The U.S. Department of Justice warned California on Tuesday that its ban on in-person church services likely is unconstitutional because it treats houses of worship differently from secular businesses that are allowed to be open during the pandemic.
“Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights,” the three-page letter from Assistant Attorney General Eric S. Dreiband to California Gov. Gavin Newsom reads.
The letter acknowledges “the duty” Newsom has “to protect the health and safety of Californians in the face of a pandemic that is unprecedented in our lifetimes.”
But the letter questions why Stage 2 of the state’s Reopening Plan allows schools, restaurants, factories, offices, shopping malls and parts of the entertainment industry to be open with social distancing rules, while church buildings must remain closed.
California’s order, the letter says, “does not appear to treat religious activities and comparable non-religious activities the same” because “in-person religious services are ... apparently prohibited even if they adhere to social distancing standards.”
“Laws that do not treat religious activities equally with comparable non-religious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment,” the DOJ letter reads. “... Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government's public health interest, absent the most compelling reasons.”
It quotes an April statement from Attorney General William Barr, who wrote, “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. Thus, government may not impose special restrictions on religious activities that do not also apply to similar non-religious activity.”
The letter acknowledges that three U.S. federal courts have upheld California’s ban on in-person worship services. But the rulings “do not justify California’s actions,” the letter says. Further, federal courts elsewhere in the country have reached opposite conclusions about bans on church services, the letter says.
“We believe, for the reasons outlined above, that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan,” the letter says.
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Michael Foust has covered the intersection of faith and news for 20 years. His stories have appeared in Baptist Press, Christianity Today, The Christian Post, the Leaf-Chronicle, the Toronto Star and the Knoxville News-Sentinel.