When President Trump announced Friday that he would “override” governors who did not adopt his new guidelines for the reopening of churches, critics were quick to question if he had that authority.
Reporters in the White House pressroom hammered press secretary Kayleigh McEnany about whether or not Trump could legally act upon his threats. McEnany appeared to walk back the president’s words, suggesting that Trump would only “strongly encourage” governors to comply. It seemed to work: Over Memorial Day weekend, California, Minnesota, and Vermont, three of the five states still upholding complete bans on church services, relaxed their restrictions.
These results were a needed win for Trump, whose approval rating with many faith groups has slipped in the past month, partly because of his inconsistent attitude on churches remaining open during the coronavirus pandemic. And it’s a win Trump wouldn’t have scored without his dedicated enforcer on religious liberty issues: Attorney General William Barr.
Even before churches began suing states for alleged First Amendment violations, Barr was already sensing the coming fight over church closures. While Trump urged people to stay home for Easter, Barr said he was “very concerned” that churches were being given the short shrift in the rush to lock down the country.
“We have to be very careful to make sure that the draconian measures that are being adopted are fully justified,” he told Fox News in early April, as he explained his worries about possible state-level religious liberty infringements. “Whatever they’re doing to churches, they have to do to everybody.”
And since then, under Barr’s leadership, the Justice Department has intervened in multiple coronavirus-related disputes between church leaders and state governments. With each successive case, the department has taken a stance that favors equality in treatment for churches.
In the first case, Barr filed a statement of interest supporting a Mississippi church defying a local order banning drive-in services. In the second, the department backed a Virginia church suing Gov. Ralph Northam for shutting down its in-person services. In other notable cases, it sent letters to California Gov. Gavin Newsom and Nevada Gov. Steve Sisolak, criticizing them for “unequal” treatment in their phased reopening plans of churches seeking the right to hold in-person services.
In all cases, the department argued for churches on the basis that the suspension of the First Amendment, while not unheard of in times of crisis, is permissible only so long as it is temporary and generally applicable across all sectors of life. The department, and Barr especially, also have consistently emphasized the Religious Freedom Restoration Act, which prevents governments from singling churches out for treatment that places an “unfair burden” on the practice of their faith.
In the case of the Mississippi church, Barr identified that “unfair burden” in the fact that the church was not permitted to hold drive-in services, while a Sonic five minutes down the road was allowed to serve fast food at its drive-in counter. And in the other three cases, department officials pointed out what churches complained about in the lawsuits filed against their respective states: Allowing businesses to remain open while forcing churches to shut down amounts to an “unfair burden” on houses of worship.
Almost every time the department has interceded on behalf of a church, state governments have been quick to amend their restrictions, even though its opinions have no legal weight. In the most recent instance, Sisolak on Tuesday revised his limitations on church gatherings after the department sent his office a letter on Monday. Newsom, although he didn’t immediately respond to Barr’s letter, on Monday changed his orders after churches, encouraged by the attorney general’s support and the president’s threats, doubled down on their resolve to reopen without his go-ahead.
Barr’s influence has rippled over into states that the department has not directly addressed, too. Massachusetts Gov. Charlie Baker last week said that one of the primary motivators behind his decision to loosen restrictions for churches was the department’s repeated statements on the issue.
“The Department of Justice has made very clear to a number of states that peoples’ ability to access church and practice their faith is a constitutional question that they are pushing people at the state level pretty hard on,” Baker said. “I couldn’t ignore that.”
Although the department’s interventions have been popular with church leaders and have served as guides for governors not eager to run afoul of the federal government, they have also provoked criticism from elected leaders in some states. In Virginia, where a district court judge on Friday denied a request from Lighthouse Fellowship, the church the Justice Department supported in early May, to hold large in-person services immediately, state Attorney General Mark Herring used the opportunity to lash out at Barr.
“President Trump and Attorney General Barr’s time and efforts would have been much better spent focused on saving lives and ramping up testing across the country, rather than joining in conservative activists’ fruitless efforts to undermine these proven safety measures,” Herring said in a statement after the decision.
But Barr’s priorities have long been centered on a fight for religious liberty. During a March meeting with reporters, Eric Dreiband, assistant attorney general for the department’s civil rights division, told reporters that Barr was mounting a broad and “zealous” defense of religious freedom through his tenure. Barr has articulated his case several times in public, most notably during a speech delivered at the University of Notre Dame, where he decried “militant secularists” who he sees as trying to rid the government of religion.
Dreiband has since taken the lead on coronavirus-related concerns, after Barr requested in a late April memo that Justice Department officials “monitor state and local policies and, if necessary, take action to correct them.” Dreiband has since co-authored the letters to Newsom and Sisolak, in addition to speaking on other alleged violations of the First Amendment.
In the letter to Newsom, he framed the department’s concerns as a worry that state governments have taken too much latitude with the suspension of First Amendment rights.
“Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights,” he wrote.
