The Justice Department on Tuesday intervened in a federal lawsuit brought by a Greenville, Mississippi, church over the city’s efforts to shut down drive-in religious services, telling a judge that local officials had possibly violated the constitution in their bid to stem the spread of coronavirus.
In a hedged, 14-page legal statement of interest, the Justice Department asserted that the circumstances described by Temple Baptist Church “suggest that the city singled out churches for distinctive treatment,” and that officials should allow Temple Baptist to proceed with drive-in services.
The department’s filing stressed that state officials were within their rights to impose temporary restrictions — including on constitutional rights — on residents during an emergency, and that the “best path to swiftly ending COVID-19’s profound disruptions to our national life and resuming the normal economic life of our country” was to follow state and federal guidance.
But the Justice Department also asserted there was no blanket “pandemic exception” to the Constitution, and seemed to take Temple Baptist’s side as it urged the judge to carefully consider whether the city’s actions were legal.
“The facts alleged in the complaint strongly suggest that the city’s actions target religious conduct,” the Justice Department wrote. “If proven, these facts establish a free exercise violation unless the city demonstrates that its actions are neutral and apply generally to nonreligious and religious institutions or satisfies the demanding strict scrutiny standard.”
The filing offers a window into how the Justice Department is thinking about the thorny legal considerations surrounding coronavirus-related restrictions on constitutional rights — though it provides no clear-cut answer.
“Courts reviewing a challenge to a measure responding to the ‘society-threatening epidemic’ of COVID-19 should be vigilant to protect against clear invasions of constitutional rights while ensuring they do ‘not second-guess the wisdom or efficacy of the measures’ enacted by the democratic branches of government, on the advice of public health experts,” the Justice Department wrote.
As the department filed its statement of interest in the Temple Baptist case, Attorney General William Barr issued a lengthy statement both urging people to follow state and local social distancing orders, while also noting there are limits to such directives.
“For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings,” Barr said. “Religious institutions must not be singled out for special burdens.”
Temple Baptist and its pastor, Arthur Scott, had filed the suit last week with the help of the Alliance Defending Freedom advocacy organization. They alleged that Greenville had sent police officers to issue $500 tickets to those who had come to the church’s parking lot in their cars earlier this month to listen to a service broadcast on FM radio, with their windows up.
“This was both unnecessary and unconstitutional,” the church wrote in its request for a federal judge to issue a restraining order blocking the city from enforcing the restrictions.
Alliance Defending Freedom Senior Counsel Ryan Tucker said Tuesday he appreciated the Justice Department’s support.
“In Greenville, you can be in your car with the windows rolled down at a drive-in restaurant, but you can’t be in your car with the windows rolled up at a drive-in church service,” he said.
At a news conference Monday, before the Justice Department’s statement, Greenville Mayor Erick Simmons called allegations that he was unlawfully targeting churches “ridiculous.” He said when the city issued tickets at Temple Baptist earlier this month, it did so only to those people who refused to leave voluntarily, and it would not require anyone to pay the fines.
“People are dying,” Simmons said.
Barr had previously expressed some wariness with restrictions states have imposed to stem the spread of coronavirus. In an interview with Fox News last week, he called some of the measures “draconian,” and said they should be revisited when federal guidance on the topic expires at the end of the month.
Barr said in the interview that the Justice Department already had “jawboned” some local governments that had imposed restrictions that applied to churches but not others, and he was watching the matter closely.
“I think religious liberty is the first liberty,” Barr said. “It is the foundation of our republic, and a free society depends upon a vibrant religious life among the people. So any time that’s encroached upon by the government I’m very, very concerned.”
Temple Baptist argued in the lawsuit that Greenville aimed restrictions directly at churches — even though they were specifically exempted from the state’s stay-at-home order as an essential businesses. The church said it assiduously followed CDC guidelines in organizing the drive-in services — requiring all attendees to stay in their vehicles and limited its production team to less than 10 people. It noted that Greenville residents were still allowed to use drive-in restaurants.
While many Christians hunkered down at home for Easter Sunday — watching virtual services — there were some signs of frustration with states’ stay-at-home orders and their effect on churches. A pastor in Louisiana, for example, defied the state’s ban on gatherings larger than 50 people, holding a service that a local police chief said drew more than 300.
There is some precedent for courts rejecting government-imposed coronavirus related restrictions on a church. A federal judge in Louisville recently blocked that city’s mayor from forbidding drive-in church services, writing that the decision to do so was “stunning” and “unconstitutional.”
The Kansas Supreme Court, however, struck down a Republican-led effort to allow the continuation of in-person services, despite the governor’s ban on them.