Capitol Beat OK

Attorney General Mike Hunter has questioned why Norman Mayor Breea Clark allowed gyms, tattoo parlors, and pet groomers to reopen on May 1 but has forbidden houses of worship from doing the same until mid-month.

At the same time, Mayor Clark has found herself embroiled in a federal lawsuit involving her decree that local hair salons could not reopen until mid-month as well.

“I want to remind Mayor Clark that there are important limits on local authority to restrict activity protected by state and federal law, especially any attempt to impose a mandatory block of religious gatherings or a closure of houses of worship,” Hunter said in a news release. “With updated state guidelines, religious services can go on as scheduled this weekend unless they are postponed or rescheduled by the religious institution itself.”

Clark’s multi-step reopening plan for Norman, dubbed the Healthier At Home Initiative, has three phases with two parts in Phase One. Part A, effective May 1, allows gyms, restaurant dining areas, pet groomers, golf courses, and massage and tattoo parlors to reopen with various restrictions on crowd sizes and access. Once she was successfully sued in local courts, hair salons were added to that list.

Under Phase One Part B, set for May 15, institutions allowed to reopen include houses of worship and youth sports leagues.

The state rules for reopening any of those facilities insist that all Centers for Disease Control recommendations be followed, including social distancing and hygiene. Hunter said those in charge of churches and similar institutions should follow those guidelines and “use good judgment and common sense when making the determination on reopening.

“Those planning to attend services should do the same,” he continued, “but the city cannot discriminate against religious groups by shuttering churches while allowing other establishments — such as restaurants, gyms, retail stores, hair salons, and massage and tattoo parlors — that pose the same or greater risk to open.”

Hunter’s release noted that “both state and federal law limit the mayor’s authority to restrict the free exercise of religion and for peaceable assembly.” He urged that she amend the plan to open churches on the same timetable as the other Phase One Part A establishments, with the same cautions and restrictions.

At the same time, Hunter cautioned churchgoers to stay home should they experience symptoms or if they have been in contact with a COVID-19 victim.

He had previously noted that “if the situation were to ever become so dire that that church services needed to be canceled by the government, all other similarly sized and situated gatherings would also need to be canceled as well.”

Mayor Clark responded to Hunter’s comments with a statement from the City of Norman which noted that “throughout its COVID-19 response, the City has acted to protect public health and safety with careful consideration of recommendations from public health experts, CDC recommendations for social distancing, and requirements of state and federal law.”

“And while we have often not received advice or input from the State, we welcome Mr. Hunter’s opinion on our current plan,” Clark added. “We will take it into consideration as we continue to ensure we are in compliance with state and federal laws and acting in the best interest of our residents.”

The Norman statement added that the amended proclamation “prohibits mass gatherings regardless of if they are religious or secular” and concluded that “constitutional rights have never been absolute. Rather, they are subject to a balancing with state interest. As noted by the U. S. Supreme Court as early as 1944, ‘(t)he right to practice religion freely does not include liberty to expose the community…to a communicable disease or the latter to ill health or death.’”

Clark’s initial response quoted in other news media was somewhat snappy and ended with an admonishment to Hunter to “Stay classy!”

Cities and states across the nation have offered differing timetables for reopening various establishments, but most have included churches and other houses of worship in the same reopening schedule as places like malls and other public facilities, albeit with capacity and social distancing rules remaining in place.

Oklahoma City’s revised timetable specifically included houses of worship among those institutions that could reopen May 1, with requirements for staggered seating and other safeguards.

The state plan announced by Gov. Kevin Stitt set a reopening date for houses of worship of May 1 but also required rigorous cleaning and social distancing. In addition, some churches have announced their own safety rules. The Catholic Archdiocese of Oklahoma decreed that elements of the Mass that traditionally included personal contact would be suspended.

The issue of closures for places of worship has been contentious from the beginning of the pandemic shutdowns. Some in Oklahoma, for example, questioned why churches were not considered essential and allowed to remain open while liquor and marijuana stores were.

In Kansas, Democratic Gov. Laura Kelly became ensnared in a court battle with state churches after her shutdown order appeared to unfairly punish churches while leaving exemptions to remain open for such places as abortion clinics. Kansas pastors were threatened with fines up to $2,500 and as many as 12 months in jail if they violated the governor’s order.

An ensuing lawsuit filed by the Arizona-based Alliance Defending Freedom (ADF) was finally settled when Gov. Kelly agreed to modify her order allowing churches to be treated as other institutions.

ADF senior counsel Tyson Langhofer noted in a statement on the group’s website that “singling out churches for special punishment while allowing others to have greater freedom never made sense and was never constitutional.” ADF voluntarily dismissed its suit after Kelly yielded.

Jeremiah Galus, senior counsel at ADF, said the Norman case is similar to the battle they successfully fought in Kansas in that it constitutes religious discrimination. “The Constitution is not suspended, even in times of crisis,” Galus said. “Unfortunately, this is not an unusual development. We are seeing unequal treatment of churches in a number of states where similar secular businesses like libraries and theaters are allowed to reopen and churches are not.”

Galus said ADF understands the need to suspend or limit some public gatherings in a time of pandemic, but he said it is a constitutional mandate that religious institutions be treated equally. “I think what they have done (in Norman) is unconstitutional,” he said.

Hair Salon Controversy

The hair salon issue emerged when at first three, and ultimately four, owners of local salons sued to force Clark to include their businesses in the initial May 1 wave of reopenings. They indicated that salons had been included in Norman’s Part B reopening list for May 15, despite the inclusion of salons in the May 1 list on the Governor’s proclamation and in all surrounding cities.

Cleveland County District Judge Thad Balkman ruled in favor of the salon owners, but Clark then asked that the suit be moved to federal court. As of May 6 hair salons were included in the list of May 1 reopenings on the Norman city website, with the notation “by appointment only.” That change was apparently made after Balkman’s ruling.

Mayor Clark noted that “although Judge Balkman issued the temporary injunction on Monday, the underlying case has not been resolved.” She added that an appeal to state court would serve no purpose because of time constraints.

“A federal court is better suited to determine claims under the equal protection clause of the U. S. Constitution,” Clark said. “This isn’t about me or hair salons or pandemics. The right of a municipality to protect the public health, safety, and welfare of its citizenry, especially in emergencies, is fundamental and we intend to do all we can to preserve that right.”

Asked about potential expenses of a protracted federal court battle at a time when Norman stands to lose millions in sales tax revenue due to the economic downturn from the pandemic, Clark said, “Removal cost $400.”

Note: Mike Brake is an independent journalist, and the author of a history of Putnam City Schools. His articles appear occasionally here on CapitolBeatOK.com, a news service based in Oklahoma City. This report first appeared at the website of the Oklahoma Council of Public Affairs (http://www.ocpathink.org/post/ag-hunter-to-norman-mayor-religious-services-can-go-on-as-scheduled). It is reposted here with permission. Brake’s past reporting at The Oklahoman included his page one story on the 1969 moon landing. In addition to stints in state government service, Brake has served as an adjunct instructor at OSU-Oklahoma City.

Attorney General Hunter to Norman Mayor: ‘Religious Services can go on as scheduled’