On April 5, three weeks after President Donald Trump declared the novel coronavirus to be a national emergency, Pastor Kevin Wilson decided to go ahead and hold Palm Sunday service at the Lighthouse Fellowship Church, located in a low-slung brick building on the island of Chincoteague, Virginia.
Without any internet to broadcast the service online, Wilson felt he had to let his congregants come in. He ministers to people who have struggled with drug addiction, mental health, poverty and prostitution, keeping a trashcan at the altar where people can throw away cigarettes and alcohol to surrender them to God. That morning, Wilson wiped down the doors and disinfected the chairs, and 16 attendees, who didn’t wear masks because they run into each other in the small town anyway, he says, sat spaced apart for the service in the church’s roughly 200-seat room.
But as it began, police in masks and gloves showed up and served Wilson a criminal summons for allowing more than 10 people to gather — the limit under Virginia’s coronavirus guidelines. Now he could serve up to a year in jail, and/or pay a $2,500 fine. “It shocked me, that [the police] came in all masked all up,” Wilson says. “And it shocked the people. They were saying, ‘What in the world is going on here?’”
Wilson and the Lighthouse Fellowship Church have landed in the center of a national debate over how the government can keep citizens safe during a deadly pandemic without violating their constitutional rights, including the freedom of assembly and free exercise of religion. As the coronavirus has claimed more than 90,000 lives in the U.S., teams of lawyers, officials and politicians around the country are trying to find the demarcation between the state taking drastic measures deemed necessary to protect the health of Americans and trampling on legally guaranteed freedoms. Court cases have sprung up around the country challenging stay-at-home orders that have banned religious gatherings, ordered gun shops to close, and halted abortions. Now, as the country reopens, the federal government is throwing its weight in the ring, backing churches in individual cases and ordering governors to reopen houses of worship as “essential” services, part of a campaign critics say is in line with the Trump Administration’s years-long agenda to put some religious groups’ rights above the state.
Last month, Attorney General William Barr created a task force within the Justice Department to identify state and local regulations it deems impinge on people’s constitutional rights. In an April 27 memo, Barr directed Assistant Attorney General for Civil Rights Eric Dreiband and U.S. Attorney for the Eastern District of Michigan Matthew Schneider to lead the Department in reviewing state and local policies related to COVID-19. “If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID-19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” Barr wrote.
So far, two of the three cases the DOJ has formally taken a position on in this new effort have involved the rights of churches. (The other has to do with the Illinois Governor’s authority to impose social and economic limitations during coronavirus.) Though lawsuits over limits to religious gatherings have been filed in numerous states, including Kansas, New Mexico, Florida and Mississippi, Wilson’s case is one of only two in the country where the Department has submitted a statement of interest to the court— in this case, on Wilson’s side. “This case raises issues of national public importance regarding the interplay between the government’s compelling interest in protecting public health and safety from COVID-19 and citizens’ fundamental right to the free exercise of religion,” reads the Justice Department’s statement of interest. “There is no pandemic exception to the Constitution and its Bill of Rights.”
The DOJ effort is part of an ongoing focus within the Trump Administration on religious freedom issues, a critical issue for much of the President’s base. In January, Trump issued federal guidance to protect prayer in public schools, and has stocked the federal judiciary with nearly 200 conservative judges whom he has promised will be “pro-life.” During the pandemic, leaders at the very top levels of government have made clear that protecting religious liberty is a particular priority for the Administration. The President has blamed political rivals for restricting that liberty. “The churches are not being treated with respect by the Democrat governors,” Trump said on May 21. The next day, Trump issued federal guidance designating churches and other houses of worship as “essential” and ordered governors to immediately reopen them. “The governors need to do the right thing and allow these very important essential places of faith to open right now,” Trump said. “If they don’t do it, I will override the governors.” (He and White House Press Secretary Kayleigh McEnany did not specify any authority he would have to override governors on this.)
Attorney General Barr has voiced similar concerns. “Whatever measures are placed against religion have to be placed against all comparable commercial and other activities,” he told conservative radio host Hugh Hewitt on April 21. “You can’t single out religion for special burdens.” Two days later, in a different call with more than 500 faith leaders hosted by the White House, Barr seemed “very concerned,” according to a source on the call, about situations where religious gatherings are restricted at a different level than other activities. “This is the heart of the First Amendment,” Barr said, according to the participant.
Some are troubled that the Administration is advocating for churches to reopen with the virus still at large. Trump has expressed his desire to open churches “even as some states experience their deadliest days, and even as evidence shows in-person gatherings at houses of worship have led to numerous outbreaks,” says Maggie Siddiqi, director of the Faith and Progressive Policy Initiative at Center for American Progress. “The DOJ’s involvement in these cases is part of advancing a long-term agenda to redefine religious freedom as a right that allows certain religious groups to overrule any government regulation as they see fit, no matter who they harm.”
Threading the needle
For the last month, a group of attorneys in the Civil Rights Division under Dreiband have been evaluating situations across the nation as they arise and deciding when to weigh in, according to a Justice Department official. Often they have been learning about potential issues from U.S. attorneys around the country, but in some cases, the team has been hearing about state and local regulations from the media, or from individual citizens who contact the Department to raise concerns, the official says.
In the Lighthouse case, Justice Department lawyers felt the situation was clear enough that they should formally take a stand, according to an official with the Department’s Civil Rights Division. They were particularly struck by photos of packed parking lots at Virginia locations of Lowe’s and The Home Depot, and large gatherings in what Democratic Virginia Governor Ralph Northam had deemed essential businesses. “We didn’t think that there was a rational basis with which to say, these 16 recovering drug and sex addicts cannot gather and socially distance at a church that fits 200, but all of these real estate and law firms and people who want to go to Home Depot can go there and they don’t have to worry about any of this,” the DOJ official says.
So far, the Justice Department has only filed one other statement of interest in a COVID-19-related religion case — on the side of a church in Mississippi whose attendees were fined for gathering for a service during which they sat in their cars in a parking lot. The Civil Rights Division official says DOJ has also intervened in less formal and public ways in other states whose regulations the Department finds problematic. The Department has sent letters to mayors or governors expressing concern, including a May 19 letter to California Governor Gavin Newsom warning him that recent executive orders seem to restrict religious activity more than comparable nonreligious activity. Other times, Justice Department lawyers are making direct calls and talking to state officials about potential issues, hoping to resolve them quietly, DOJ officials say.
“I don’t think the Department’s involvement should be judged or focused on whether they file an amicus brief or statement of interest, because in a lot of instances we reach out privately to governor’s offices and mayor’s offices and just say ‘Hey, you may want to look into this,'” the Civil Rights Division official says. When the problem is solved, “We don’t spike the football and say, ‘Hey, that was us,'” the official adds. He says Barr is “very plugged in” to the Department’s work on these issues and that the attorneys under Dreiband regularly brief and collaborate with Barr’s staff.
Legal experts say the Justice Department’s intervention is fair play. “Different administrations have different priorities, and different administrations give more or less publicity to different things,” says Paul Horwitz, a First Amendment scholar at University of Alabama Law School. “But all of them monitor these kinds of things and sometimes speak out or intervene to ensure that civil liberties are taken seriously.”
The Justice Department official says Barr’s task force works to “thread the needle” between protecting civil liberties and not creating such a litigious environment that states and localities are afraid to act to protect the public or end up in court, and the Department felt that Lighthouse case was on the right side of that delicate balance. The move was also cheered by the White House. Vice President Mike Pence, who chairs the White House coronavirus task force, said on Fox News Radio on May 6 that Wilson’s criminal citation was “beyond the pale,” and said he supports the Justice Department’s decision to weigh in on Wilson’s behalf.
The Commonwealth of Virginia disagrees. Virginia has suffered more than 32,000 cases of COVID-19 and more than 1,000 deaths. Accomack County, in which Lighthouse Fellowship Church is located, has the second highest case count per 100,000 residents in Virginia, according to the Virginia attorney general’s office. In a legal filing in the Lighthouse case, Virginia Attorney General Mark Herring emphasized that the restriction on in-person gatherings was “imposed literally to save lives.” A ruling against the state “would seriously undermine Virginia’s efforts to resist a once-in-a-century pandemic and threaten irreparable harm to an unknown (and unknowable) number of people,” the filing argues. “Time and again, large gatherings — including in-person religious services — have provided fertile ground for transmitting this deadly virus.”
Virginia says that the temporary emergency restrictions are “good-faith, evidence-based” measures, and that the governor did not single out religious organizations for unfair treatment. “Donald Trump and Bill Barr should focus on saving lives and ramping up testing, not teaming up with conservative activists to undermine effective public health measures that are slowing the spread of COVID-19 and saving lives in Virginia and around the country,” says Charlotte Gomer, Herring’s press secretary.
The hard road ahead
As states begin the process of reopening, experts say officials’ decisions over how to proceed will inevitably continue to be fraught with potential legal entanglements over core constitutional questions, which could become even more complicated with Trump’s new order to reopen all houses of worship. “Governors are dealing with a very difficult situation. They can’t close everything; they have to make distinctions. And it is easy to nitpick whatever distinctions they draw,” says Douglas Laycock, an expert in religious liberty at University of Virginia School of Law. “As states gradually reopen more and more things, it will get harder to justify keeping churches on the closed list.”
So far, Virginia has stuck to its plan and is proceeding with its case against Wilson. (Greenville, Mississippi— the site of the other case the Justice Department filed a statement of interest in— has already dropped its ban on drive-in church services after the church sued and DOJ stepped in.) A district judge has twice denied Lighthouse Fellowship Church’s request for an injunction, saying Governor Northam’s order limiting the size of gatherings does not place a “substantial burden” on Lighthouse Fellowship Church’s free exercise of religion. “Although this may not be how Plaintiff wishes to practice its religion under ideal circumstances, these are not ideal circumstances,” U.S. District Court Judge Arenda Wright Allen wrote in her first denial of an injunction.
Lawyers for Lighthouse Fellowship Church have appealed the ruling to 4th Circuit Court of Appeals in Richmond. “We must balance the First Amendment with protecting the health and welfare of people, but picking an arbitrary number of 10 people for every church is not the answer,” Mat Staver, founder and chairman of Liberty Counsel, the organization representing the church in this case, said in a statement. “This unequal treatment of churches is insane.”
“While the Northam Administration applauds and encourages the Department of Justice for standing up for Virginia’s civil liberties, we continue to believe that the Governor’s action was prudent, necessary, and constitutional,” says Grant Neely, chief communications officer for Northam. “We look forward to the Fourth Circuit affirming that.”
But in Chincoteague, a city of less than 3,000 marked by a plodding, 25-mile-per-hour speed limit, where the whole island can feel like home to its residents, making it harder to go to church brings its own dangers, whether that comes in the form of substances or solitude. In a time when people are flooding hospitals and dying by the tens of thousands, Wilson, the pastor, knows churches like his can be a different kind of lifeline. “We have a lot of people loaded with fear and loaded with anxiety, we have a lot of widows in the church that have nowhere to go for emotional support,” he says. “I feel like if we don’t reach out to these people, then they’ll go back to areas in their life that they came out of— that the Lord has brought them out of.”
“I don’t want to be the one to say, Lord, your house is not important,” Wilson says.
With a pending criminal case, Wilson has had to make further adjustments to the church’s routine. He’s cut back the number of in-person services during the week, and now holds three services on Sundays, strictly capped at ten people— “the magical number,” as he calls it. In between services, the pastor makes sure the first ten people get into their cars in the small parking lot before the next ten can come in.
The ordeal has left him feeling wary, and Wilson is being extra careful now. He says: “We just know we’re watched.”
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