Constitutional Rights Don’t Disappear During Pandemic, DOJ Says

Barr: Religious institutions, believers shouldn't be 'singled out'
By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
April 14, 2020Updated: April 15, 2020

The Justice Department (DOJ) has weighed in on a dispute between an individual’s right to exercise religious freedom with local and state officials’ efforts to contain the spread of the CCP virus.

The tension over the issue has sparked multiple lawsuits across the country.

As the CCP (Chinese Communist Party) virus pandemic continues to reshape American society, many churches and religious institutions have devised creative ways to continue faith-based activities while abiding by social distancing requirements. But some churches have faced challenges from local and state authorities for their efforts.

The DOJ recently filed a statement of interest (pdf) in support of a Mississippi church that sued the city in which it’s located and its mayor for ticketing congregants during a drive-in service. The department argued in its filing that individual rights under the constitution must be preserved during a public health crisis.

“There is no pandemic exception … to the fundamental liberties the Constitution safeguards,” the DOJ said. “Indeed, ‘individual rights secured by the Constitution do not disappear during a public health crisis.’

“These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action,” it continued.

“At the same time, the Constitution does not hobble government from taking necessary, temporary measures to meet a genuine emergency,” it added.

Minnesota Grace Church
A sign on the door to Grace Church Eden Prairie pointed churchgoers to online services after church leadership decided to present worship music and the sermon to an estimated 3,500 online viewers in Eden Prairie, Minn., on March 15, 2020. (Adam Bettcher/Getty Images)

This comes as many local and state officials across the country have taken action to stop people of faith from gathering, in an effort to slow the spread of the CCP virus pandemic. In New York City, Mayor Bill de Blasio has said he would impose fines or potentially close down places of worship if services continued in the city.

That’s fueled tension between localities and religious leaders as they attempt to navigate the uncertainties of how to operate during the pandemic.

In the case at hand, Mississippi’s governor had designated churches and other religious entities as an “essential business or operation” that can operate as long as they abide by the Centers for Disease Prevention and Control (CDC) guidelines.

But the City of Greenville issued an executive order on April 7 barring churches from holding in-person or drive-in services until the governor’s shelter-in-place order is lifted.

While many churches have moved services online or on teleconference calls, Temple Baptist Church doesn’t have a website for live streaming and its congregants don’t have social media accounts, the church said.

On April 8, the church broadcasted its service over a low-power FM transmitter to congregants who sat in parked cars outside the church with their windows rolled up. As they listened to the sermon, police officers began issuing $500 tickets to congregants who refused to leave, even though nobody was outside his or her car, the church asserted.

Epoch Times Photo
Pastor Chuck Salvo delivers his sermon to the congregation during a drive-in service at On Fire Christian Church in Louisville, Ky., on April 05, 2020. (Andy Lyons/Getty Images)

The DOJ notes the city has since dropped the fines, but continues to enforce the order.

The church subsequently sued the city on April 10, seeking to block the mayor’s order. It alleges that the order violates the constitutional right of freedom to exercise religion.

The DOJ intervened in the case on April 14, filing the statement of interest in support of the Mississippi church. The department argued that although it’s important for local and state officials to impose restrictions to enforce social distancing, they aren’t allowed to single out church and religious entities for distinctive treatment.

Any government restriction must be neutral, in that any restriction applied on religious activity must be applied the same as to a non-religious activity, Attorney General William Barr said in a statement.

“For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings,” he said. “Religious institutions must not be singled out for special burdens.”

DOJ argued in its filing that the facts support the allegations that the City of Greenville had singled out churches for distinctive treatment because churches are “forbidden” to hold “drive-in services,” even as citizens are permitted to sit in a car at a drive-in restaurant with their windows rolled down.

“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,” Barr said.

“The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.”

Ryan Tucker, senior counsel at Alliance Defending Freedom, a religious rights organization that’s representing the church, welcomed the department’s intervention.

“In Greenville, you can be in your car with the windows rolled down at a drive-in restaurant, but you can’t be in your car with the windows rolled up at a drive-in church service. To target churches that way is both nonsensical and unconstitutional,” Tucker said in a statement.

“We appreciate the DOJ’s support for our position that this type of government action isn’t necessary to protect health and safety. It only serves to unnecessarily violate Americans’ freedoms protected by the First Amendment.”

Temple Baptist Church isn’t the only church fighting to protect congregants’ constitutional rights amid the pandemic.

On April 11, a federal district court granted a temporary restraining order to a Kentucky church, On Fire Christian Center, that had sued Louisville Mayor Greg Fischer over a ban on all Easter church service gatherings in the city, including drive-in services.

In his opinion (pdf), U.S. District Judge Justin Walker called the mayor’s decision “stunning” and “‘beyond all reason,’ unconstitutional.”

In reaction to the DOJ’s intervention in the Mississippi case, Jeremy Dys, a special counsel for First Liberty Institute, told The Epoch Times in an email that he hopes “that mayors and municipalities will take care to ensure their orders in the defense of the public health do not single out or target churches, synagogues, or houses of worship.”

First Liberty Institute represented On Fire Christian Center in the Kentucky case.

Dys echoed DOJ’s arguments, saying that government officials are required by law and the constitution to treat religious organizations equally. He added that places of worship are important during these uncertain times.

“America needs its churches to provide the calm, comfort, and care they uniquely provide to communities across the country,” he said. “And the government needs churches and other houses of worship to do just that during this pandemic.”

Katabella Roberts contributed to this report.

The article was updated on April 15 to provide further clarity to the DOJ’s argument in their statement of interest.

Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.