WASHINGTON — As the U.S. continues to combat the COVID-19 pandemic and congregations turn to livestreamed worship and drive-in services, some states have restricted church gatherings and singled out religious groups in a way that conflicts with First Amendment religious freedoms, prompting lawsuits and a response from U.S. Attorney General William Barr.
According to notes provided to the Register from a source who participated, Barr acknowledged in an April call with more than 500 faith leaders the need for some “draconian measures” to stop the spread of the novel coronavirus, but added that restrictions cannot single out religious activity and “cannot push rules on religious activity that you are not putting on other activity. …This is at the heart of the First Amendment.”
Barr said that there were some rules that “are singling out religion and putting special burdens on religion.” He cited a rule in Greenville, Mississippi, as an example where the Department of Justice (DOJ) filed a statement of interest siding with Temple Baptist Church after its members were issued fines of $500 each for attending a drive-in Easter service in which they remained in their cars.
Barr pointed out that the city still allowed drive-in restaurants so this was a case of targeting a religious community. The mayor later rescinded the fines and withdrew his order against drive-in services.
Barr said that he is “talking to U.S. attorneys in other states about things brought to our attention” and making sure they are complying with the Constitution, as “standing up for liberty is one of our highest priorities, my highest priorities.” And at the end of April, he issued a two-page memo emphasizing that “even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.”
“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID- 19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” he wrote in the memo.
In addition to the case in Mississippi, there have been quite a few instances of infringement on the religious freedom of churches in other states that are implementing various coronavirus restrictions. Most recently, the DOJ filed a statement of interest Sunday in support of Lighthouse Fellowship Church in Chincoteague Island, Virginia, that serves recovering drug addicts and former prostitutes who do not have easy internet access to stream services. After Gov. Ralph Northam’s ban on church gatherings of more than 10 people, the church held an April 5 service with 16 people in the Virginia church that seats 225. Officers threatened attendees with arrest, and the pastor is facing a fine of $2,500.
“For many people of faith, exercising religion is essential, especially during a crisis,” Assistant Attorney General Eric Dreiband for the Civil Rights Division said of the case. “The Commonwealth of Virginia has offered no good reason for refusing to trust congregants who promise to use care in worship in the same way it trusts accountants, lawyers and other workers to do the same. The U.S. Department of Justice will continue to monitor any infringement of the Constitution and other civil liberties, and we will take additional appropriate action if and when necessary.”
David Cortman, senior counsel at Alliance Defending Freedom (ADF), spoke to the Register about the difference between restrictions necessary for public health and restrictions that unfairly target religious gatherings.
“I think people have to keep in mind that the First Amendment isn’t suspended during times of national emergencies. So the Constitution still applies,” he said. “As our government officials on all different levels are trying to navigate the current situation, they have to keep in mind that it’s important to respect civil rights.”
Cortman said that when it comes to COVID-19 regulations, “some of the practical things to look at” include “how are you treating businesses and nonprofit organizations and churches in general.”
ADF filed a lawsuit on behalf of the Mississippi congregation cited by Barr. Cortman explained that in that case, the government was “basically allowing drive-in restaurants and drive-in bars and liquor stores but not allowing the same drive-thru services for churches, and so not only does that unequal treatment violate the Constitution, it doesn’t further health interests at all.”
ADF has filed six lawsuits related to COVID-19 restrictions and has been successful in four of the cases, with two still ongoing. Cortman referenced the case in Kansas, “where they were allowing some people in small numbers to get together, for example, in office buildings or meetings as long as you did social distancing with 6 feet apart and hand sanitizer, but they wouldn’t allow church services, even though they did the same social distancing.” In that case, Kansas Gov. Laura Kelly changed the executive order so it no longer singled out churches.
ADF’s two ongoing cases involve the arrest of pro-lifers in North Carolina who were peacefully praying and observing social distancing outside abortion businesses.
“In these few counties in North Carolina, you can go with no limitations into the abortion clinic, but they were arresting those people on the sidewalk for engaging in protected free speech activity even though they were also engaging in social distancing. So we filed two lawsuits in North Carolina,” Cortman said. “We’ve successfully challenged those restrictions there because, in that instance, you could walk — exercise has been allowed all over the country — so you could walk on the public sidewalk, you could go into the abortion clinic in whatever numbers you want, you can go to the park right next door, but you couldn’t be on the sidewalk 6 feet apart in front of the abortion clinic. That’s clearly a constitutional violation, in addition to targeting people of faith.”
Cortman said that “one of the mistakes some of the states have made is putting churches and religious worship and religious service into the nonessential category because spiritual matters, especially in difficult times, are just as important as anything else, and some would argue even more important. But when you try to put a worship service or a religious service in a nonessential category and treat them similar to whether we open up the bars or whether we open up something similar, that’s where the problem starts.”
Luke Goodrich, senior counsel at Becket, a law firm that specializes in issues of religious freedom, told the Register that in these cases, “one of the main considerations is whether the government is targeting or discriminating against houses of worship in any way or whether it’s treating them equally with all other types of assembly; and, if the government is placing stricter conditions on religious gatherings, then that is constitutionally suspect.”
Becket filed a friend-of-the-court brief in a case in New Mexico “where you had a large church and with New Mexico’s restrictions there was a question about whether the church could even do livestreaming.” Goodrich said Becket’s brief “pointed out that making sure that churches have enough staff to livestream services actually furthers public health because it allows people to worship safely from home.”
Looking Ahead to Reopening
Goodrich said that as states consider plans to reopen, “ideally, government officials should view religious services as essential and look for ways to permit religious practices as much as possible and as soon as possible, consistent with public health.”
When it comes to reopening, Cortman said ADF will be “watching how that happens, and when churches are allowed to meet, as compared to when schools open up, when movie theaters open up, when malls open up, when restaurants open up, because I think we’re going to see some additional constitutional violations as we’re winding down.”
“You probably will see a few instances where government officials are dragging their feet on protecting religious practices or using restrictions on gatherings as an excuse to target religious groups,” Goodrich said. “In those cases, it’s vital to remain vigilant, and I’d expect the courts to keep those misbehaving bureaucrats in line.”
“One of the biggest stories here is how many churches so quickly changed their practices dramatically and went to online streaming or basically stopped in-person gatherings that they’d been doing for many, many years,” he concluded. “It’s tremendous how many churches have sought to be good neighbors in that way, but at the same time, there’s a very real human cost — spiritual, emotional, mental cost — to not allowing people to gather for worship; so it’s vital that governments allow for that as soon as possible.”
Lauretta Brown is the Register’s Washington-based staff writer.