The Justice Department on Sunday sided with a Virginia church in a religious freedom lawsuit against Gov. Ralph Northam, signaling support for in-person church services during the coronavirus lockdown.
The suit, filed by the legal nonprofit group Liberty Counsel on behalf of Lighthouse Fellowship Church, arose after police broke up Lighthouse’s Palm Sunday service and charged Kevin Wilson, the church’s pastor, with a misdemeanor for violating Northam’s order. It alleges that, given that the church does not have a way to broadcast online, breaking up the service is a violation of the First Amendment’s speech and religion clauses as well as a number of Virginia statutes that ensure the freedom of religious practice.
Officials at the Justice Department agreed, saying that the burden of proof is on Virginia to show that Northam’s order, which limits church gatherings to fewer than 10 people, is the “least restrictive” means of pursuing the state government’s “compelling interest” of ensuring safety during the coronavirus pandemic.
“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,” said Matthew Schneider, one of the DOJ officials filing the statement. “Unlawful discrimination against people who exercise their right to religion violates the First Amendment, whether we are in a pandemic or not.”
Northam responded Sunday night, saying that the Justice Department had taken his order out of context.
The church filed its lawsuit in late April after Northam gave no indication of lifting his shutdown order in May. In its filing, it said that police officers entered the church during a service in which 16 people were present in a building that fits 293 people and who were social distancing. According to the suit, after they issued a citation to Wilson, they told the congregation that, if it returned for an Easter service, everyone in the building would be issued a citation.
The punishment for violating Northam’s stay-at-home order is up to a year in prison or a $2,500 fine. The church did not hold an Easter service.
The church’s attorney, Mat Staver, who founded Liberty Counsel, told the Washington Examiner that the facts of the situation “begged” for litigation. Pointing to the threat of fines and the fact the church cannot function without in-person gatherings, Staver said that it was clear that the Virginia government was infringing on religious freedoms.
“They didn’t have any Easter at all,” Staver said of Lighthouse. “And, for those people, there was no alternative.”
In the church’s filing, it noted that many other businesses are allowed to function in a limited capacity during the shutdown. It includes images of many cars parked in Walmart and Lowe’s parking lots, as well as an image from one of Northam’s own press conferences in Richmond. The picture depicts more than 10 people social distancing in a room while Northam delivers remarks on his response to the pandemic.
The DOJ said that Northam’s discrepancy in the treatment of businesses and churches might be proof that the governor is treating churches unfairly by asking them to continue limiting their capacity.
“Because the executive orders prohibit Lighthouse’s sixteen-person, socially distanced gathering in a 225-seat church but allow similar secular conduct, such as a gathering of 16 lawyers in a large law firm conference room, the governor’s executive orders may constitute a violation of the church’s constitutional rights to the free exercise of religion,” officials said in a press release.
In its statement of interest, the DOJ made similar arguments to those made by Attorney General William Barr in a previous statement in which he supported a church in Mississippi attempting to hold drive-in services. Barr wrote that, in the case of drive-ins, the “government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity.”
The DOJ made a similar argument in the case of Lighthouse but extended its favor from drive-in services to in-person services, which, up to this point, have received unfavorable rulings from many courts. Citing a case decided Saturday in Kentucky, the Justice Department said that governments must extend the same trust in social distancing to churches that they do to institutions exempted from 10-person capacity limits.
“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,” the statement said.
While not taking a position on whether or not Lighthouse should or should not hold in-person services, the DOJ advised that the court deciding the case look primarily at if Northam’s order furthers the state’s “compelling interest” in a way that does not target churches.
