An official with the U.S. Department of Justice hinted last week that Attorney General William Barr would soon issue a statement about the impact of stay-at-home orders on houses of worship.
The statement was issued yesterday. In it, Barr more or less agrees with Americans United’s view: Government officials have the right to ban large gatherings as long as they treat religious and secular events the same. It also says, “[W]e believe that during this period there is a sufficient basis for the social distancing rules that have been put in place. …”
Even so, Barr’s spin on recent events is not quite accurate.
“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,” Barr wrote. “Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. 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. Religious institutions must not be singled out for special burdens.”
While that statement is true, it ignores the reality on the ground. Americans United has been monitoring the situation nationwide, and we’re unaware of any state that has a policy that allows people to gather for secular events such as concerts, sporting matches and movies while denying that right to houses of worship. In fact, just the opposite is true: In some states, governors have banned all large gatherings but granted exemptions to houses of worship – policies that violate the Constitution and jeopardize public health.
The same day Barr issued his statement, the Justice Department filed a brief supporting a lawsuit by a Greenville, Miss. church that was cited by local officials for holding an outdoor, drive-in service. While we don’t know exactly what went on at Temple Baptist Church – Greenville’s mayor said that the city had received some reports that people were getting out of their cars at drive-in church services – the situation is an outlier. Most of the resistance to do-not-gather orders is led by faith leaders who insist on holding in-person services.
Here’s the bottom line: During a time of worldwide pandemic, houses of worship have no right under the First Amendment to demand special treatment so they can hold services in a manner that threatens public health. The nation would be better off if Barr elevated that message rather than highlighting ambiguous (and rare) cases like the one in Mississippi.