating people in a secular setting one way, but if they happen to do the exact same act in a religious setting, then it becomes a problem," said Ryan Tucker, senior council at the Alliance Defending Freedom. "That's a constitutional issue that should concern really all of us."
The churches haven't met in-person since mid-March, the lawsuit states.
Edgewater Christian Fellowship and the Roseburg Church of God of Prophecy said the limited size allowed under the governor's order means there would be dozens of services to accommodate the size of their congregations, something they argue isn't practical. They also argue that some members of their congregation can't attend online services.
Related: Q&A: What To Expect As Oregon Starts To Reopen
The churches said the Bible requires Christians to gather in-person to pray together and celebrate their faith, and that drive-in services and online services "do not fully meet the Bible's requirement."
"Crises do not suspend the Constitution and there is no legitimate, much less compelling, justification for banning church services of twenty-six or more even with social distancing and health and safety protocols while allowing gyms, restaurants, retail establishments, malls, and more to fill to social distancing capacity," the lawsuit argues.
The churches said they're hoping to hold larger services this coming Sunday. They also note in their lawsuit that they would follow social distancing guidelines, adding that the number of total known cases in Douglas and Josephine counties stands around 25 positive cases in each county since the outbreak began. There was also one COVID-19 death in Josephine County.
"Because the Governor’s order threatens significant jail time and penalties for anyone who meets for a church service in violation of her order, a temporary restraining order and injunction are necessary to preserve Plaintiffs’ constitutional rights," the lawsuit states.