DOJ files statement of interest in church suit against Virginia governor

CNA Staff, May 4, 2020 / 09:00 am

The Justice Department (DOJ) is backing a small community church suing Virginia Governor Ralph Northam, arguing that the state cannot single out churches for public health restrictions during the coronavirus pandemic.

Lighthouse Fellowship Church on Virginia's Eastern Shore filed suit last week against Northam's stay-at-home order prohibiting church gatherings with more than ten people inside. The DOJ filed a statement of interest on Sunday in the case.

"The United States has a substantial interest in the preservation of its citizens' fundamental right to the free exercise of religion, expressly protected by the First Amendment," the brief states.

Although the state can lawfully restrict gatherings during a public health emergency, it must do so without discriminating against religion, the DOJ argued in its brief. So far, Virginia has not shown that it applied restrictions evenly for secular and religious gatherings, as many exemptions exist for various businesses but not for churches, the DOJ said.

The church sued the state after its pastor received a summons for hosting a 16-person Palm Sunday service on April 5 at the church. Gov. Northam had issued a stay-at-home order prohibiting gatherings of more than 10 people, including in churches.

At the Palm Sunday service, a police officer entered the church and told attendees they were in violation of the governor's order, threatening arrest for attendees who violated the order in the future. Pastor Kevin Wilson faces up to one year in prison or up to $2,500 in fines.

Lawyers representing the church say that its congregation is disproportionately poor and vulnerable, that attendees of the Palm Sunday service were spaced out within the church sanctuary, and that congregants don't have the means of watching or listening to church services remotely.

"Some of them [congregants] are former drug addicts, that have come out of drug addiction; others are some people who have been in prostitution-not all of the people in the church, but some of them are from that background," Matt Staver, chairman and founder of the Liberty Counsel which represents Lighthouse Fellowship Church, told CNA in a previous interview.

"For some of those individuals, the church is the only family that they have and they rely upon the church for support." 

According to the DOJ's statement of interest, the state has not yet responded to allegations that it treated the church differently than it did other secular establishments such as law and accounting offices that were allowed to hold gatherings of more than 10 people.

For instance, Gov. Northam's order allows staff gatherings at certain businesses with no limit on the number of employees; it also exempts beer, wine, and liquor stores, hardware and home improvement stores, and laundromats and dry cleaners from restrictions to which churches are subject.

The state does have legitimate authority to take "necessary, temporary measures to meet a genuine emergency," the DOJ argued, but such restrictions must be "balanced" against constitutional rights and cannot discriminate against religion.

By singling out religious institutions, the state now has the "burden of proof" that its order has "compelling reasons" to treat religious services differently than other secular gatherings, the DOJ argues, and so far the state has failed to prove its case.

The brief is part of Attorney General William Barr's April 27 initiative to clarify constitutional rights during the pandemic.

The DOJ has also supported a Mississippi church in its case against the city of Greenville; the church held drive-in services that were curtailed by the city as a public health risk, with police issuing fines of $500 to participants who remained in their cars even as local restaurants were allowed to serve drive-in patrons. The mayor later said the city would not collect on the fines and would allow such services to continue in future.

Also, on Saturday the Sixth Circuit Court of Appeals granted an injunction against a state order to Maryville Baptist Church in Kentucky, saying that "[t]he Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same."