“As important as it is that we stay safe during these challenging times, it is also important for states to remember that we do not abandon all of our freedoms in times of emergency…Unlawful discrimination against people who exercise their right to religion violates the First Amendment, whether we are in a pandemic or not.”
The Department of Justice today filed a Statement of Interest in a Virginia federal court concerning the First Amendment’s freedom of religion in support of Lighthouse Fellowship Church (Lighthouse), a congregation in Chincoteague Island, Virginia, that serves, among others, recovering drug addicts and former prostitutes.
The Statement of Interest is part of Attorney General William P. Barr’s April 27, 2020 Initiative directing Assistant Attorney General for Civil Rights, Eric Dreiband, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.
In response to the COVID-19 pandemic, Virginia’s governor issued executive orders that ban in-person religious services of more than 10 people while permitting such gatherings of workers in any non-retail business and an array of retail businesses, including liquor stores, dry cleaners and department stores. Violations of the orders allow for criminal charges and carry penalties of up to a year in a jail and a $2,500 fine.
As alleged by Lighthouse, on April 5, 2020, the church held a sixteen-person worship service in its 225-seat sanctuary while maintaining rigorous social-distancing and personal-hygiene protocols. At the end of the service, the Chincoteague police department issued Lighthouse’s pastor a criminal citation and summons, based on the governor’s executive orders. Lighthouse filed suit and on Friday, the district court denied the church’s request for preliminary relief, stating in part that “[a]lthough [professional-services] businesses may not be essential, the exception crafted on their behalf is essential to prevent joblessness.”
“For many people of faith, exercising religion is essential, especially during a crisis,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “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.”
“As important as it is that we stay safe during these challenging times, it is also important for states to remember that we do not abandon all of our freedoms in times of emergency,” said Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, who, with Assistant Attorney General Dreiband, is overseeing the Justice Department’s effort to monitor state and local polices relating to the COVID-19 pandemic. “Unlawful discrimination against people who exercise their right to religion violates the First Amendment, whether we are in a pandemic or not.”
“The Commonwealth cannot treat religious gatherings less favorably than other similar, secular gatherings,” said G. Zachary Terwilliger, the U.S. Attorney for the Eastern District of Virginia. “As we stated in our filing, we do not take a position in this Statement on the advisability of in-person gatherings. Indeed, the proper response to the COVID-19 pandemic will vary over time, and will depend on facts on the ground.”
In its Statement of Interest, the United States explains that governments may take necessary and temporary measures to meet genuine emergencies, and that states and localities should be afforded substantial deference in their response to emergency situations such as the current pandemic. “But,” the Statement explains, “there is no pandemic exception to the Constitution and its Bill of Rights.” Because the executive orders prohibit Lighthouse’s sixteen-person, socially distanced gathering in a 225-seat church but allow similar secular conduct, such as a gathering of 16 lawyers in a large law firm conference room, the governor’s executive orders may constitute a violation of the church’s constitutional rights to the free exercise of religion.