A hardline conservative power broker and three area pastors filed a petition with the Texas Supreme Court Monday arguing that Harris County Judge Lina Hidalgo’s stay-at-home order violates the Constitution by ordering the closure of churches and failing to define gun shops as “essential” businesses.

The emergency petition for a writ of mandamus, filed by anti-LGBTQ Republican activist Steven Hotze and pastors Juan Bustamante, George Garcia and David Valdez, contends Hidalgo’s order undercuts the First Amendment by limiting religious and worship services to video or teleconference calls. Pastors also may minister to congregants individually.

Hotze and the pastors argue the order also “severely infringes” on Second Amendment rights by closing gun stores. The order does not define gun shops as essential businesses, though Attorney General Ken Paxton issued an opinion Friday that stay-at-home orders cannot force gun stores to close or otherwise restrict sales or transfers.

Hidalgo’s order, issued March 24, requires most businesses to close and directs residents to stay home unless they are getting groceries, running crucial errands, exercising or going to work at a business deemed essential. The directive is aimed at slowing the spread of the coronavirus, and it came a day after chief executives at the Texas Medical Center unanimously called for the county to implement a shelter-in-place order.

Other counties, cities and states have implemented similar orders in a bid to “flatten the curve,” or prevent the virus and COVID-19, the disease it causes, from spreading so fast that it overwhelms hospital systems. Some Texas conservatives oppose the orders, with some arguing that the cost of effectively shutting down large swaths of the economy is too high. Many other large Texas counties have ordered churches to close and shift to online services under their respective orders.

Experts at the World Health Organization, Centers for Disease Control and Prevention, and around the country have stressed that in the absence of a vaccine, the best way to fight the coronavirus is to keep people apart.

Throughout the petition, Hotze and the pastors argue that “the circumstances presented by coronavirus do not excuse unlawful government infringements” and “the free exercise of religion...should not be sacrificed at the altar of political expediency.” They also contend that Hidalgo’s order “picks winners and losers.”

“People of faith are prohibited from worshipping in person, most private businesses are prevented from operating, gun shops are ordered closed, and people are not allowed to associate together in groups — these are some of the individual freedoms Judge Hidalgo has chosen to sacrifice,” the petition reads.

It goes on to list several exempted businesses, including liquor stores, yard maintenance crews, furniture suppliers and bicycle repair shops.

“Because her hand-picked losers have been shuttered, her self-identified winners are allowed to thrive while other private businesses are closed indefinitely,” the petition continues.

The court has given the county until Tuesday to respond to the emergency petition, according to Jared Woodfill, the attorney representing Hotze and the pastors.

Hidalgo spokesman Rafael Lemaitre declined to address “the specifics of the litigation,” but said: “Public health and science must drive our response, and the science is clear: If we fail to take adequate steps to mitigate the spread of COVID-19, people will die. We continue to urge folks to take this seriously.”

First Assistant County Attorney Robert Soard said county officials view the order as “necessary to deal with the extraordinary crisis that Harris County, Texas and the country are facing as a result of the coronavirus.”

Soard said the order does not intend to close gun stores and “we’ve not advised any gun stores to close, as far as I’m aware.” He also said Paxton’s opinion makes clear that gun shops in Texas will remain open.

As for the First Amendment challenge, Soard said there is “nothing in the order that prevents churches from broadcasting” services. He said Hidalgo crafted the order “as precisely or narrowly as she could to allow people to worship as they choose.”

The county attorney’s office was drafting its response Monday, he said.

University of Houston constitutional law professor Peter Linzer said the order is on firm legal standing because services may continue remotely over video, phone or one-on-one ministering.

“That is a distinction that any rational person should be able to recognize,” Linzer said. “There is a constitutional right to go to church, but that doesn’t mean it’s absolute. It’s not just a building, it’s not just its membership, it’s not just Sunday service. It’s pastoring and all the other things that go into the ministry — and all those things are still allowed.”

In Harris County, many churches preemptively ended in-person services before the county's order went into effect. Among those who acted ahead of the county was Second Baptist Church of Houston, where Hotze and Woodfill are members.

In Washington State, which has seen a significant number of cases, nearly every member of a 60-person church choir has tested positive or exhibited coronavirus symptoms after meeting for practice, according to the Los Angeles Times.

Meanwhile, the pastor of a megachurch in Tampa Bay, Florida was charged this week with defying the county's stay-home order by having two packed church services.

In a video posted to YouTube late last month, Hotze advised that people take multivitamins and not worry about the virus, which he said is "all media hype" and "fake news."

Hotze then compared the virus to the flu or dysentery, and accused Democrats of having "weaponized the coronavirus" to hurt President Donald Trump.

Marc Boom, CEO of Houston Methodist, called the lawsuit “disheartening” and “reckless,” and said it is “potentially endangering lives.”

"We’re still on the wrong side of this curve. The numbers are still going up,” Boom said. “They need to be going down before we loosen up the stay-at-home restrictions. Our political and business leaders are working together to loosen things up in a responsible way."

Lisa Gray contributed to this report.

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