The Trump Department of Justice is siding in court with a Washington, D.C. church that sued the city over a restriction prohibiting it from meeting not only indoors but also outdoors.
Capitol Hill Baptist Church, which had around 1,000 attendees on a typical Sunday prior to the pandemic, is prohibited from gathering either indoors or outdoors under restrictions by Mayor Muriel Bowser that ban in-person church gatherings of more than 100 people.
The city has refused to grant the church a waiver, even though the congregation has committed to requiring masks and to enforce social distancing of six feet between families. The church filed suit against the city in September, alleging violations of its rights guaranteed under the U.S. Constitution’s First and Fifth Amendments, including its rights to assemble and worship without government interference. The church’s pastor, Mark Dever, is a well-known author and speaker.
“Although the precise legal tests may change based on the specific restriction at issue, the bottom line remains the same: there is no pandemic exception to the Constitution and our fundamental rights,” the DOJ brief, a Statement of Interest, says. It was filed Friday.
“Individual rights set forth in the Constitution are always operative and restrain government action,” the brief ads.
The restriction likely “targets religious believers” under Supreme Court precedent, the brief says. The mayor and the city, the brief says, are imposing a “substantial burden” on the church’ “religious exercise by denying the church the ability to gather as a single body as required by its sincere religious faith,” the brief says.
“To be put simply, Defendants’ current approach to COVID19 limitations has the effect of treating some forms of protected First Amendment activity differently than other forms of comparable activity and in so doing singles out religious exercise for differential treatment,” it says.
The brief notes that the city denied the church’s request to meet outside, even as the city allows outdoor protests and outdoor dining, the brief says.
“The right to free exercise of religion and the right to protest are both enshrined in the First Amendment of the Constitution,” said Eric Dreiband, assistant attorney general for the department’s Civil Rights Division. Dreiband’s name is one of five on the brief. “We are a nation dedicated to freedom of conscience and freedom of expression. The District of Columbia has, unfortunately, neglected these rights. The Justice Department is committed to defending both of these fundamental freedoms and in supporting all Americans rights to worship as they choose.”
The United States “has a substantial interest in the preservation of its citizens’ fundamental right to the free exercise of religion, expressly protected by the First Amendment,” the brief says.
“While a local government has significant discretion to decide what measures to adopt to meet a public health threat, the Free Exercise Clause of the Constitution requires that, whatever level of restrictions it adopts, government must treat religious gatherings the same as comparable nonreligious gatherings, absent the government meeting strict scrutiny, that is, proving that it has a compelling governmental interest pursued through the least restrictive means,” the brief says. “Similarly, the Free Speech Clause forbids the government from discriminating against certain speech while privileging other speech with a viewpoint favored by the government, unless it meets strict scrutiny.”
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.