By Khorri Atkinson

Law360 (May 4, 2020, 10:16 PM EDT) -- The Trump administration threw its support behind a Virginia church challenging Gov. Ralph Northam's executive orders limiting in-person gatherings to help slow the spread of the coronavirus, arguing the measures contravened the congregants' First Amendment right to free exercise of religion.

The U.S. Department of Justice filed a 20-page statement of interest late Sunday in support of a motion for a preliminary injunction sought by Lighthouse Fellowship Church on Chincoteague Island. The church went to court after its pastor received a criminal citation and summons last month for holding a 16-person worship service on Palm Sunday in the 225-seat sanctuary, exceeding the 10-person limit set by the state, records show.

The DOJ asserted that the state has discriminated against and unfairly singled out churches and other religious institutions because the orders prohibit in-person religious services of more than 10 people while at the same time allowing people to exceed that limit in other venues, including law offices, banks and retail and nonretail businesses. 

According to the DOJ, "There is no pandemic exception to the Constitution and its Bill of Rights," and individual rights codified in the Constitution "do not disappear during a public health crisis."

"This is not to say that the Commonwealth must necessarily permit live, indoor church gatherings," the DOJ's notice said. "There are good reasons to discourage gatherings of more than ten people and to encourage people to stay home whenever possible."

"But the Free Exercise Clause generally mandates that restrictions on gatherings be applied equally. Thus, an order purportedly aimed at promoting social distancing cannot impose a greater restriction on religious gatherings than similar secular gatherings absent the most compelling, narrowly tailored reasons," the government wrote.

The DOJ's statement of interest marked the second time the agency has endorsed a church's legal challenge over restrictions imposed on religious gatherings during the pandemic. It filed a similar statement April 14 in support of a Mississippi church that held a "drive-in" service in its parking lot earlier that month. The city of Greenville fined congregants $500 each, according to the complaint challenging the city's state-at-home order.

Almost two weeks after the DOJ filed the statement in the Mississippi case, the agency urged federal prosecutors in a memo to closely monitor directives being issued by states and localities to battle the pandemic, saying they could violate religious institutions and believers' constitutional rights.

"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," Attorney General William Barr wrote.

He had also tapped Assistant Attorney General Eric Dreiband of the DOJ's Civil Rights Division and U.S. Attorney for the Eastern District of Michigan Matthew Schneider to review state and local policies enacted in response to COVID-19.

In the Virginia case, Lighthouse Fellowship argued in the suit lodged April 24 that even though it surpassed the 10-person gathering limit set by Northam by six people, "these 16 people were separated by more than six feet in the 225-seat sanctuary, far exceeding government social distancing and personal hygiene recommendations."

According to the complaint, people in constant violation of the state's orders can face a criminal misdemeanor charge, which carries a penalty of up to a year in jail and a $2,500 fine.

But U.S. District Judge Arenda Wright Allen on Friday rejected the church's request for a temporary restraining order and preliminary injunction, even before the state's attorneys responded to the suit. The church immediately appealed.

Judge Allen concluded that the church has not shown a likelihood of success on the merits of its free exercise of religion violation claim, writing that "widespread coverage of the spread of the COVID-19 pandemic and of the risk it poses to human life plainly leads to the strong inference at this stage that the orders were not drafted with any discriminatory intent or religious animosity."

The order added, "The governor did not order the closure of churches and other religious establishments, although they fall within the CDC's guidance to close 'indoor and outdoor venues where groups of people congregate.'" Furthermore, the limited exceptions such as laundromats, banks and retail stores ensure that people have access to essential goods and services, Judge Allen said. 

She also suggested the church could utilize Facebook and other platforms to broadcast services as a workaround for in-person worship. Although this may not be the church's preferred way to practice its religion "under ideal circumstances, these are not ideal circumstances. The equities, in the context of a deadly pandemic, tip in defendant's favor," the judge said. 

The church, represented by the Florida-based organization Liberty Counsel, immediately filed an appeal at the Fourth Circuit to overturn Judge Allen's order. Lighthouse Fellowship has also asked the district court judge Saturday for an injunction pending appeal.

Mat Staver, founder and chairman of Liberty Counsel, said in a statement he was pleased by the DOJ's support.

"Gov. Ralph Northam's targeting of religious worship is a blatant violation of the Bill of Rights," Staver said. "This discrimination must end."

In a preliminary filing late Sunday following the DOJ's statement, Virginia Solicitor General Toby Heytens defended the governor's orders and said the federal government and Lighthouse Fellowship mischaracterized the nature of the ban on large gatherings "in ways that materially impact their arguments that it is neither 'generally applicable' nor 'religion-neutral.'" 

"Not all executive orders issued to address the threat of COVID-19 are the same and those issued by Governor Northam do not operate in the manner plaintiff and the federal government describe," Heytens said. "Contrary to plaintiff's and the federal government's contention, for example, the orders challenged in this case do not 'exempt all non-retail businesses, including professional services, from the mass gathering limit.'" 

Lighthouse Fellowship is represented by Daniel J. Schmid of Liberty Counsel.

The governor is represented by Solicitor General Toby J. Heytens and by Jessica Merry Samuels and Jacqueline Cook Hedblom of the Virginia Attorney General's Office.

The case is Lighthouse Fellowship Church v. Northam, case number 2:20-cv-00204, in the U.S. District Court for the Eastern District of Virginia.

--Editing by Jill Coffey.
 

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