Justice Department Sides With Virginia Church in COVID-19 Restriction Dispute

By Janita Kan
Janita Kan
Janita Kan
Janita Kan is a reporter based in New York covering the Justice Department, courts, and First Amendment.
May 4, 2020Updated: May 4, 2020

The Justice Department (DOJ) has sided with a church against Virginia Gov. Ralph Northam’s stay-at-home order that bars in-person religious services that have more than 10 people during the CCP virus pandemic.

State and local measures to mitigate the spread of the CCP (Chinese Communist Party) virus have recently sparked a debate over how far measures can go to protect public health before they are deemed a violation of constitutional rights and civil liberties.

The department weighed in on the issue in a statement of interest supporting Lighthouse Fellowship Church, a congregation in Chincoteague, Virginia, filed in a federal court on Sunday. DOJ lawyers argued that the church has “demonstrated a likelihood of success” under its Free Exercise claims because Northam’s restrictions appear to discriminate against religious groups and institutions.

Lighthouse Fellowship Church, a small congregation that caters to the socioeconomically disadvantaged, sued Northam, alleging that the governor had issued restrictions that improperly singles out religious gatherings at places of worship while allowing comparable secular gatherings, including “business operations offering professional rather than retail services.” The church is claiming the state had infringed on the Free Exercise Clause of the U.S. Constitution.

The lawsuit was filed at the U.S. District Court for the Eastern District of Virginia after the Chincoteague Police Department issued the church’s pastor a criminal citation and summons for holding a 16-person worship service in its 225-seat sanctuary. The church maintains that it had imposed rigorous social-distancing and personal-hygiene protocols during the service.

If found guilty of violating Northam’s order, the pastor could face a penalty of up to a year in jail or a $2,500 fine, or both.

ralph northam
Virginia Gov. Ralph Northam gestures during a news conference at the Capitol in Richmond, Va., on April 8, 2020. (Steve Helber/AP Photo)

On May 1, the district court denied (pdf) the church’s request for a temporary restraining order and an injunction to block the enforcement of Northam’s order. The church’s lawyer subsequently filed an appeal and asked the district court to grant an injunction pending the appeal.

In its statement, the department argued that Virginia had not satisfied its burden of showing that it has compelling reasons to treat the church differently than similar non-religious businesses.

“[T]here are good reasons to discourage gatherings of more than ten people and to encourage people to stay home whenever possible. But the Free Exercise Clause generally mandates that restrictions on gatherings be applied equally,” the lawyers wrote (pdf).

“[B]y 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.”

The governor’s lawyers filed a preliminary response (pdf) to the DOJ’s arguments, arguing that the church and the DOJ had misconstrued the nature of the state’s gathering ban, adding that the governor would provide an explanation about his order.

“Contrary to Plaintiff’s and the Federal Government’s contention, for example, the orders challenged in this case do not ‘exempt all non-retail businesses, including professional services, from the mass gathering limit,'” the governor’s lawyers wrote.

The lawyers added that the governor also intends to file declarations from public health experts to explain why the gathering ban was and is essential.

Liberty Counsel founder Mat Staver welcomed the DOJ’s statement, saying that “the discriminatory targeting of religious worship by limiting congregants to 10 people even with social distancing while allowing similar secular gatherings violates the First Amendment.” Liberty Counsel filed the lawsuit on behalf of the church.

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Attorney General Bill Barr at the Justice Department in Washington on Jan. 13, 2020. (Charlotte Cuthbertson/The Epoch Times)

This statement of interest comes after Attorney General William Barr issued a memorandum directing federal prosecutors to “be on the lookout” for state and local restrictions that could be running afoul of constitutional rights and civil liberties of individual citizens.

In his memo, Barr said in the event an ordinance “crosses the line” between stopping the spread of the virus and violating constitutional and statutory protections, the DOJ “may have an obligation to address that overreach in federal court.”

“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 said. “But the Constitution is not suspended in times of crisis.

This is the second time the department has filed a statement of interest in support of a church that appeared to be discriminated in state and local stay-at-home orders. The department previously supported a Mississippi church that appeared to be singled out by a local mayor’s order against drive-in services.

Epoch Times Photo
A demonstrator holds a sign at the Virginia State Capitol in Richmond, Va., on April 16, 2020. (Zach Gibson/Getty Images)

Matt C. Pinsker, an attorney and an adjunct professor at Virginia Commonwealth University who teaches constitutional law, told The Epoch Times in an email that he believes for the state to target a church service of 16 people who socially distanced in a sanctuary that of 225 seats is “asinine” and “discriminatory.”

“While Governors can institute measures to protect people, this example is complete insanity and fails to protect anyone,” Pinkster said. “The problem with the Government’s response is that not all people are equally vulnerable, so it is a manifest injustice to deprive all Americans of their civil liberties.”

“The way to strike a balance is to enact measures to protect and support the most vulnerable members of our population, while allowing the less vulnerable to resume their normal lives,” he added.

Many Americans are frustrated by restrictions that caused them to lose their jobs, while plunging their states into a deep economic slump. In recent weeks, there have been an increase in protests against state and local governments over orders that have stirred controversy, such as Michigan banning the sale of seeds in some stores.