Attorney General William Barr will leave the Trump administration on Dec. 23. The president liked him, at least up until the end. Democrats never did.
There are no polls that I could find, but Barr’s insistence that houses of worship be treated fairly during the pandemic gives religious people, and anyone else who takes the free exercise clause seriously, a reason to give Barr a thumbs-up. Under Barr, the Department of Justice boosted legal efforts aimed at protecting religion amid coronavirus restrictions, and the Supreme Court has vindicated those efforts in recent weeks.
As early as mid-April, the Department of Justice began arguing the essence of what the U.S. Supreme Court said some seven months later in its Roman Catholic Diocese of Brooklyn v. Cuomo opinion, that “even in a pandemic, the Constitution cannot be put away and forgotten.”
In a statement of interest filed in support of Temple Baptist Church of Greenville, Mississippi, which went to court to challenge local restrictions on drive-in church services, department attorneys expressed that the restrictions were not neutral and were thus illegal. The brief acknowledges that “state and local governments have acted to protect public health by restricting in-person assemblies, including religious assemblies,” but says that “there is no pandemic exception, however, to the fundamental liberties the Constitution safeguards.” The city reversed course and began allowing drive-in services shortly thereafter.
California’s U.S. attorneys, along with Assistant Attorney General Eric Dreiband, wrote California Gov. Gavin Newsom in May to “raise several civil rights concerns” related to the governor’s orders and reopening plans. The letter said that Newsom’s phased plan, putting houses of worship in a more restrictive stage than restaurants, malls, and other operators, was unconstitutional for its differential treatment of religion. “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 attorneys wrote.
The letter also voices support for plaintiffs who had asked courts to restrain authorities from enforcing restrictions on religious activities and whose requests had been denied. “These [temporary restraining order] decisions do not justify California’s actions,” the letter says. South Bay United Pentecostal church was among those plaintiffs. The church took its request for relief to the Supreme Court, though it was denied.
Barr said in April that authorities must “be vigilant to ensure [constitutional] protections are preserved, at the same time that the public is protected,” and he wasn’t joking. Over the pandemic’s course, DOJ filed briefs in cases in Colorado and Washington and drafted letters to state and local executives to encourage fair treatment of religion.
Amid a threatening virus outbreak, it became lost on officials and others (perhaps they never held this value in the first place) that restricting or, in some cases, functionally outlawing religious exercise while allowing higher levels of participation in secular activities is not how we do things in this country. The Supreme Court has recognized that it is not how we do things in this country. Barr did, too.
