Oregon Supreme Court Could Rule On Brown's COVID-19 Orders Any Day

By Conrad Wilson (OPB)
Portland, Ore. May 22, 2020 11:19 p.m.

A group of churches challenging Gov. Kate Brown’s executive orders on the state’s response to COVID-19 filed their legal arguments with the Oregon Supreme Court on Friday.

The churches oppose orders that have mandated social distancing and required businesses to close. Many of those orders already have relaxed, as most counties in the state have started the phased process of reopening.


"Even when responding to the most extreme emergencies, the Governor of Oregon cannot exceed prescribed limits on his or her emergency powers," Ray Hacke, attorney for the churches, wrote in his brief filed with the court. "In this case, the [church's] constitutionally protected freedoms of religion and assembly have been sharply curtailed, if not prohibited outright ... ."

The churches argue Brown has exceeded her authority, saying her executive orders are limited to 28 days unless she asks for an extension from the Legislature.

Kevin Mannix, president of the nonprofit Common Sense for Oregon, doesn’t represent the churches directly, but supports their efforts. He has said he plans to file a brief with the court.

Speaking to reporters Friday, Mannix said the law gives the governor sweeping powers under public health emergencies.

“She has some very powerful tools at her disposal, that tell people to stay home, close school, tell people they can’t go to church, but only for 28 days, and those 28 days expired on April 6,” Mannix said.

Brown's orders currently allow for fewer than 25 people to gather in houses of worship.


The Oregon Department of Justice, which is representing the governor, argues the law clearly supports Brown's actions.

The fight over religious assembly began Monday, when a Baker County Circuit Court judge issued a preliminary injunction in favor of the churches, effectively tossing out more than 20 of Brown's orders. Hours later, the Oregon Supreme Court issued a stay, blocking the judge's injunction. Now, the Supreme Court is poised to decide whether the executive orders can legally remain in place.

The Oregon Association of Nurses weighed in on the case with a brief Friday, arguing the law supports Brown’s actions, and that the executive orders have slowed COVID-19 from spreading. Furthermore, the nurses argue, removing restrictions completely would dramatically increase the public health risks.

“Oregon has fared better than most states largely as a result of the State Emergency Executive Orders that are the subject of this case,” the nurses association said in its brief. “The consensus of the health care community is that there is an imminent and apparent need for a continued cautious approach to re-opening, not a precipitous removal of restrictions.”

The Oregon Nurses Association also wrote about their ongoing lack of protective equipment, and referenced churches in Texas and Georgia that reopened this month only to suspend services indefinitely after leaders and members tested positive for the virus.

“The congregants of those churches had been using the distancing methods alleged to be sufficient by plaintiffs and the trial court in this case,” the nurses association said.

On Friday, President Trump deemed places of worship essential and called on governors to reopen houses of worship this weekend.

“The governors need to do the right thing and allow these very important, essential places of faith to open, right now, for this weekend,” Trump said from the White House Briefing Room.

Mannix said Trump’s remarks were appreciated, but added he didn’t think they would have any bearing on the case before the Supreme Court.

“It’s important for all of our public officials to remember that freedom of religion has a very special place in the American Constitution,” he said. “I’m pleased to hear him speaking out on this and I hope the governors pay attention.”

The Supreme Court has wide discretion and could rule at any time.