The Department of Justice is supporting a church that is battling the state of Virginia after it claimed the pastor violated the state’s lockdown rules by holding a service on Palm Sunday, saying in a legal filing that “there is no pandemic exception to the Constitution and its Bill of Rights.”
Kevin Wilson, the pastor of Lighthouse Fellowship Church on Chincoteague Island, faces jail time or a $2,500 fine, according to Fox News.
On April 5, police entered the 293-person capacity church, which held 16 people at the time, and said it was violating an order handed down by Democratic Gov. Ralph Northam.
The Department of Justice’s action comes after comments last month from Attorney General William Barr that the DOJ would critically examine instances in which citizens and churches say lockdown orders have violated their rights.
“Based on the materials before the Court, Plaintiff has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the U.S. Constitution that the Commonwealth’s executive orders have prohibited religious gatherings at places of worship, even with social distancing and personal hygiene protocols, while allowing comparable secular gatherings to proceed with social distancing,” the DOJ said in its filing.
The department said Virginia “has not explained why it differentiates and ‘refus[es] to trust’ this small congregation’s worship activities that, as alleged, follow social distancing and personal hygiene protocols, while allowing and trusting non-retail businesses to gather more than ten people in such a fashion.”
The DOJ said the case has national significance.
“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,” it said.
“The United States also has a strong interest, especially in the midst of the COVID-19 pandemic, in ensuring the development and maintenance of the best possible public health strategies to combat the virus and protect the people of the United States from harm,” the department said in the filing. “But that interest must be balanced with constitutional liberties.
“This case raises issues of national public importance regarding the interplay between the government’s compelling interest in protecting public health and safety from COVID-19 and citizens’ fundamental right to the free exercise of religion.”
The filing said the core issue is not whether Virginia can ban gatherings but whether it can put a higher burden upon churches than anyone else.
It said the state’s lockdown order, “by 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.
“Unless the Commonwealth can prove that its disparate treatment of religious gatherings is justified by a compelling reason and is pursued through the least restrictive means, this disparate treatment violates the Free Exercise Clause, and the Orders may not be enforced against the church.”
Virginia flunked the test of fairness, the DOJ said.
“This is not to say that the Commonwealth must necessarily permit live, indoor church gatherings. As discussed below, there 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,” it said.
“Thus, an order purportedly aimed at promoting social distancing cannot impose a greater restriction on religious gatherings than similar secular gatherings absent the most compelling, narrowly tailored reasons.
“It will be difficult for the Commonwealth to justify having one set of rules that allows for secular gatherings—such as in-person operations for any non-retail business and various other exemptions permitting large-scale retail gatherings — while denying to Lighthouse the ability to worship in modest numbers with appropriate social distancing and sanitizing precautions.”
Justice Department officials said the filing was an effort to ensure essential freedoms remain protected amid the nation’s response to COVID-19, according to a Justice Department news release.
“For many people of faith, exercising religion is essential, especially during a crisis,” Assistant Attorney General Eric Dreiband of the Civil Rights Division said in a statement.
“The Commonwealth of 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,” Dreiband said. “The U.S. Department of Justice will continue to monitor any infringement of the Constitution and other civil liberties, and we will take additional appropriate action if and when necessary.”
Matthew Schneider, U.S. attorney for the Eastern District of Michigan, who is monitoring state and local lockdown policies, said in a statement, “As important as it is that we stay safe during these challenging times, it is also important for states to remember that we do not abandon all of our freedoms in times of emergency.
“Unlawful discrimination against people who exercise their right to religion violates the First Amendment, whether we are in a pandemic or not.”
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