During a small Mississippi church's drive-in midweek service during Holy Week, police officers issued $500 citations to all the worshippers for violating the mayor's COVID-19 order. The worshippers were ticketed despite sitting in their socially distanced cars with their windows up when other people were allowed to pick up food from a drive-in restaurant with their windows down and despite the fact that the Mississippi governor's executive order regarding COVID-19 had specifically allowed religious services that followed social distancing guidelines.
The church sued and requested a temporary restraining order for violating its rights under the Free Exercise, Free Speech, and Right to Assemble Clauses of the First Amendment, the Due Process Clause of the Fourteenth Amendment, the Mississippi Religious Freedom Restoration Act, and the relevant Mississippi executive orders. Tuesday, the U.S. Department of Justice filed a Statement of Interest in the case.
After summarizing the very real threat from COVID-19, the need for state and local governments to protect their citizens within the confines of the Constitution, and how important it is for citizens to follow social distancing guidelines during the current crisis, the DOJ outlined the relevant law (citations omitted):
There is no pandemic exception, however, to the fundamental liberties the Constitution safeguards. Indeed, “individual rights secured by the Constitution do not disappear during a public health crisis.” These individual rights, including the protections in the Bill of Rights made applicable to the states through the Fourteenth Amendment, are always in force and restrain government action.
At the same time, the Constitution does not hobble government from taking necessary, temporary measures to meet a genuine emergency. . . . And, critically, “[t]he right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.” Emergency public health measures such as gathering limitations and social distancing requirements in response to COVID-19 are evaluated under the Supreme Court’s decision in [Jacobson v. Commonwealth of Massachusetts]. Courts owe substantial deference to government actions, particularly when exercised by states and localities under their police powers during a bona fide emergency. . . .
Under the Free Exercise Clause, a law or rule, or the application of a law or rule, that is not both neutral and generally applicable is subject to heightened scrutiny. . . . Accordingly, the Supreme Court’s free exercise decisions instruct this Court to “survey meticulously,” the risks and character of the various essential services that the city continues to permit. The Court must determine whether the city’s distinctions between nonreligious essential services and religious essential services are truly neutral and generally applicable. In other words, the Court must ensure that like things are treated as like, and that religious organizations are not singled out for unequal treatment.
If the Court determines that the city’s prohibition on drive-in church services is in fact not the result of the application of a generally applicable and neutral law or rule, then it must review the city’s justifications and determine if the city has demonstrated a compelling governmental interest, pursued through the least restrictive means.
As Attorney General Bill Barr said in a statement:
But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. . . .
As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.
Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.
The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions.
Now the city has rescinded its unconstitutional policy, as Andrew McCarthy wrote:
It was on [Tuesday] that the Justice Department filed its statement of interest, intervening on the church’s behalf. By [Wednesday], the city had caved on its overwrought prohibition. This is a welcome sign. As recounted in my column last weekend, incidents of draconian and politicized enforcement of coronavirus restrictions have been mounting. Now, cities and states have reason to know they have gone too far; and the Justice Department knows swift, corrective pushback can be effective.
Thanks to Attorney General Barr, Special Counsel Eric Treene, and the Department of Justice for standing up for Americans' important First Amendment freedoms even during this time of crisis.