Oregon Governor Kate Brown said no way and vowed to appeal.
BAKER CITY, Oregon (CN) — Oregon Governor Kate Brown’s emergency closures due to the Covid-19 pandemic were briefly up in the air Monday when a county judge pronounced them unconstitutional. But Brown vowed to fight to keep her orders intact.
A group of churches led by Elkhorn Baptist Church sued the governor May 6, claiming her March 23 stay-at-home order, and its subsequent extension until July 6, is longer than the Oregon Constitution allows. The churches claim the order violates their free exercise of religion by barring nonessential social and recreational gatherings.
Despite their misgivings, the churches said they were following the governor’s order because social distancing was nearly impossible within their buildings, and they thought the orders to close would be temporary. They also noted they had initially shared the governor’s fears that the virus would ravage vulnerable and elderly populations, but came to believe the risk is “minimal” because rural parts of Oregon like Baker County have seen very few cases of Covid-19.
On Monday, Circuit Judge Matthew B. Shirtcliff sided with the churches, issuing a preliminary injunction that would have allowed them to open. Shirtcliff noted Brown “has an enormous responsibility” to protect Oregonians during the pandemic but said social distancing measures can be practiced at churches just as they are at other businesses deemed essential.
“The public interest is furthered by allowing people to fully exercise their right to worship and conduct their business,” wrote Shirtcliff, a long-time Baker County district attorney until Brown appointed him to the bench in November.
Brown quickly asked the Oregon Supreme Court to issue a peremptory writ of mandamus vacating the injunction or an alternative writ of mandamus directing the court to vacate the injunction or show cause for not doing so, and also asked the court to stay the injunction pending consideration of the mandamus petition.
In a three-paragraph order Monday night, the Oregon Supreme Court granted Brown’s emergency motion to stay and ordered the plaintiffs and intervenors to respond to the mandamus petition by May 22.
“The science behind these executive orders hasn’t changed one bit,” Brown said in a statement earlier Monday. “Ongoing physical distancing, staying home as much as possible, and wearing face coverings will save lives across Oregon.”
She said the state’s gradual reopening, which began this past Friday, is only possible because of the extreme measures citizens had taken to prevent the spread of Covid-19.
“Reopening the state too quickly, and without ongoing physical distancing, will jeopardize public health and cost lives,” Brown said. “We would be faced with the prospect of another mass outbreak without the tools that have proven to be effective in protecting our friends, families, neighbors, and loved ones from this disease.”
Shirtcliff found the Oregon Constitution only allows such emergency closures to last for 28 days, and only in response to a “catastrophic disaster.”
“Clearly the coronavirus pandemic fits this definition,” Shirtcliff wrote in his ruling.
But he took issue with the length of Brown’s order and with her unilateral approach to extending it.
Her March 8 statewide emergency, initially slated to last for 60 days, was followed by a March 23 stay-at-home order. On May 1, Brown extended the state of emergency until July 6.
Shirtcliff wrote the state constitution requires the Legislature to extend such emergency powers beyond 30 days.
The Legislature is not currently in session, but the constitution allows lawmakers to convene remotely in such situations. Extending the emergency powers would require three-fifths approval by lawmakers, Shirtcliff wrote.
But Oregon Attorney General Ellen Rosenblum said in a statement Monday that Shirtcliff’s line of reasoning was “legally incorrect.”
“I urge Oregonians to continue to comply with the measures in place,” Rosenblum said. “They are there to protect all of us, and they are working.”