The Department of Justice Civil Rights Division has asked Gov. Gavin Newsom to reconsider the hard-line his public health officer has taken towards church services in his "Safer at Home" order because, “there is no pandemic exception to the U.S. Constitution and its Bill of Rights.”
Signed by Eric S. Dreiband, a letter posted on Twitter addressed to Gov. Newsom notes that orders, which do not treat religious activities equally with comparable non-religious activities, are subject to heightened scrutiny under the free exercise clause of the First Amendment.
“Laws that are not both neutral toward religion and generally applicable are invalid unless the government can prove that they further a compelling interest and are pursued through the least restrictive means possible,” Dreiband wrote on May 19. “Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government's public health interest, absent the most compelling reasons.”
A spokesperson for Newsom, Danella Debel, told the Northern California Record that the governor’s office is in receipt of the DOJ letter while the Episcopal Diocese of California said it was not one of the forces behind the letter.
“All of the guidance to our churches is being issued with strict adherence to the protocols being released by the governor and local health departments,” said Stephanie Martin Taylor, communications director with the Episcopal Diocese of California. “We take their guidance very seriously and interpret it conservatively with the health and safety of our congregations always top of mind. We are moving slowly and deliberately.”
As previously reported in the Southern California Record, Newsom’s March 19, 2020 order requires Californians to stay home unless to maintain federal critical infrastructure sectors, such as transportation systems, dams and government facilities.
“There hasn't been a lot of thought put into what businesses are essential or not,” said attorney Bilal Essayli of Newport Beach. “It's this very generalized categorical approach where churches and other businesses have been deemed non-essential but liquor stores and marijuana dispensaries are essential and that's a big issue that people are having with these orders.”
The DOJ letter goes on to pinpoint that the state public health officer's April 28 Central Workforce list does not appear to treat religious activities and comparable non-religious activities the same.
“The list includes faith-based services but only if provided through streaming or other technologies in person,” Dreiband writes. “Religious services are thus apparently prohibited even if they adhere to social distancing standards.”
The state’s public health officer is Dr. Sonia Y. Angell. As of May 19, 2020, the Department of Health reported 81,795 positive coronavirus cases statewide and 3,334 fatalities.
“There is science about good physical health and mental health being important as a function of the immune system and depriving people of exercise or the ability to practice their religion or spiritual practice can have a detrimental effect on their immunity and their ability to combat infections,” Essayli told the Northern California Record.
Abiding Place Ministries, Cross Culture Christian Center and South Bay United Pentecostal Church have all filed lawsuits requesting temporary restraining orders but have been denied.
“These temporary restraining order decisions do not justify California's actions,” the letter states. “It is true that social distancing requirements applied to places of worship may inevitably result in much smaller congregations than some faith groups would like. In our experience with other controversies around the country, many places of worship are quite content to operate at 15 to 25% of capacity in a way that allows for social distancing between family groups.”
More than a month ago on April 14, Attorney General William Barr addressed this very same issue when he announced that religious institutions must not be singled out for special burdens.
“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 said in a statement online. “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.”