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Attorney General Opinions

AG Curtis Hill: Governor’s COVID-19 guidance to faith institutions was unconstitutional

Attorney General Curtis Hill today issued an advisory opinion that says the governor of Indiana may not place restrictions on religious activities and organizations that do not equally apply to comparable activities and organizations.

Attorney General Hill issued the advisory opinion in response to an inquiry from state Rep. Curt Nisly, who asked whether the governor may issue such restrictions using emergency executive authority.

As part of his response to the COVID-19 pandemic, the governor in April issued guidance directed at faith institutions that said while church buildings and other physical locations for worship should be closed, church services could continue so long as they included 10 or fewer people. The guidance also provided parameters for drive-in services and voiced a preference for no communion.

The governor did not issue similar guidance for other essential businesses, the opinion states. The guidance “did not even attempt neutral treatment of religion compared with other ‘essential businesses and activities,’” according to the opinion.

The governor pulled back on the restrictions against faith institutions in a May executive order.

“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,” Attorney General Hill’s opinion concludes.

Download the entire document here: Official Opinion 2020-8

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