Why a county ban on church gatherings got pushback from Attorney General Curtis Hill

Published by: Crystal Hill
Indy Star

An Indiana county health commissioner's attempt to ban church gatherings to prevent the spread of the coronavirus was met with pushback from Attorney General Curtis Hill over what he described as "unconstitutional religious discrimination."

Hill sent a letter Tuesday to Allen County Health Commissioner Dr. Deborah McMahan that urged her to reconsider a March 21 order that prohibited church gatherings in Allen County, including gatherings held in nonchurch venues. McMahan's order said that no gatherings with more than 10 individuals in a church building are allowed.

Although McMahan's order is no longer active, she said she stands by the decision.

In a Wednesday statement to IndyStar, McMahan said her decision to order the churches closed was an example of local government officials responding to threats to the health and well-being of their citizens.

Her order was issued in response to health officials learning that some local congregations hoped to gather in small, separated groups of 10 for bible study and other services, according to the March 21 statement on the Allen County's website. 

"After careful consideration and vetting through our executive board, I made the decision to implement the existing law, which allows us to limit the church gatherings to ten or less," McMahan said Wednesday.

McMahan is referring to Indiana Code Section 16-20-1-24, which allows local health officers to order schools and churches closed and forbid public gatherings when considered necessary to prevent and stop epidemics.

"For the Attorney General, local, state and federal legislators who disagree with the current law: this is their issue to resolve, and I am sure they can share their plan with you to address this issue as this is in their wheelhouse," McMahan said.

McMahan walked back the directive Tuesday, saying that she would instead rely on Gov. Eric Holcomb's executive order that addresses gatherings. The "stay at home" order, which took effect late Tuesday and is slated to end April 6, canceled large gatherings, including church services. Religious leaders are encouraged to livestream services while practicing social distancing.

"We allowed the order to expire (on Tuesday) the moment the Governor’s more comprehensive law took effect," McMahan said in a statement. "Again, we had our order expire to minimize any confusion."

The incident raises questions about how religious freedom applies to coronavirus bans on large gatherings that include religious meetings, especially as churches across the country, including some initially resistant pastors, have switched to online-only services.

Hill's letter took issue with McMahan appearing to single out churches by banning religious gatherings while only recommending against other nonessential gatherings of more than 10 people.

"Absent scientific evidence that COVID-19 spreads more quickly in religious gatherings than others, your order amounts to unconstitutional religious discrimination," Hill said.

If this was indeed what McMahan was doing, Hill would be right to challenge the constitutionality of her decision, according to Gerard Magliocca, an Indiana University law professor and expert in constitutional law.

"If you have an order saying there shall be no gatherings of more than five people until further notice because we have an epidemic, that is constitutional," Magliocca said, "because there's a long tradition of state and local governments issuing orders like that during epidemics.

What's different, Magliocca said, is if an order was issued banning religious gatherings and not applying the same order to other meetings. 

"It would be a problem because it would be treating churches differently from everybody else," he said. "If you said, 50 people can meet in the library to talk about sports, but the same 50 people can't meet in the church to have a service, there's no legal basis for that."

Had the issue escalated, Hill, or a church, would have been able to bring a lawsuit against the county, Magliocca said. 

As of Wednesday, Allen County accounts for seven of Indiana's 477 positive cases of the novel coronavirus.