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Explainer: Department of Justice Statement of Interest regarding religious freedom case in Mississippi

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April 14, 2020

As we always do, but particularly in the midst of the coronavirus pandemic, the ERLC has been closely monitoring the religious liberty landscape across the country for any challenges to the First Amendment rights of Americans. Thankfully, no widespread concerns have materialized in this moment as civic leaders and church leaders have worked together to guide their communities through this time. However, one development that caught our attention took place in Greenville, Mississippi. A handful of other locations raised similar concerns. 

Attorney General William Barr announced over the weekend that the Department of Justice (DOJ) intended to engage potential infringements upon religious liberty in various states. Today, Barr issued a release outlining the necessity of protecting religious freedom in the midst of the COVID-19 outbreak and announcing that the DOJ filed a Statement of Interest in the case involving the Mississippi church. Both the attorney general’s statement and the DOJ filing were measured, highlighting the important role of government in managing the COVID-19 pandemic while emphasizing the limits of government power even in extraordinary circumstances.

What happened in Mississippi?

Temple Baptist Church is a small, independent, non-SBC church in Greenville, Mississippi. Like most churches, Temple was forced to suspend its regular worship gatherings due to the COVID-19 pandemic. However, the DOJ filing states that the church does not have a website, nor the ability to host or stream online services. Instead, the church began broadcasting live sermons from the pastor “over a low-power FM station for its parishioners who gather in their cars in the church’s parking lot.”

In response to the COVID-19 pandemic, the governor of Mississippi issued a stay-at-home order, which like all other stay-at-home orders, designates a number of categories of business and activity as “essential,” allowing them to remain open while requiring them to comply with CDC guidelines. However, the city of Greenville issued an executive order that went further, prohibiting both in-person and drive-in style worship services.

According to the DOJ’s statement of interest, the church members were required to remain in their vehicles with their windows rolled up. Church members gathered in the parking lot in order to be within range of the FM transmitter.

Even so, last Wednesday, cell phone video captured uniformed police officers moving through the parking lot and issuing fines in the amount of $500 to those in attendance. (The city has since stated it intends to drop the fines, while keeping the policy in place.)

The incident immediately provoked significant criticism as to whether the executive order unfairly discriminated against houses of worship in Greenville. Last week, the church filed suit against the city, challenging its order. This afternoon, the DOJ formally responded to the situation involving Temple Baptist. 

What did the DOJ say in its filing?

The U.S. Department of Justice filed a Statement of Interest in the case, which is similar to an amicus brief. In its filing, the DOJ made several significant statements related to religious freedom. Among other things the DOJ clarified the following principles:

No emergency warrants the total suspension of fundamental liberties: 

There is no pandemic exception, however, to the fundamental liberties the Constitution safeguards. . . . At the same time, the Constitution does not hobble government from taking necessary, temporary measures to meet a genuine emergency.

Courts play a critical role in maintaining civil liberties and ensuring government secures its interests by the least restrictive means:

Courts owe substantial deference to government actions, particularly when exercised by states and localities under their police powers during a bona fide emergency.

Nevertheless, the Supreme Court has instructed courts to intervene: “[I]f a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.

As a result, government can take extraordinary, temporary measures to protect the public. . . . If, however, the record establishes “beyond all question, a plain, palpable” violation of the foregoing principles, then a court must grant relief.

Restrictions, such as social distancing measures, must be evenly applied across various sectors of society. Neither states nor municipalities may take measures that 1) single out; 2) target; or 3) discriminate against houses of worship.

“[G]overnment, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause. . . . The Court must determine whether the city’s distinctions between nonreligious essential services and religious essential services are truly neutral and generally applicable.

What about the attorney general’s statement?

In his statement, Attorney General Barr reaffirmed the DOJ’s commitment to protect religious freedom and signaling the DOJ’s intention to monitor future conflicts related to the application of stay-at-home orders to houses of worship. The statement reaffirmed the need for government action to control the spread of COVID-19 “to save hundreds of thousands of American lives from an imminent threat” and asserted that these social distancing measures are “the best path to swiftly ending COVID-19’s profound disruptions to our national life and resuming the normal economic life of our country.”

At the same time, AG Barr’s statement strongly states that the First Amendment rights possessed by houses of worship do not disappear simply because of the existence of a pandemic: 

"But 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. 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. Religious institutions must not be singled out for special burdens."

As Christians, we know the impact our faith—and our communities—play in helping us to remember our purpose and find meaning during these difficult times. The statement included a touching affirmation of the role that faith communities are playing during the COVID-19 pandemic:

"Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines."

Why does this matter?

Today, the Department of Justice sent a signal to the U.S. District Court for the Northern District of Mississippi as well to all local government authorities that as they apply social distancing requirements, they must do so in a manner that respects religious freedom as guaranteed by the First Amendment. Members of all faith communities should be encouraged that the Justice Department is committed to engaging these conflicts and ensuring that even necessary measures are fairly applied. 

As Russell Moore said, “the state must respect the consciences and souls of the people, consciences and souls over which it has no ultimate authority.” And the state must do so even as it performs its vital function of  protecting public health and safety. Likewise, the ERLC will continue to monitor and engage these situations while continuing to advocate for churches to cooperate in good faith with state and local authorities as well as public health officials. Churches and governments remain critical allies in the fight against COVID-19, and we must continue to engage with each other to maintain trust and strong cooperation.

Josh Wester

Joshua B. Wester serves as the Chair of Research in Christian Ethics at the ERLC. He is also pursuing a Th.M. in Public Theology at Southeastern Baptist Theological Seminary. Josh is married to McCaffity, and they have two children. Read More by this Author

Travis Wussow

Travis Wussow serves as the Vice President for Public Policy and General Counsel. Travis led the ERLC’s first international office located in the Middle East prior to joining the Washington DC office. He received a B.B.A. in Finance from The University of Texas at Austin and a J.D. from The … Read More