DELAWARE: GOP LAWMAKERS DEMAND EARLIER, WIDER REOPENING; CALL GOVERNOR CARNEY’S MOVES “UNCONSTITUTIONAL”
BY CHRIS BARRISH WHYY
republished below in full unedited for informational, educational and research
On Wednesday, Delaware officials reported 8,194 cases of the coronavirus, 310 related deaths and 220 current hospitalizations.
A chorus of downstate Republican legislators has taken aim at Democratic Gov. John Carney, demanding he reopen Delaware quicker and more broadly and asking U.S. Attorney General William Barr to review their claim that Carney’s shutdown orders have violated the constitution.
The complaints voiced in the two GOP letters reflect what has become growing disenchantment among some residents, business owners and politicians to Carney’s March 12 declaration of a State of Emergency in response to the coronavirus crisis. Thursday will mark 10 weeks that the emergency has been in effect.
“It is time to say, ‘Enough is enough.’ Your Phase One “reopening” of the Delaware economy is too little, and too late,’’ the letter from 15 state Senate and House members from Kent and Sussex counties wrote to Carney.
Among the moves the letter wants Carney to make:
- Move up the first phase of reopening statewide to Friday, the start of Memorial Day weekend, instead of his target date, June 1.
- Allow short-term rentals and stop blocking non-residents from coming to Delaware unless they quarantine for 14 days.
- Let churches, child care centers, youth sports and other activities return to normal.
- Audit hospitalizations and deaths in part because of “chatter in the medical community about deaths being classified as COVID-19 that perhaps should not be.”
“We urge you in the strongest possible terms to give people and business owners back their freedom and let them assume responsibility for themselves and their communities,’’ the lawmakers’ letter to Carney said.
The letter to Attorney General Barr was written by Sens. Brian Pettyjohn of Georgetown and David Wilson of Milford and Rep. Ruth Briggs King of Georgetown.
They contend that Carney’s emergency declaration and subsequent steps such as closing businesses, forcing visitors into quarantine and limiting public gatherings were “taken without legislative or judicial consent and without due process for the citizenry.”
One example they cited is Carney’s March 22 stay-at-home order except for work he deemed essential and shopping for necessary items such as groceries or medicine.
“This order strips the important constitutional rights of the citizens of Delaware,” amounts to “an unconstitutional restriction on travel liberties and imposes criminal penalties for actions not approved by the General Assembly.”
The letter charges that Carney “has usurped the authority’’ of citizens and Delaware’s legislative and judicial branches of government’’ and requests Barr’s “immediate attention to this broad, unconstitutional overreaching.”
Carney wouldn’t agree to an interview with WHYY about the letters, but criticized the one sent to him at his press briefing Tuesday.
Carney recently allowed non-essential retail businesses such as clothing and sporting goods stores to reopen with curbside service, and hair salons with strict sanitary guidelines and limitations. He’s permitting a limited reopening of beaches and boardwalks starting Friday for the holiday. Churches, which had been limited to gatherings of no more than 10 people, can open at 30 percent of capacity.
“I’m very disappointed in that letter,” the governor said. “It just sounds political. This is not a time for politics. This is a time when Delawareans pull together — Democrats, Republicans and independents … We’re a state of neighbors who treat one another like neighbors and we’re going to through this as neighbors.”
Carney said the letter contained “inaccuracies’’ he did not specify and noted that several Republicans did not sign it, “which tells me something in and of itself.’”
Nine of the 24 House and Senate Republicans did not sign the letter.
Republicans are in the minority of both chambers of the Delaware General Assembly and don’t hold a single statewide elective office in a state where registered Democrats far outnumber Republicans.
The governor derided the “divisive tone’’ and said he has been speaking regularly with many of the GOP lawmakers whose signatures are on it “and they never led me to believe’’ they objected so strenuously to his moves.
This is a situation like we’ve never experienced in our history,’’ Carney said. “It’s uncharted territory for all of us. We’ve tried to make decisions using the data and the science, to inform those decisions incorporating points of view across the spectrum.”
Carney spokesman Jonathan Starkey added that the GOP lawmakers “seem to be recommending the governor’s own strategy to him, saying he should be opening businesses as we can safely do so. That’s what the governor is doing. They know Delaware is implementing a ‘rolling reopening.’”
On the letter to Barr, Starkey said the GOP trio “expressed constitutional concerns to the federal government about Delaware implementing a contact tracing program. It was the federal government — the White House and the CDC — that recommended all states set up contact tracing programs before they safely reopen their economies.”
Republicans slam Carney, demand faster
Fifteen Republicans in the General Assembly are urging Gov. Carney to speed up the state’s reopening
Republican members of the Delaware House and Senate joined in a scathing letter to Governor John Carney today, saying results of the state’s shutdown had been “disastrous” and calling for a more aggressive lifting of pandemic-related restrictions imposed on businesses, churches and citizens.
Fifteen representatives and senators told Carney they were frustrated with being shut out of decision making and criticized “mixed messages and confusion.”
“We have fought tirelessly behind the scenes to impact the decisions you have made, largely because we believed that we needed to all be on the same team in combatting this virus. Unfortunately, our concerns have not been heeded and our suggestions have been adopted too late, if at all.”
Republicans signing the letter, including Senate minority leader Gerald Hocker and House minority leader Danny Short, came largely from Kent and Sussex Counties. The group said Carney had “favored large and powerful business interests over our local merchants” and his administration lacked individuals with business experience.
“Decisions over the future of thousands of Delaware small businesses [are] being made by a group of people who have little to no experience running a business, and to no one’s surprise, the results have been disastrous. The state needs to adopt a new decision framework – one that prioritizes opening those businesses that can be opened.”
The letter calls for specific actions, including beginning Phase One before Memorial Day weekend, lifting the short-term rental ban and the ban on out of state visitors, opening churches and allowing wider latitude for daycares, youth sports and camps.
“Our small businesses know how to operate safely. They know that the ultimate judge of their success will be public confidence. They just want a fair playing field in order to compete. It’s time to give them the chance to do so. It’s time to trust Delawareans to know what is best, and to act accordingly.”
The letter in its entirety follows below.
May 19, 2020
DELAWARE GENERAL ASSEMBLY STATE OF DELAWARE
411 LEGISLATIVE AVENUE DOVER, DELAWARE 19901
Governor John Carney
Carvel State Office Building 820 N. French Street, 12th Floor Wilmington, DE 19801
Dear Governor Carney:
We write today with extreme concern over the impact of the decisions that have been made so far by your administration in an attempt to combat the coronavirus. We have watched as your administration favored large and powerful business interests over our local merchants. We have seen businesses shut down and their owners threatened with criminal charges. And we have listened as mixed messages and confusion have caused panic and fear to spread far and wide.
We have fought tirelessly behind the scenes to impact the decisions you have made, largely because we believed that we needed to all be on the same team in combatting this virus. Unfortunately, our concerns have not been heeded and our suggestions have been adopted too late, if at all.
It is time to say, “Enough is enough.”
Your Phase One “re-opening” of the Delaware economy is too little, and too late. Delawareans and the businesses they love have given so much during this time, in order to flatten the curve and to give our medical system time to prepare for the long haul. We have met that goal, and hospitalizations are declining. Meanwhile, we have decisions over the future of thousands of Delaware small businesses being made by a group of people who have little to no experience running a business, and to no one’s surprise, the results have been disastrous. The state needs to adopt a new decision framework – one that prioritizes opening those businesses that can be opened.
Our small businesses know how to operate safely. They know that the ultimate judge of their success will be public confidence. They just want a fair playing field in order to compete. It’s time to
give them the chance to do so. It’s time to trust Delawareans to know what is best, and to act accordingly.
Move the start date for Phase One to Friday, May 22. Memorial Day weekend is one of the largest weekends of the year for many businesses, especially those at the beach. To cut that flow of business off in favor of an arbitrary June 1 date, despite evidence that the virus is receding in Delaware is a major mistake that will have devastating consequences for Sussex County, especially.
Remove the restriction on short-term lodging, and the blockage of visitors from other areas.
Hotels, motels, campgrounds and rental housing add to the ability of people to properly distance themselves. With delivery and innovation, we can boost our economy and keep people safe. People want to spend money here. Nearby locations like Ocean City are safely doing so. We need to do the same.
Open the churches. Church leaders need to have the leeway to make decisions for their congregations. They know the heavy weight of the risks, and they will do the right thing.
Allow daycares, youth sports and children’s activities to return to normal. No one can go to work if they have young children at home. Children have been proven to be less susceptible to the virus, and there are questions about their likelihood to be spreaders, as well. Give people the choice in whether or not to send their kids to daycare or camp. Outdoor play is good for the body and mind, and there is strong evidence that outdoor transmission of the virus is very rare.
Audit hospitalizations and deaths. There are many doubts and concerns that have been raised anecdotally about the quality of the data that is being reported. While we do not question the intent of the hospitals, DPH and DHSS, there is a great deal of chatter in the medical community about deaths being classified as COVID-19 that perhaps should not be. If there is a discrepancy in the data, it is in everyone’s interest to find out.
In the end, we all want what is best for the people of Delaware. But the time has come to express our opinion on how to reach the best outcome. We urge you in the strongest possible terms to give people and business owners back their freedom and let them assume responsibility for themselves and their communities. This virus will be with us for some time. It is up to all of us to adjust to its existence. We believe in the people of the state of Delaware. We hope you will join us.
Sen. Gerald Hocker (Senate Minority Leader) Rep. Danny Short (House Minority Leader)
Rep. Tim Dukes (House Minority Whip) Sen. Dave Lawson Sen. Brian Pettyjohn
Sen. Bryant Richardson Sen. Dave Wilson Rep. Rich Collins Rep. Ron Gray Rep. Ruth Briggs King
Rep. Shannon Morris Rep. Charles Postles Rep. Jeff Spiegelman Rep. Jesse Vanderwende
Rep. Lyndon Yearick
Group threatens lawsuit if right to worship isn't restored in Delaware
BY AMY CHERRY
They're calling themselves the "Committee to Save Christmas," and they're threatening legal action against the state and the governor if their right to practice religious freedom isn't restored soon.
The group is wishing to remain anonymous for now, fearing retribution, but attorney Tom Neuberger, who represents them, said its comprised of about a dozen pastors, businessmen, and political figures.
They sent a six-page demand letter to Governor John Carney on Wednesday, May 13, 2020, calling Delaware's State of Emergency and various modifications--which include stay-at-home orders, as well as bans on gatherings of 10 persons or more--a violation of the First Amendment.
"When it was Easter, out of fear of imprisonment, all the churches shut down for that most Holy day of the year, and the committee believes that that should never happen again. With eight months remaining before the celebration of Christmas, it's time for Carney to allow religious worship back again inside churches, synagogues, and mosques, provided socially distancing and other generally applicable health-related precautions are responsibly practiced by the church."
The committee noted in the last two months Delaware has moved to reopen secular businesses; some like barbers and hair salons, which were initially deemed non-essential, have re-opened their doors under strict guidelines.
"The big-box shopping, landscaping, laundromats, law firms, grocery stores [are all allowed to be open], but you can't have soul-sustaining activities, and this is discriminatory under the First Amendment of our Constitution--our very first freedom."
Churches and places of worship don't directly appear on a list of state-sanctioned "essential businesses." But "religious organizations" were deemed essential.
"You can go out to buy liquor, but you can't go to church on Sunday," said Neuberger. "Such a distinction cannot stand because if beer is 'essential,' so is Easter, and so shall be Christmas."
Neuberger believes Carney made "honest" mistakes in the threat of the public health emergency.
"He had to act in hyper-pressurized environment; it's been two months now. He can step back and think on these serious issues, and remove the serious precedents to our freedoms by stopping church services if people want to engage in social distancing and other safe practices that people are using in other venues."
Other states have seen lawsuits challenging emergency orders that closed places of worship. The 6th Circuit Court of Appeals in Ohio has issued two affirmations of religious freedom along with two District Courts in Kentucky, according to Neuberger, to allow for worship inside a church building.
The demand letter cites the Lighthouse Fellowship Church on Chincoteague Island, Virginia, whose pastor was allegedly threatened with jail time and a $2,500 fine for holding a 16-person church service on Palm Sunday, with social distancing guidelines in place. The church sued, and the U.S. Department of Justice has intervened to protect it from was called "illicit religious content discrimination." Matthew Schneider, the special U.S. Attorney reviewing state activities in this regard is quoted as saying:
"Unlawful discrimination against people who exercise their right to religion violates the First Amendment whether we are in a pandemic or not."
"Or, in the words of the U.S. Attorney General on April 27th, 'the Constitution is not suspended in times of crisis,'" the demand letter cites.
If Carney doesn't act soon, Neuberger said they'll file a lawsuit. He added he'd also challenge the stay-at-home orders which ban a person's right to peacefully protest.
"I'm saying that the criminalization of peaceful protests...has to be lifted," Neuberger said. "You're allowed to protest on the streets, in the parks, in front of Legislative Halls. There should not be a six-month jail sentence...hanging over your head if you've got the guts to go out and violate the law."
On May 1, as protesters gathered in both Wilmington and Dover, Governor Carney said at a bi-weekly coronavirus news conference he had concerns about the protests, but wanted to respect Delawareans' rights.
"Obviously, they have free speech rights and so you always want to be careful, particularly with respect to that, but they don't have the right to put other people at risk, which is what happens when they're gathering, kind of illegally," Carney said. "But I, just, as governor, don't want to go around looking for...fights. I just don't think it's productive. I want people to work together. I would rather that they gather to make the case with me in a kind of reasonable way, and I hear them. They have every right to do what they're doing. They do not have the right to do it in the way that they're doing it. That's counterproductive, I think, to pick fights. Obviously, we have to enforce some of the restrictions, and we've tried to do that respectfully, but seriously. And I think that's the most effective way to do it "
No one has been arrested for protesting stay-at-home orders in Delaware.
When reached for comment Wednesday, a spokesman for the governor said they've "presumably" received the letter and are reviewing it.
Read the group's full letter:
Pastor Tobe Witmer of Lighthouse Baptist Church in Newark was one of 174 Delaware pastors who signed a letter to Carney on May 16 urging him to reopen churches in the state. (Courtesy of Lighthouse Baptist Church)
Del. leaders face divided backlash over reopening houses of worship
BY ZOE READ
Delaware officials are facing a divided backlash from religious leaders, following an executive order allowing houses of worship to reopen, as long as they abide by several restrictions.
Some religious leaders say they should have the freedom to worship as they choose, while others say it’s too soon to open houses of worship under any conditions.
Gov. John Carney on Monday put out new guidance to worship leaders and congregants, encouraging them to continue virtual religious services and discouraging them from meeting in person.
Nonetheless, the governor allowed houses of worship to reopen as of Wednesday, so long as attendance is capped at 30% of fire occupancy requirements.
The guidance urges vulnerable populations like the elderly and those with underlying health conditions to stay home. Residents who do attend religious services must wear a face covering and maintain a six-foot distance from other congregants. Other requirements include disinfecting surfaces and offering hand sanitizer to congregants.
The decision to reopen followed complaints from some members of the religious community that their freedom of religion was being infringed upon, and a federal lawsuit asserting the closure of houses of worship discriminates against communities of color and low-income congregants.
Pastor Tobe Witmer of Lighthouse Baptist Church in Newark was one of 174 Delaware pastors who signed a letter to Carney on May 16 urging him to reopen churches in the state.
“A church, just by the very nature in scripture, requires face to face proximity through fellowship and interacting with each other, loving each other, worshiping together,” he said. “Livestream, we’ve been doing very successfully. But it’s not a proper substitute for what a church really is — that requires proximity.”
However, some religious leaders argue reopening houses of worship now flouts the advice of public health experts, and fear it could jeopardize public safety. The Centers for Disease Control and Prevention recommends states should not reopen until they see a downward trajectory of documented COVID-19 cases within a 14-day period. Delaware, which has had more than 8,000 positive cases, has not yet reported a downward trend.
According to the CDC, when two symptomatic congregants attended gatherings in a small Arkansas church in early March, 35 of the 92 participants later tested positive for COVID-19, which led to three deaths. Through contact tracing, an additional 26 confirmed cases were identified in the community.
“It’s too fast and too soon,” said Rev. Jason Churchill of St. Stephen’s Lutheran Church in Wilmington.
“These are folks who haven’t seen each other in over two months. They’re going to hug, they’re going to touch and shake hands, and it’s going to be very hard to prevent that without a solid plan put into place, and a couple days is not going to cut it,” he added. “I really worry that what’s going to happen is that this could potentially set us back two incubation cycles.”
Rev. Jason Churchill of St. Stephen’s Lutheran Churh interacts online with Bible school students. (Courtesy of Jason Churchill)
Rev. Christopher Bullock of Canaan Baptist Church of Delaware filed a civil action against the governor on May 19 calling for the reopening of houses of worship in the state. The complaint argues closures discriminate against Black churches and low-income worshippers, many of whom don’t have access to the internet to attend virtual services.
“The wholesale shutdown of religious worship has a severe racially discriminatory purpose and effect on the African-American faith community, which is made up of many small churches and their parishioners, without the wealth of white churches and their parishioners, who can so easily switch to services on-line,” the complaint reads.
The complaint also argues the shutdown order has caused the “deprivation of [Bullock’s] rights to the free exercise of religion, freedom of religious speech, religious assembly and religious association, as well as to be free of government establishment of religion under the First Amendment and to the equal protection of the laws under the Fourteenth Amendment.”
Bullock did not respond to requests for an interview.
Churchill said he agrees access to virtual services is limited for some worshippers, but argues it’s more important to protect his congregation. He notes that members of his congregation who don’t have internet access can call into his services.
“From all the data I’ve been looking at, lower income folks are affected more negatively by the virus right now. The access to health care, the access to testing, has been ravaging the lower socioeconomic communities and it’s compounded on top of that for people of color,” said Churchill, who plans to continue virtual services through the end of June and have medical professionals review his reopening plan.
“I took a vow in my ordination,” he said. “One of the vows we take is to do no harm, to not give false sense of security and no false hope, and I take that seriously. We’re responsible by the very nature of what we do to be sure we take all steps necessary to keep our congregation safe.”
Rabbi Michael Beals of Congregation Beth Shalom is the chair of the Delaware Council of Faith-Based Partnerships. He said religious leaders in the multi-denominational coalition are unanimously opposed to reopening. Beals’ services also will remain virtual for the time being.
“In Judaism, we have the idea of, ‘If you save one life, you save the entire universe.’ None of us would want to have one death on our hands because we prematurely opened up,” he said. “We were promised that science would lead — and this is politics leading. This is about people in the state who are louder than us who are pressuring [Carney] or threatening to sue him under the First Amendment — freedom of religion, freedom of gathering. It’s true, but at what cost?”
Beals said the governor has listened to the coalition’s anxieties about reopening, and believes the guidance strikes a balance between the polarizing opinions of different religious leaders.
Rabbi Michael Beals livestreams daily services to the empty Congregation Beth Shalom sanctuary in Wilmington. (Courtesy of Rabbi Michael Beals)
However, he said he’s concerned that if one religious leader decides not to reopen, they might be pressured by the public to do otherwise. Beals also worries restrictions, such as the 30% occupancy rate and the six-foot separation, might be difficult to enforce.
“The real issue is what type of people tend to go to churches and synagogues? It’s older people who tend to go to brick-and-mortar houses of worship. And who’s the most vulnerable for getting this disease? Older people,” he said. “So you’re taking the most vulnerable people in the population and opening up the thing they’re most likely to go to.”
Witmer said even though his church is reopening on Sunday, it will continue to offer livestreams, so those who don’t feel comfortable attending can watch from home.
He said his church will abide by the restrictions, despite the fact he sees some of them as an overreach. Witmer said the occupancy requirement will hurt small churches, and points to certain guidelines, such as the prohibition of hand-held microphones, as taking things too far.
“We want to respect and honor our government, but there is a great desire in the religious community for individual personal liberty to make these decisions on our own…,” he said. “There’s a fine line between being cautious and being full of fear of everything.”