Trump/Barr DOJ continues to defend First Amendment rights

I wrote here about the Department of Justice’s involvement in a Greenville, Mississippi case. As I explained, Greenville’s mayor had discriminated against a religious right guaranteed by the First Amendment — the right to hold a church service. This violation resulted in litigation. The DOJ filed a statement of interest on behalf of the church in question. Greenville backed down.

Now, the Justice Department has filed a statement of interest in a similar case from Virginia. Ralph Northam, Virginia’s governor (old black face himself), issued orders that ban in-person religious services of more than ten people, but permit 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.

A church in Chincoteague Island held a sixteen-person worship service in its 225-seat sanctuary. Given the small number of people at the service and the large size of the sanctuary, social distancing was easily maintained.

Nonetheless, the Chincoteague police department issued a criminal citation and summons to the church pastor based on the governor’s executive orders. The church, which serves, among others, recovering drug addicts and former prostitutes, sued.

A federal district court denied the church’s request for preliminary relief, It said that “[a]lthough [professional-services] businesses may not be essential, the exception crafted on their behalf is essential to prevent joblessness.”

But, as Eric Dreiband, head of the DOJ’s civil rights division points out, for many people of faith, exercising religion is essential, especially during a crisis. Dreiband contends that 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 Justice Department’s statement of interest acknowledges 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. However, it insists that “there is no pandemic exception to the Constitution and its Bill of Rights.”

The executive orders prohibit the church from holding a sixteen-person, socially distanced gathering in a 225-seat church but allow similar secular conduct, such as a gathering of sixteen lawyers in a large law firm conference room. Therefore, the Justice Department argues, the governor’s executive orders may constitute a violation of the church’s constitutional rights to the free exercise of religion.

In a sense, the two policy interests in question here are apples and oranges. Northam wants to “prevent joblessness,” although this desire hasn’t stopped him from creating massive amounts of it.

The Justice Department wants to protect freedom to attend church, especially for the most desperate members of the community.

Both interests are worthy, but only the right to attend church is specifically guaranteed by the U.S. Constitution.