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Bend councilors reject move to bar enforcement of state attendance caps on churches

Vote was 5-2: 'That's not how separation of powers work'

(Update: Adding video, councilors' vote, councilor, city staff discussion)

BEND, Ore. (KTVZ) -- Bend city councilors voted 5-2 Wednesday night to reject two colleagues' proposal to forbid the city spending any money to enforce Gov. Kate Brown's new restrictions on faith-based gatherings, agreeing with the city attorney that constitutional interpretations are best left to the courts.

In a brief news release Wednesday morning, Councilors Bill Moseley and Justin Livingston, now in their last month in office, said they would introduce a resolution that stated: "The City of Bend shall not use city monies, equipment, or personnel for the purpose of enforcing pandemic health policies, which single out and discriminate against faith-based organizations or members thereof."

They said they "believe the timing of passing this resolution immediately is important," due to last week's U.S. Supreme Court 5-4 ruling barring restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.

They also noted Gov. Kate Brown's current statewide "freeze" and her new metrics that are to be implemented Thursday that the councilors said treat religious institutions differently from other sectors."

"So right now, under the governor's order for instance, my church would be capped at 100 people," Moseley told NewsChannel 21. "But if it were the same-sized shopping mall, it would be 625 people that would be allowed."

"So people are being singled out because they're praying inside, instead of shopping. And that's just not allowed under our Constitution," Moseley added.

Under the new state framework taking effect Thursday, faith institutions and funeral homes in the 25 of 36 counties deemed at "extreme risk" due to COVID-19 cases can have 25% of full occupancy indoors, or 100 people total, whichever is smaller. They can have an outdoor capacity of 150 people, and all services are limited to one hour.

But Mayor Sally Russell noted that the proposed resolution didn't go through the council's process to get on the agenda, so instead, the pair offered their motion toward the end of the night, during the section of the agenda called "council action and reports."

City Attorney Mary Winters set the stage, saying she didn't want to get into "a big legal discussion," but instead lay out concerns about councilors stepping into the typically judicial role of interpreting the First Amendment's right to free exercise of religion.

She noted that the Supreme Court's closely watched decision granted a temporary injunction but focused on the specifics of the New York case, where the governor's order was "extremely strict," with caps of only 10 or 25 people, even in churches that could hold 1,000 people. "That seemed highly unreasonable to the majority," Winters said.

The court also compared to the much less restrictive rules for secular businesses, finding it discriminatory when many businesses were allowed to be completely open, and schools as well -- "not the same factual situation."

Winters said city attorneys advise counselors on issues of concern such as panhandling, and present court rulings that closely mirror the proposed action.

"What we don't do is to not follow a state law or state order," she said. "That is something we have not done. We would be very concerned if the city council, as a legislative body, wants to state making constitutional interpretations on its own. That's what should go through the courts."

Moseley said his motion focused on "expenditure of money. If that's not the very definition of policy-setting, I don't know what is."

But Winters responded that Mosely was proposing to "not have a law enforced. You have budgetary authority, (but) it's more of a back-door way of sending a policy directive," comparing it to a councilor saying, "I don't think we should go after speeders."

Moseley said he'd have brought the proposed resolution up through the normal process, but the governor's new order takes effect Thursday and the Supreme Court ruled last week.

"It's needed action on an urgent basis," he said.

Moseley again noted the different allowed capacity for faith-based groups, a 100-person cap on his church, when even at 25 percent capacity, that would allow over 300 people. He noted all the steps his church takes, from roping off two of three rows, requiring masks and distancing, sanitizing between services.

"They have no problem with the health (requirements)," he said.
Moseley said churches are "just being singled out, based on faith. Some say, 'Hey, this is just like a movie theater' - no, it's not. Movie theaters are not protected under the Constitution -- but my religion is."

Winters noted that some facilities, such as theaters, have even lower caps, and that courts would compare the rules for churches to secular activities.

"From what I've seen so far, what Oregon ahs done would seem to pass muster," she said. "If churches want to challenge it, that's what they should do."

But to have police not enforce state orders: "That's not how separation of powers work," she said.

Moseley brought up the city's stand against enforcing federal immigration policy, but Winters said the resolution declaring Bend a "Welcoming City" is paraphrasing state statute that already exists. "That's a different thing than saying, 'We're not going to follow state law.'"

Livingston noted that some churches meet in retail spaces, yet have lower capacity limits than a retail store next door. "That disparity is wrong," he said, also bringing up the council's direction not to spend city funds enforcing immigration law. "That's a federal law," he said. "We need to be consistent. I don't believe we are."

"We need our churches," Livingston said. "We need them to be active and participating amid this pandemic."

Councilor Genna Goodman-Campbell said she did not support the motion, nor did colleague Chris Piper or Russell.

"We are in the middle of a pandemic," the mayor said, "and I think if we have a problem, if a faith institution or any other group …. appealed this at the state level, I think that's the place where these conversations should be held."

"Whether to enforce or not enforce, I think our job is to follow the laws at the state or federal level. I don't think it's responsible to not do that," Russell said.

But she and colleague Bruce Abernethy said it had been a good conversation to have. In fact, Abernethy said he'd talked to Moseley on the phone and "was leaning toward supporting" the motion, but based on Winters' laying out of the legal issues and council roles, "we could call this premature or not necessary a role council should be taking."

Russell noted that councilors had signed a letter to the governor, urging her to open schools to K-5 students Jan. 4, but "this isn't our jurisdiction."

City Manager Eric King said he'd asked the governor's office to explain the disparity in rules for faith-based gatherings.

"The rationale is the amount of time people spend together is different than in retail - they are in close proximity for a longer period of time, and science shows more likelihood of spread" of the virus in that situation, King said.

Moseley decided earlier this year not to seek re-election, while Livingston lost his race a month ago to challenger Melanie Kebler.

Bend / Central Oregon / Government-politics / News / Religion / Top Stories

Barney Lerten

Barney is the digital content director for NewsChannel 21. Learn more about Barney here.



      1. Oh how crazy it must be to always have the word Trump first and foremost on your mind, that is the first word that pops into that little mind of yours in the morning, and the last word you try to forget, as you are trying to fall asleep at night, very funny. It does sound a lot like your heartbeat though, Trump trump, Trump trump, Trump trump, FUNNY;)

  1. Real religious freedom will be reopening the temples and churches completely because they arent super spreading bat flu anymore because bat flu has been stopped

    1. Your religion is a barbaric middle eastern horror story. One of these days you’ll actually read the ENTIRE book. Seems “god” acts like the barbaric desert tribe that created him. Keep ignoring the parts of your”holy” book that make you feel uncomfortable.

  2. OMG – what an absolute waste of everything. Your religion is not more important than eating in a restaurant. Health code should apply across the board. This ‘we’re so persecuted’ crap is ridiculous.

      1. I don’t believe in any organized religion. I treat ALL of them exactly the same because they are all the same. Mythology. I respect everyone’s right to believe what they want and pray how they want. I want our government to not have anything to do with religion. One should not have an impact on the other.

      2. Its actually called a “mosque” in our english language comrade, and yes they should be gladly following the same health codes other buildings follow, we are all in this together after all

        1. I know what a Muslim house of worship is called. What I’m saying is that you don’t have the guts to direct your vitriol towards them because you are selective and scared. Let the people congregate and pray together if they want, you can choose to no go.

    1. While congregating now is certainly dumb, it makes me too uncomfortable to ban assembly–and even more so to ban religious assembly from a First Amendment standpoint.

      But yes, “persecution” is over the top. Religious folks can still Zoom, YouTube, or Twitch. We’re not throwing people in jail because they’re Christian.

    2. Really? tell that to the parishioners that have had their places of worship torched, shot up, and the congregants murdered. And after being subject to these atrocities countless times, to have the government join the fray is almost as disgusting as you!

    3. How can you not see their point. Its exactly what you’re talking about. Why can’t you socialists understand that equality is about equality for everyone, uncluding restaurants and churches. I’ll bet your a school teacher.

      1. Not in a pandemic. Not with public health rules and regulations. Equality is focused on giving every an equal chance to LIVE. Nice try though….. your last sentence weakened your argument.

  3. Regarding Religious Freedom in BEND OREGON and the Rest of Oregon
    Oregon Constitution states.
    Section 1. Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper.—
    Section 2. Freedom of worship. All men shall be secure in the Natural right, to worship Almighty God according to the dictates of their own consciences.—
    Section 3. Freedom of religious opinion. No law shall in any case whatever control the free exercise, and enjoyment of religious [sic] opinions, or interfere with the rights of conscience.—

    US Constitution states
    First Amendment
    First Amendment Annotated Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

        1. Google previous news articles concerning congregations that refused to follow CDC and other guidelines and the result. There have actually been quite a few over the last ten months. Trust in the Lord. All others insist that they mask up, wash up, and distance.

    1. Religious people do not worship a building. They can continue to worship at home, outside, on the phone, on TV, on anything technology offers. Quit complaining. This is not about religious freedom at all. This is not a First Amendment issue at all. It is a public health issue. Christians self centered??? Nah…..

    2. Finally a person who understands the Constitution of the US and its Amendments.
      Geez, I thought they were all dead lately.
      Freedoms enumerated in the Bill of Rights are NOT NEGOTIABLE, Period.
      Don’t ask me, ask SCOTUS.
      Any fool who would voluntarily cede their rights doesn’t deserve them in the first place but, funny thing, the rest of us will even defend your right to be slaves, if you choose.

      1. And, is addendum, the US Supreme Court Knocked down Emperor Newsomes ban on Church services as the ban is UNCONSTITUTIONAL.

        You would think lawmakers and govenors and the like would have, at least once have read the Constitution and Bill of Rights.
        Just once.

        1. The specific facts of any given restriction matter. That’s really the whole point of the jurisprudence on the issue. That some current restrictions overstep the bounds doesn’t mean that all do.

  4. It’s all about the offering plate. Just Zoom your worship and tithe to Paypal. The holy rollers will be happy. You are not Daniel. You’re not being tossed in a lion’s den. You’re not persecuted for your faith. If you were to be persecuted, it should be for being an idiot with no common sense who thinks a little inconvenience for the sake of others it too much to bear. Which is a most decidedly Un-Christian way for followers of Christ to behave.
    If God truly is everywhere, he doesn’t need you to be in a building to hear you sing off key, act friendly to people you normally badmouth and shun, and doze off while the preacher gives his sermon. Grow up and stop trying to prove a ridiculous point and stick it to the government.

    1. Spot on – people can mail their donations. Churches can get creative and set up Paypal, Stripe, etc and make it easy for folks to donate. People can call certain phone numbers and listen to a pre recorded service. Lots of options. This is the right wing saying yet again it is about stopping First Amendment rights. AND. IT. IS. NOT. Public health issue. Period.

  5. For sure, more focus on fake perceived equity issues and higher taxes and more talk about affordable housing fixes which by the way is nothing more than a supply and demand issue. How about working on more money for buses that take nobody to nowhere. Thanks for another headache Spike and all the rest of you socialists out there.

  6. How stupid. Comparing people shopping for necessities and people getting their things and leaving and not congregating at all like in church. Really dumb comparison and is completely apples and oranges. Some more Trump like politicians turning themselves and Christians into the victims again. What a bunch of privileged whiners. I am so glad these two clowns are on their way out, especially Moseley.

    1. That’s perfectly fine for those that CHOOSE to worship that way. Free people have a choice.

      But that does not change the fact that the Constitution does not say “Unless Zoom meetings are safe and available Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

      Get it? Rights are not conditional on the whims of government officials nor the other options the people may have for the time, place and manner in how they exercise them.

      1. OK, I’ll bite. The apocryphal right to “shout fire in a crowded theater.” Don’t ALL rights have some degree of limits, based on the necessary, generally agreed upon protections of public safety?
        Sure, we can argue endlessly over where those lines should be drawn. (Call the rulings we agree with a triumph of wisdom, the ones we don’t “activist judges rewriting the Constitution,” etc.) But not whether there should never be such lines, IMHO. They are a natural outgrowth of something called “community well-being,” which many don’t seem to care about or believe in any more.
        If we could set – and not disagree on – the limits of our rights, courts would have a lot less to do. But they get to make judgment calls, sometimes very difficult ones. Sort of like… me, Mr. Moderator.

        1. The reality is that the courts have made clear that no right is absolute (with good reason—when rights conflict, it is impossible to allow them to both be absolute), but that infringing on constitutional rights requires justification under higher levels of scrutiny than other government regulation (with a focus on how compelling the need is and whether the infringement is not more onerous than necessary to serve that need). I’m all for people caring about rights, but these arguments from profound ignorance are just one example of how successful the “conservatives” have been in creating drama queens whose degree of indignation about a topic far outstrips their willingness to actually learn about it.

            1. Good, but Moseley, at least, is a lawyer, and this is basic stuff that he must have already known. He was being disingenuous, using this classic conservative posturing to score points with the ignorant.

        2. Apples and oranges argument there. It’s just another timeworn attempt to justify all things unconstitutional by drawing a false equivalence to “shouting fire”. “Shouting fire” is a deliberate act intended to cause panic (with an expectation of injury) among people that have no choice about being in the circumstances. Essentially it’s a form of assault.

          Attending church is nothing of the kind. It is a voluntary act that only willing participants engage in. It is absent of any intent to panic or cause injury. Even the risk of injury (the level of which is debatable) is indirect.

          It’s a slippery slope to consider trading our liberties for a largely illusionary sense safety, or as you say “community well-being”. All manner of historical horrors began with similar such justifications. That is exactly why our Constitution was written to limit the authority of government – not the people.

      2. I have a right to live. Your right to worship does not trump other rights. No one is saying you can;t worship – just not in a building. Go ahead and worship. No government has told you to stop.

  7. Amazing spectacle here in the 21st century. What part of “free exercise” is so hard to comprehend? The text is perfectly clear, both at the state and federal level. Just because you personally disagree with it, or think it’s stupid, does not make those who stand by the written constitution and claim the very freedom it is designed to protect a bunch of wackos. Picking and choosing based on your personal feelings or fears won’t protect anybody’s freedoms in any context. If you don’t like it, work to change it. But until then, hands off. The people have a constitutional right to peacefully assemble and worship, and government is specifically forbidden to prohibit or interfere.

      1. Too many seem to not understand that the separation of church and state clause is specifically so that the state can’t mandate its own church – everyone has the freedom to worship, or not, as they see fit and where they choose instead of having to attend the Church of Oregon or the Church of the US

    1. The part that’s difficult to comprehend is the part that’s ambiguous. Churches have had maximum capacities for decades, and I haven’t heard a peep of complaint about that.

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