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Judge rules for state regarding large gatherings

Copyright © 2020 Albuquerque Journal

Journal Staff Writer

A federal judge has sided with the state on its ban on mass gatherings in places of worship during the COVID-19 pandemic.

The order by U.S. District Judge James Browning is in response to a complaint filed late last week by Legacy Church seeking a temporary restraining order and permanent injunction to prevent the “secretary (of health) from now enforcing mass gathering restrictions on places of worship, including Legacy’s four New Mexico campuses,” according to court documents.

“While Legacy continues to encourage its members to worship with them through their online services, the Secretary cannot require them to lock out parishioners if Legacy can provide the same socially distant measures used by essential businesses,” the church wrote. “In the alternative, Legacy requests that restrictions on gathering be no-less than those imposed on retail spaces in the state. Further in the alternative, Legacy requests the Court enjoin the Secretary and the State from enforcing the (April 11 order’s) mass gathering restriction of five people or more in a connected space, as it specifically targets people freely exercising their religious beliefs.”

However, Browning determined Friday that the public health order does not violate Legacy Church’s right to religious freedom because it is neutral and generally applicable. He also wrote that the order provides a “reasonable time, place and manner restriction,” so it doesn’t violate the church’s right to assemble.

The issue arose after state Health Secretary Kathy Kunkel issued a public health order last Saturday that included houses of worship in the ban on mass gatherings to stem the spread of coronavirus. Previous orders had made exemptions for churches, synagogues and mosques.

Pastor Steve Smothermon told the Journal earlier in the week that although Legacy Church had not planned to hold in-person services for Easter, its online production requires about 30 people in the building.

Executive Pastor Daniel McCabe said Friday that the judge’s order will allow the church to have more than five people in the room to produce the livestream services.

“We’ll continue to fight for churches to have the right to fill 20% of their auditoriums if they so choose,” he said.

After nearly 100 pages spelling out the arguments made by the Department of Health and the church and analysis of those arguments, Browning denied the church’s motion.

“The public’s interest in limiting the COVID-19 outbreak in the state, a compelling interest, outweighs the right to gather,” he wrote.

The Governor’s Office responded Friday by pointing out that the state is still allowing churches to conduct services through audiovisual means and other creative ways, such as drive-up services.

“For a limited time, during the pendency of this health emergency, the court saw the state was within its constitutional authority to restrict those gatherings,” said Nora Meyers Sackett, the governor’s spokeswoman. “As is clear in the order, nothing in the order precludes churches from conducting audiovisual presentations of their services.”

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