The latest Coronavirus order from Governor Tony Evers’ Administration is to ban most gatherings of ten people or more. Aside from shuttering the bars on St. Patrick’s Day, Evers’ administration also cancelled religious services across the state.

The Milwaukee Archdiocese already was closed due to fears of spreading the virus and the Madison Diocese was also closed due to the fifty person gathering rule last week. Catholic Churches and others are resorting to live-streaming temporarily in place of regularly scheduled church attendance.

However, does the governor’s administration have the authority to close down churches, especially when other exceptions are being made?

Rick Esenberg, the President and General Counsel for the Wisconsin Institute for Law & Liberty, told Steve Scaffidi of WTMJ-AM a possible constitutional issue with the governor’s order.

“At this point, I believe that an order that limits gatherings of 50 or more people is going to be upheld by any court,” said Esenberg in the interview on Tuesday. “There is a problem in the way that the order that the governor issued yesterday is structured in that it treats churches less favorably than some other forms of organizations.”

Esenberg pointed out that a public gathering in a library is allowed while churches are not exempt.

“This then implicates the state’s constitutional guarantee of worship. Is this being infringed?” Esenberg said. “And it might be, if in fact, other forms of gatherings are permitted while church gatherings are not.”

Esenberg conceded that there might not be churches willing to fight the ban on public gatherings given the Coronavirus outbreak. “It’s pretty much an academic question,” Esenberg said.

However, state Sen. Dave Craig (R-Big Bend) took the case to the Evers Administration directly in a letter to the governor on Tuesday. In the letter, Craig reminded Evers that the freedom of religion is enshrined in the state constitution.

“As state government takes steps to protect the well-being of Wisconsinites, it is also important that state government not infringe upon fundamental rights of our citizenry, including the free exercise rights of individuals seeking to worship according to the dictates of their conscience,” Craig wrote. “This includes many religions that worship sacramentally and in concert with others of their faith. The rigidity of this order makes it functionally impossible to exercise religious freedoms specifically protected under the State and U.S. Constitutions.”

In the letter, Craig asked Evers to make the appropriate exemption for religious gatherings:

Given the rapidly escalating pace of governmental efforts to stem the tide of COVID-19, I am asking that, in order to preserve the free exercise rights of Wisconsinites, the administration consider options to provide: (1) a narrowly-tailored accommodation, as constitutionally required, be given when a place of worship can facilitate worship while providing for safe social distancing or (2) specific information as to why such an accommodation cannot be given.

He added that the state has a responsibility beyond protecting the physical well-being of its citizens.

“Along with providing for physical security, government must accommodate the free exercise of individuals to engage in congregational worship,” Craig said.

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