The Department of Justice (DOJ) on Friday called on San Francisco Mayor London Breed to end the city’s “one congregant” rule and raise the allowable capacity in churches, alleging that current pandemic-related policy “suggests hostility to religious people and the free exercise of religion.”
“Even in times of emergency, when reasonable, narrowly-tailored, and temporary restrictions may lawfully limit our liberty, the First Amendment and federal statutory law continue to prohibit discrimination against religious institutions and religious believers,” they wrote in the letter. “These principles are legally binding, and the Constitution’s unyielding protections for religious worshipers distinguish the United States of America from places dominated by tyranny and despotism.”
San Francisco’s order acknowledges the constitutional right to religious freedom but justifies the restrictions under the need to “balance core First Amendment interests with public health,” noting that engaging in “in-person religious gatherings carries a higher risk of widespread transmission of COVID-19.”
The restrictions on houses of worship are essentially the same as for the similarly constitutionally-protected right to free speech, as expressed by engaging in indoor political activity, which is also limited to one person in an office or facility at a time. The exception is that a second person may enter a political office or facility temporarily, such as for a brief meeting or to drop off materials.
While some San Francisco businesses, like restaurants, are entirely prohibited from having customers indoors, others, like barbershops, nail salons, and tattoo parlors are allowed indoor operations.
The Justice Department said in the letter that San Francisco’s restrictions give preferential treatment to certain places, while they “plainly discriminate against people of faith and their ability to gather and practice their faith at churches, synagogues, mosques, and other houses of worship.”
“Put simply, there is no scientific or legal justification for permitting a 20,000 square foot synagogue to admit only one worshiper while allowing a tattoo parlor to accommodate as many patrons as it can fit so long as they are 6 feet apart,” Anderson and Dreiband wrote.
San Francisco recently announced plans that, starting Oct. 1, places of worship will reopen to 25 people indoors.
Anderson and Dreiband said in their letter that the DOJ is reviewing its options and could take further action to “protect the religious liberty rights of the people of San Francisco.”