First Amendment: Executive Order by the Governor Limiting Large Gatherings Statewide
| Publication year | 2020 |
FIRST AMENDMENT: Executive Order by the Governor Limiting Large Gatherings Statewide
Alex N. Estroff
Georgia State University College of Law, aestroff2@student.gsu.edu
Boris W. Gautier
Georgia State University College of Law, bgautier1@student.gsu.edu
U.S. Constitution: U.S. Const. amend. I
Executive Order: Ga. Exec. Order No. 03.23.20.01
Effective Date: March 23, 2020
Summary: Beginning in March 2020, Georgia Governor Brian Kemp (R) issued a series of Executive Orders addressing the State's response to the COVID-19 pandemic. Included in these Orders was a prohibition on large groups of people gathering in a single location. Though an effective means of curtailing the virus's rapid transmission, this specific provision became a source of controversy for groups who believed such a prohibition infringed upon their First Amendment rights.
Introduction
Throughout American history, national emergencies have tested the resilience of the fundamental liberties found in the Bill of Rights.1 in times of crisis, elected officials, especially those in the executive branches of federal and state governments, must delicately balance public safety with individual liberty. The resulting policy decisions often result in litigation, shifting the responsibility of this balancing act to the judiciary.2 State government responses to the COVID-19
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pandemic presented the latest iteration of this constitutional tension. Specifically, state directives aimed at protecting public health by restricting large gatherings raise challenging First Amendment issues involving freedom of speech, assembly, and religion.3 In Georgia, Governor Brian Kemp's (R) COVID-19 Executive Orders—although less prohibitive than those in other states—implicated these concerns and faced backlash from some residents.4
Background
The COVID-19 Pandemic
In January 2020, the World Health Organization (WHO) began investigating an outbreak of a novel coronavirus from Wuhan, China.5 This new disease, now known as COVID-19, spread quickly throughout the world.6 In response, the WHO declared a Public Health Emergency of International Concern on January 30.7 Less than two months later, on March 11, the WHO upgraded the outbreak to a pandemic and encouraged all jurisdictions to combat its spread with "urgent and aggressive action."8 As of October 10, 2020, more
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than 37 million confirmed cases existed globally, and over a million people had died from COVID-19.9
Scientists reported the first confirmed case of COVID-19 in the United States in late January.10 The Centers for Disease Control and Prevention (CDC) had confirmed over seven million cases and approximately 213,000 deaths from the virus in the United States as of October 10.11 No state was immune from the spread of the virus; CDC data showed both confirmed cases and deaths in every state and most American territories.12 Georgia grappled with high rates of contagion as well, reporting over 330,000 cases and 7,300 deaths as of October 10.13
The Government Response to COVID-19
In the wake of the WHO declaration, President Donald Trump (R) declared a public health emergency in the United States and allocated additional federal resources to respond to the COVID-19 outbreak.14 The federal government also outlined a series of recommendations and directives designed to "slow the spread" of the virus.15 These guidelines advised Americans to stay at home, limit travel, and avoid congregating in large groups.16
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Because of the federal system in the United States, however, the government response to COVID-19 largely depended on the decisions of each state.17 By mid-March, every state had followed the federal government's lead and declared a state of emergency.18 These emergency declarations were accompanied by variations of a shelter-in-place Order, which generally prohibited gatherings of large groups.19 In most states, the Executive Orders specifically banned any public gatherings of more than ten people and mandated the closure of many businesses.20 The scope and duration of these Executive Orders varied by jurisdiction.21 As discussed infra, Georgia's Governor first issued an Executive Order imposing shelter-in-place requirements on April 2, 2020, and gradually lifted and amended parts of the Order over the subsequent weeks and months.22
Challenges to Governor Kemp's Executive Order
Unlike other States' Executive Orders, the shelter-in-place provisions of Governor Brian Kemp's (R) COVID-19-related Orders did not face highly publicized First Amendment lawsuits, and the issue now appears moot.23 The mandatory enforcement provisions of the Order expired on May 1.24
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While the Orders were in effect, however, at least one church disregarded the restrictions on large gatherings by holding in-person worship services.25 The Statesboro-based Redeeming Love Church of God the Bibleway's defiance of the Governor's Orders resulted in the Georgia State Patrol issuing citations to church leaders.26 As of October 2020, these citations remained pending adjudication.27 The church's pastor, Dr. Clayton Cowart, indicated the possibility of First Amendment litigation to challenge the applicability of the Executive Orders to religious gatherings and churches.28
Free Exercise Clause challenges to similar bans on large gatherings by religious groups in other states led to the development of a body of federal case law culminating in an opinion by the U.S. Supreme Court declining to grant an interlocutory emergency injunction against California's restriction on large gatherings as applied to churches.29 Although that Order arguably established that these types of restrictions are consistent with the First Amendment,
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the potential for future litigation continues to loom large, especially when considering the possibility that renewed shelter-in-place Orders may be issued in response to an ongoing pandemic, such as COVID-19, or similar health-related emergencies that may occur in the future.30 Should Georgia implement a new version of its ban on large gatherings, organizations such as Dr. Cowart's church would likely file suit and force courts to decide whether such bans comport with the religious liberty and freedom of assembly rights protected by the First Amendment.31
Governor Kemp's Executive Order Limiting Public Gatherings
On March 23, 2020, Governor Kemp issued an Executive Order prohibiting gatherings of more than ten people in a single location "if such gathering requires persons to stand or to be seated within six (6) feet of any other person."32 This ten-person limit remained in effect until June 1 when the State permitted gatherings of twenty-five people so long as the gatherers maintained six feet of distance between each person.33 And on June 11, Governor Kemp issued a new Order increasing the number of people permitted to be in a single location to fifty.34
Although some Georgians viewed Governor Kemp's ban on gatherings as a crucial defense against the virus's spread, the Order also gave rise to constitutional concerns.35 In particular, some religious leaders in the state saw the ban on gatherings as a direct impediment to their right to freely exercise their religion and to peaceably assemble.36 Although these constitutional concerns largely
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faded as Governor Kemp eased restrictions on gatherings, the potential for renewed restrictions loomed large as confirmed cases of the virus continued to surge statewide throughout the summer of 2020.37
In a March 16 press release, Governor Kemp encouraged, but did not require, all faith-based organizations to cancel their in-person services and public events.38 On April 2, Governor Kemp issued his most restrictive Executive Order of the pandemic—the statewide shelter-in-place Order that prohibited gatherings of ten or more people.39 Although this Order did not specifically reference churches, it also lacked any explicit exemptions for religious organizations or faith-based communities.40 The assumption that it applied to worship services sparked outrage from some religious leaders who wished to continue unaltered services.41
However, unlike governors from other states, Governor Kemp never specifically ordered religious communities to stop holding services.42 And on April 20, Governor Kemp formally announced that churches could begin holding in-person services again as part of his expansive efforts to reopen the state.43 Additionally, when President Trump declared all houses of worship to be "essential
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services" on May 22, Governor Kemp applauded the decision and encouraged churches, synagogues, and mosques to reopen their doors.44 Governor Kemp further rolled back restrictions on June 11, allowing gatherings of up to fifty people with appropriate social distancing.45
Although Georgia's restrictions on religious services were some of the most lenient in the nation, at least one church in the state created controversy when it defied all social distancing and crowd limit measures, and held services as usual.46 Just days after the statewide shelter-in-place Order went into effect, Redeeming Love Church of God the Bibleway in Statesboro held in-person services.47 Dr. Cowart, the church's pastor, had no compunction in admitting that the twenty-to-forty attendees did not practice social distancing; as part of their worship ceremony, they touched each other and held hands.48 When state troopers saw the gathering, they shut it down and issued citations to the pastor and three other attendees for reckless conduct.49
Analysis
Given that Governor Brian Kemp's (R) Executive Orders regulated the way Georgians gathered and expressed their beliefs, the Orders necessarily implicated the First Amendment. Specifically, Governor Kemp's ban on gatherings affected Georgians' right to assemble and their free exercise of religion.
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The First...
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