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The federal agency argues Virginia’s limits on public gatherings could violate the Constitution.
The U.S. Department of Justice is supporting a Virginia church’s challenge of Gov. Ralph Northam’s executive order limiting public gatherings, arguing the order imposes limits on religious institutions that are not enforced on secular activities.
This is the second time the department has filed a statement of interest in a legal case challenging a state or local ordinance on the grounds of religious freedom. Attorney General William Barr last week directed two federal prosecutors to oversee efforts to review coronavirus-related ordinances that may violate religious, free speech or economic protections under the Constitution.
The Lighthouse Fellowship Church in Chincoteague sued the governor after the pastor received a criminal citation for holding services attended by 16 people—six over the state’s limit on gatherings of 10 or more people. The church, represented by the Liberty Counsel, argued that it was subject to unequal treatment under the ordinance because the state did not enforce any limit on the crowds of people shopping at local retail and grocery stores.
The Justice Department filing notes that Virginia does not necessarily have to permit the church to hold indoor gatherings, but that any restrictions “aimed at promoting social distancing cannot impose a greater restriction on religious gatherings than similar secular gatherings absent the most compelling, narrowly tailored reasons.”
“The United States believes that the church has set forth a strong case that the orders, by exempting other activities permitting similar opportunities for in-person gatherings of more than ten individuals, while at the same time prohibiting churches from gathering in groups of more than ten—even with social distancing measures and other precautions—has impermissibly interfered with the church’s free exercise of religion,” Justice Department lawyers wrote in a statement filed Sunday. “Unless the Commonwealth can prove that its disparate treatment of religious gatherings is justified by a compelling reason and is pursued through the least restrictive means, this disparate treatment violates the Free Exercise Clause, and the orders may not be enforced against the church.”
Lawyers for Virginia wrote in their own filing on Sunday that the Justice Department had misconstrued the nature of the governor’s orders and that they intend to present evidence from public health experts and others explaining why the gathering ban was essential.
At Northam’s press conference Monday, Rita Davis, the counselor to the governor, said the state believes “the governor’s authority was prudent, necessary and constitutional.”
A federal judge on Friday agreed the governor’s order did not target religious establishments and denied the church’s request for a temporary restraining order barring enforcement of the governor’s order even before the state’s lawyers had responded to the lawsuit. The church has appealed the case to the Richmond-based U.S. 4th Circuit Court of Appeals.
Norfolk-based District Judge Arenda Wright Allen wrote in her denial that it would not be feasible to impose the 10-person gathering limitation on other essential services.
“Imposing such restrictions on essential businesses would threaten adequate access to food, water, medicine, and other goods and services necessary to keep individuals and their families alive and functioning during this pandemic,” she wrote. “Many people would go without essential goods and services despite being in dire need of them.”
In another case involving restrictions on religious activity, a federal appellate court sided with a Kentucky church that had challenged restrictions that banned it from holding drive-in services. The U.S. 6th Circuit Court of Appeals on Saturday enjoined Kentucky Gov. Andy Beshear from enforcing orders that would prohibit the Maryville Baptist Church from holding drive-in services in the church’s parking lot. Parishioners gathered Sunday at the church for services.
Andrea Noble is a staff correspondent with Route Fifty.