Mecklenburg County’s largest knownsuperspreader COVID-19 event stemmed from weeklong church services last fall at the United House of Prayer on Beatties Ford Road. County officials believe the event led to more than 200 infections and 12 deaths.
But when County Commissioners instituted a new mask mandate Wednesday, the order didn’t apply to “worship, religious, spiritual gatherings, funeral ceremonies, wedding ceremonies, and other activities constituting the exercise of First Amendment rights.”
Health director Gibbie Harris told commissioners the exceptions are “consistent with what was in the original governor’s mandate for masks” and that there were exemptions “where they were needed.”
But it’s unclear why. Commissioner Susan Rodriguez-McDowell, who voted for the mandate, said she doesn’t know.
“I would have thought that naturally would have included churches because they are indoors,” Rodriguez-McDowell said. “To me common sense would say it would apply to churches.”
Orange and Durham counties recently enacted their own mask mandates. Those counties did not include exemptions for funerals, weddings, and religious or spiritual services.
“They did not exempt anything,” said Orange County spokesperson Todd McGee. “They wanted every indoor situation covered.”
In response to a WFAE question about the exemptions, Mecklenburg County's health department said in a statement that “based on county legal interpretation, the exception of religious activities was implied in the
governor’s executive order and is also covered by law. The language was included in the Board of Health Rule to assure clarity.”
In May 2020, federal judge James C. Dever III overturned Gov. Roy Cooper’s mass gathering limits on churches. Dever’s 22-page temporary restraining order said Cooper’s limit of 10 people for indoor religious services violated the First Amendment.
“The court trusts worshipers and their leaders to look after one another and society while exercising their free exercise rights just as they and their fellow citizens (whether religious or not) do when engaged in non-religious activities,” Dever wrote.
Dever’s ruling came before Cooper enacted a mask mandate. Dever did not say anything as to whether the state could require people to wear masks during religious services.
A month later, Cooper enacted a statewide mask mandate. His executive order listed places in which masks would be required — such as restaurants, retail businesses, transportation, and child care facilities. The order did not say that masks would be required in churches or temples. And at the time, the Baptist State Convention of North Carolinawrote that it believed churches were exempt.
But during the pandemic, Cooper has often said that local governments can enact more strict COVID-19 restrictions than the state.
And in passing its ordinance Wednesday, Mecklenburg Commissioners did that. For instance, Cooper’s previous mask mandate for schools did not cover private schools. The county’s new mask mandate does.
Rodriguez-McDowell said she doesn’t know why the county would choose to be stricter in requiring face coverings in private schools, while granting exemptions for weddings, funerals and religious services.
The spread of the delta variant of COVID-19 led local officials to approve two mask mandates this week.
On Monday, Charlotte Mayor Vi Lyles and Mecklenburg Commission Chair George Dunlap approved a temporary mask mandate that covered the city and unincorporated areas of the county. That mandate didn't have any exemptions for religious services.
But two days later, Mecklenburg Commissioners approved a second mask mandate. That order added language allowing for the exemptions. When the new mandate goes into effect on Aug. 31, it will supersede the one from Monday.
The city referred questions about the difference in the two mandates to the county.
Mecklenburg County seems to be “not even testing the waters” and “staying away from any prospect of litigation,” said Rick Su, a law professor at the University of North Carolina Chapel Hill.
Though the U.S. Supreme Court seems to have set a high bar for the government to justify imposing public health requirements on religious activities, Su said it has not yet issued a ruling on mask mandates.
“It’s not entirely clear that if Mecklenburg County or Gov. Cooper imposed a mask mandate on religious organizations or gatherings that the Supreme Court would strike it down,” Su said.
In fact, he said, state and local governments that have fewer exemptions to their COVID-19 restrictions — or apply them across the board — may actually have a stronger legal argument.
“If what we’re trying to say is that religious activity should be treated just as well as any other activity, (if we can say) ‘There is no activity that gets treated better. We’re enforcing it across the board.’ It may be that that would survive the Supreme Court’s review,” Su said.
On the other hand, even though churches are legally treated as businesses, according to Su, they have a degree of First Amendment protections that businesses generally don’t. Churches could theoretically argue that some accepted requirements for businesses, like having fire extinguishers or lighted exit signs in case of a fire, don’t apply to them, he said. For example, a church that doesn’t allow technology could argue that a lighted exit sign goes against its beliefs.
The mask mandate passed 6-2. Commissioners Ella Scarborough and Pat Cotham voted no. Cotham said she was concerned that the county was overriding the wishes of some of the towns, like Huntersville, whose mayor has said he doesn’t support a new mask mandate.
It will last until coronavirus metrics improve according to Centers for Disease Control and Prevention guidelines.
