Days after receiving a Department of Justice (DOJ) letter questioning its “one congregant” rule for churches, San Francisco moved to a less restrictive reopening tier, which will allow gathering in places of worship at 25 percent capacity or 100 people, whichever is less.
The DOJ letter to San Francisco Mayor London Breed noted the prior allowance of only one worshipper at a time may violate religious freedom protected by the U.S. Constitution and advised revision of the policy.
“Generally speaking, courts haven’t set forth any bright lines (e.g., ‘you have a right to have 50 people gather,’ or ‘you have a right to gather in groups of up to 20% of room capacity’),” Eugene Volokh, professor at UCLA School of Law, told the Northern California Record by email. “But they have sometimes looked to how other comparable nonessential gatherings are treated.”
Volokh noted that in the May 9 Roberts vs. Neace decision, the U.S. Court of Appeals, 6th Cir., ruled for the plaintiffs, who sought to attend in-person worship services.
“In the week since our last ruling, the Governor has not answered our concerns that the secular activities permitted by the order pose the same public-health risks as the kinds of in-person worship barred by the order,” the ruling states. “As before, the Commonwealth remains free to enforce its orders against all who refuse to comply with social-distancing and other generally applicable public health imperatives. All this preliminary injunction does is allow people—often the same people—to seek spiritual relief subject to the same precautions as when they seek employment, groceries, laundry, firearms, and liquor.”
The coronavirus pandemic has afforded the government more latitude in order to respond to the public health emergency.
“Courts do give the government considerable flexibility in deciding that, say, grocery stores are essential and have to remain open even when churches are closed,” Volokh said. “And the government can distinguish events based on factors that are closely linked to the risk of contagion, e.g., by distinguishing (as the S.F. order does) indoor events (religious or otherwise) from outdoor events.”
The DOJ letter, sent by Eric Dreiband, Assistant Attorney General for the Civil Rights Division, and David Anderson, U.S. Attorney for the Northern District of California, acknowledges the mayor’s duty to protect the health and safety of San Francisco residents amid the pandemic.
“In exigent circumstances, the Constitution allows some temporary restriction on our liberties that would not be tolerated in normal circumstances,” the letter states. “But, there is no pandemic exception to the Constitution.”
A few days before Salvatore Joseph Cordileone, the archbishop of San Francisco, participated in a protest of the one-congregant rule, he stated in a Washington Post opinion piece, “All we are seeking is access to worship in our own churches, following reasonable safety protocols — the same freedoms now extended to customers of nail salons, massage services and gyms. It’s only fair, it’s only compassionate, and, unlike with these other activities, it’s what the First Amendment demands.”
Although the city’s order was enacted for public health protection, as restrictions eased, it raised the question is the one-congregant rule constitutional?
“It might be if all nonessential indoor operations are indeed closed down, at least to more than one visitor at a time,” Volokh said. “But if a considerable number of such operations is allowed, with more than one visitor present (e.g., in retail shops where several customers are allowed at one time), then there’s at least a plausible argument that religious gatherings should be allowed too.”