Connecting state and local government leaders
The Justice Department lays out its plan to proactively monitor state and local ordinances and take action to correct those prosecutors believe are unconstitutional.
The city of Greenville, Mississippi found itself in hot water earlier this month after city leaders banned churches from hosting drive-in services as a means to stop the spread of the coronavirus.
Temple Baptist Church, where police issued $500 fines to parishioners who attended its drive-in services, sued the city to challenge the ordinance. Then the U.S. Justice Department got involved, siding with the church and filing a statement of interest in the case that said it appeared the city “singled out churches for distinctive treatment not imposed on other entities.”
The Greenville ban on drive-in services, which has since been repealed, is the type of potentially unconstitutional ordinance that U.S. Attorney General William Barr warned federal prosecutors to be on the lookout for amid the coronavirus outbreak.
This week, Barr assigned two federal prosecutors to oversee and coordinate efforts “to monitor state and local policies and, if necessary, take action to correct them.” In a two-page memo sent to all 93 U.S. Attorney’s Offices across the country, Barr highlighted the DOJ’s concern over restrictions that could violate religious, free speech, or economic rights protected under the Constitution.
“Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis.”
Some governors’ stay-at-home orders have included restrictions on religious gatherings, either limiting the number of attendees or listing religious services as non-essential and thereby banning them outright. As of April 24, 10 states have orders preventing in-person religious gatherings in any form, according to the Pew Research Center.
Legal experts said state and local ordinances that restrict the activities of religious institutions more than secular businesses or organizations could all be in the Justice Department’s purview.
“They shouldn’t be singling out religious institutions for special negative treatment,” said Richard Foltin, a senior scholar with the Religious Freedom Center of the Freedom Forum Institute.
Some states are already rolling back stay-at-home orders that limited religious and other activities as they slowly reopen their economies. In Montana, churches on Sunday were able to open their doors for the first time in a month as the state loosened its restrictions. Elsewhere, lawsuits challenging restrictions on the activities of religious institutions are starting to accumulate.
Liberty Counsel, a public interest law firm that promotes litigation related to evangelical Christian values, has filed lawsuits on behalf of churches in Kentucky and Virginia. The group intends to discuss both cases with federal prosecutors in a bid to get the Justice Department’s backing, said Chairman Mat Staver.
Barr has previously indicated that the Justice Department primarily intends to support legal challenges against potentially unconstitutional ordinances by filing “statements of interest” in those cases rather than bringing its own lawsuits.
One of the lawsuits filed by the Liberty Counsel challenges Kentucky’s enforcement of its ban on mass gatherings, including in-person religious services. Prior to Easter weekend, Gov. Andy Beshear warned that churchgoers who didn't obey the ban would be identified through their license plates and told to self-quarantine for two weeks. The Maryville Baptist Church held an in-person Easter service and residents whose vehicles were seen at the church received letters indicating they needed to quarantine or they would face further sanctions.
On Tuesday, the state’s Attorney General threatened to sue the governor unless he rescinds the order prohibiting in-person church services.
Beshear has defended the ban, saying church leaders can hold online or drive-in services in parking lots so long as people remain in their cars.
“This work—this opportunity to worship, which is so important, is still there,” he said. “We just ask people to choose one of the versions that doesn't spread the coronavirus, and I think that's what our faith calls us to do."
The Liberty Counsel also has challenged the legality of criminal charges lodged against a Virginia pastor after his church held services attended by 16 people, six people over the state’s ban on gatherings of 10 or more. The lawsuit alleges the enforcement against Pastor Kevin Wilson and Lighthouse Fellowship Church amounted to unequal treatment, comparing the number of people in attendance to the crowds of people at local stores and even the number of people who attended one of Gov. Ralph Northam’s recent press conferences. The church does not have the technical capabilities to hold online or drive-in services and took extra precautions to protect and separate congregants who gathered in a sanctuary that can hold almost 300 people, the lawsuit said.
State and local governments should take seriously the Justice Department’s warning about coronavirus-related orders, Staver said. When the department files a statement of interest, as it did in the Greenville, Mississippi case, it can provide a big boost to the plaintiffs.
“It puts the largest law enforcement agency in the country on the side of the Constitution,” Staver said. “It’s a formidable force.”
So far the Justice Department’s actions are limited to a case in which a house of worship was singled out for disparate treatment, but it could be possible to challenge states’ broader classification of religious institutions as non-essential, said Foltin. And states could face an uphill legal battle in court.
“There is a heavy burden on any state that says we are going to consider an array of secular businesses to be essential and religious institutions not to be essential,” he said. “Houses of worship provide enormous value to society in terms of comfort and the ability to deal with difficult times.”
Andrea Noble is a staff correspondent with Route Fifty.