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Indiana's Republican attorney general is claiming the state's Republican governor usurped Hoosiers' religious liberty earlier this year by directing places of worship to close their doors in the early days of the coronavirus pandemic.

In a five-page official opinion issued last week, Attorney General Curtis Hill Jr. says Gov. Eric Holcomb engaged in unlawful religious discrimination by issuing COVID-19 prevention guidance that treated religious entities different than other places of business.

State records show the governor's guidance for places of worship only was in effect from April 9 to May 1, and it relied on voluntary compliance by clergy and members of religious organizations.

The governor also insisted at the time that his guidance, issued in conjunction with the State Department of Health, was intended "not to restrict religious liberty" but "to save lives during these extraordinary times."

Hill does not identify in his opinion — which has no force of law — any religious institution, leader or worshiper who was sanctioned or punished by the state for not following the guidance. 

Nevertheless, Hill contends the governor's recommendation that houses of worship close their doors to minimize the spread of COVID-19 improperly exceeded a directive from the U.S. Centers for Disease Control authorizing religious gatherings of up to 10 people.

Communion, parking

He also takes issue with Holcomb's guidance for churches to opt for no communion or packaged communion, instead of traditional distribution methods, and to maintain at least 9 feet of separation between vehicles parked at outdoor religious services.

The governor "did not recite any evidence or plausible explanation for singling out 'places of worship' for special burdens not applicable to other essential businesses and services," Hill says.

"If nine-foot vehicle spacing restrictions were necessary to prevent the spread of COVID-19, then such restrictions should have been applied to all manner of parking lots, not just those located outside places of worship."

Hill notes the First Amendment to the U.S. Constitution prohibits state officials from imposing discriminatory burdens on religious observers that do not similarly apply to, in this case, other "essential" businesses.

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While he agrees slowing the spread of COVID-19 is a compelling government interest, Hill concludes there was no evidence or explanation offered by the governor to justify particularized guidance for religious entities.

"Because it subjected religious activities and institutions to additional restrictions than other essential activities and businesses without any apparent justification, the governor's guidance was unlawful as religious discrimination under the First Amendment," Hill says.

The governor's office declined to comment on the attorney general's opinion which will be published online in the Indiana Register for future reference.

Hill's opinion was requested by state Rep. Curt Nisly, R-Milford, who sent a letter to Holcomb March 16 objecting to the governor's decision to close restaurants, bars and other businesses in an effort to prevent the spread of COVID-19 before the state's hospital capacity and supplies of personal protective equipment were secured.

Nisly also joined five other Republican state representatives in July to demand Holcomb call a special session of the General Assembly to check the governor's continuing management of the pandemic through executive orders.

On Friday, Nisly said he was grateful for the attorney general's opinion "backing the First Amendment rights of all worshiping Hoosiers to assemble."

"During these challenging times, more people are turning to their religious communities for support and to stay connected to one another," Nisly said. "Placing restrictions only on church gatherings can isolate members and clearly violates their freedom of religion."

Official Opinion 2020-8 by Indiana Attorney General Curtis Hill Jr.

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