The full extent and impacts of emergencies, disasters or other cataclysmic events are by their nature frequently unforeseeable, and often they expose a need to reexamine the framework of laws and regulations in place to address them.
A case in point is the COVID-19 pandemic. In many respects, New Hampshire’s provisions for dealing with the state of emergency have held up well. Those laws, which place essentially authoritarian power in the governor’s hands to act unilaterally during a state of emergency, were mostly enacted by the Legislature in contemplation of nearer-term security threats following the 9/11 terrorist attacks and less in anticipation of a public health emergency that has now stretched over a year. It would be appropriate to revisit those provisions in light of the COVID-19 experience to ensure they strike the right balance between enabling the state to respond quickly and effectively in the public’s interest and not overreaching beyond the authority necessary. And an increasingly restive Legislature, feeling shut out of its constitutional role while Gov. Chris Sununu continues to extend the COVID-19 state of emergency, is now considering legislation to curtail a governor’s state of emergency powers in some respects.
The temptation to overreact is great, however, and a bill that has passed the House and is now before the Senate seeks to address concerns about how churches and other places of worship have been treated during the state of emergency with sweeping provisions that reach well beyond only emergency situations. The backers of the proposed legislation, House Bill 542, say that religious gatherings were improperly limited under Gov. Sununu’s emergency declaration. His order originally limited them to 10 people, before raising the limit to 50 and, more recently, removing the limit entirely. HB 542’s proponents say churches, synagogues and other places of worship should be deemed to provide essential services and should have the ability to operate as any other essential business during a state of emergency.
There’s certainly room for an argument that Gov. Sununu went too far in imposing restrictions that allowed greater freedom to operate during the pandemic to, for example, the state’s liquor stores than to churches. But instead of addressing only that concern, HB 542 also includes sweeping provisions, wholly unrelated to a public health or any other state of emergency, that have the potential to override other important individual protections and empower non-religious organizations to cite religious beliefs to avoid state anti-discrimination laws.
The bill’s principal sponsor, Rep. Keith Ammon of New Boston, feigns surprise and dismay that anyone would think the bill goes beyond addressing how churches are treated during states of emergency. That rings hollow, since the lengthy recitation of the legislative findings and purposes in the bill barely mentions a concern about the state of emergency declaration, and the bill instead would expansively grant rights to individuals, businesses and other organizations as well as houses of worship.
The overbreadth of HB 542 has drawn concern not only from anti-discrimination advocacy groups in the state, but also from the state Attorney General’s Office. In particular, Sean Locke, director of its Civil Rights Unit, said in a N.H. Bulletin report that HB 542 “would allow secular businesses and secular service providers to cite religious beliefs and evade compliance with the state’s anti-discrimination laws, which provide protection from discrimination in employment, housing, public accommodations, and public education.”
Whether the state of emergency provisions relating to restrictions placed on houses of worship in public health or other emergency situations need revising is a legitimate policy debate. But in its present form, HB 542 seeks to drive home a nail with a jackhammer and will cause irreparable damage. Ammon told N.H. Bulletin, “[t]here’s no intention of the bill to allow for the discrimination in the public sphere.” That may or may not be what he thinks his bill means, but it’s clearly not what the bill says. If the Legislature doesn’t vote the bill down entirely, it should amend HB 542 to limit its scope to address only how houses of worship are treated under state of emergency rules.