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

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 is the lead pastor of Cornerstone Baptist Church in Greensboro, North Carolina. 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

Article 12: The Future of AI

We affirm that AI will continue to be developed in ways that we cannot currently imagine or understand, including AI that will far surpass many human abilities. God alone has the power to create life, and no future advancements in AI will usurp Him as the Creator of life. The church has a unique role in proclaiming human dignity for all and calling for the humane use of AI in all aspects of society.

We deny that AI will make us more or less human, or that AI will ever obtain a coequal level of worth, dignity, or value to image-bearers. Future advancements in AI will not ultimately fulfill our longings for a perfect world. While we are not able to comprehend or know the future, we do not fear what is to come because we know that God is omniscient and that nothing we create will be able to thwart His redemptive plan for creation or to supplant humanity as His image-bearers.

Genesis 1; Isaiah 42:8; Romans 1:20-21; 5:2; Ephesians 1:4-6; 2 Timothy 1:7-9; Revelation 5:9-10

Article 11: Public Policy

We affirm that the fundamental purposes of government are to protect human beings from harm, punish those who do evil, uphold civil liberties, and to commend those who do good. The public has a role in shaping and crafting policies concerning the use of AI in society, and these decisions should not be left to those who develop these technologies or to governments to set norms.

We deny that AI should be used by governments, corporations, or any entity to infringe upon God-given human rights. AI, even in a highly advanced state, should never be delegated the governing authority that has been granted by an all-sovereign God to human beings alone. 

Romans 13:1-7; Acts 10:35; 1 Peter 2:13-14

Article 10: War

We affirm that the use of AI in warfare should be governed by love of neighbor and the principles of just war. The use of AI may mitigate the loss of human life, provide greater protection of non-combatants, and inform better policymaking. Any lethal action conducted or substantially enabled by AI must employ 5 human oversight or review. All defense-related AI applications, such as underlying data and decision-making processes, must be subject to continual review by legitimate authorities. When these systems are deployed, human agents bear full moral responsibility for any actions taken by the system.

We deny that human agency or moral culpability in war can be delegated to AI. No nation or group has the right to use AI to carry out genocide, terrorism, torture, or other war crimes.

Genesis 4:10; Isaiah 1:16-17; Psalm 37:28; Matthew 5:44; 22:37-39; Romans 13:4

Article 9: Security

We affirm that AI has legitimate applications in policing, intelligence, surveillance, investigation, and other uses supporting the government’s responsibility to respect human rights, to protect and preserve human life, and to pursue justice in a flourishing society.

We deny that AI should be employed for safety and security applications in ways that seek to dehumanize, depersonalize, or harm our fellow human beings. We condemn the use of AI to suppress free expression or other basic human rights granted by God to all human beings.

Romans 13:1-7; 1 Peter 2:13-14

Article 8: Data & Privacy

We affirm that privacy and personal property are intertwined individual rights and choices that should not be violated by governments, corporations, nation-states, and other groups, even in the pursuit of the common good. While God knows all things, it is neither wise nor obligatory to have every detail of one’s life open to society.

We deny the manipulative and coercive uses of data and AI in ways that are inconsistent with the love of God and love of neighbor. Data collection practices should conform to ethical guidelines that uphold the dignity of all people. We further deny that consent, even informed consent, although requisite, is the only necessary ethical standard for the collection, manipulation, or exploitation of personal data—individually or in the aggregate. AI should not be employed in ways that distort truth through the use of generative applications. Data should not be mishandled, misused, or abused for sinful purposes to reinforce bias, strengthen the powerful, or demean the weak.

Exodus 20:15, Psalm 147:5; Isaiah 40:13-14; Matthew 10:16 Galatians 6:2; Hebrews 4:12-13; 1 John 1:7 

Article 7: Work

We affirm that work is part of God’s plan for human beings participating in the cultivation and stewardship of creation. The divine pattern is one of labor and rest in healthy proportion to each other. Our view of work should not be confined to commercial activity; it must also include the many ways that human beings serve each other through their efforts. AI can be used in ways that aid our work or allow us to make fuller use of our gifts. The church has a Spirit-empowered responsibility to help care for those who lose jobs and to encourage individuals, communities, employers, and governments to find ways to invest in the development of human beings and continue making vocational contributions to our lives together.

We deny that human worth and dignity is reducible to an individual’s economic contributions to society alone. Humanity should not use AI and other technological innovations as a reason to move toward lives of pure leisure even if greater social wealth creates such possibilities.

Genesis 1:27; 2:5; 2:15; Isaiah 65:21-24; Romans 12:6-8; Ephesians 4:11-16

Article 6: Sexuality

We affirm the goodness of God’s design for human sexuality which prescribes the sexual union to be an exclusive relationship between a man and a woman in the lifelong covenant of marriage.

We deny that the pursuit of sexual pleasure is a justification for the development or use of AI, and we condemn the objectification of humans that results from employing AI for sexual purposes. AI should not intrude upon or substitute for the biblical expression of sexuality between a husband and wife according to God’s design for human marriage.

Genesis 1:26-29; 2:18-25; Matthew 5:27-30; 1 Thess 4:3-4

Article 5: Bias

We affirm that, as a tool created by humans, AI will be inherently subject to bias and that these biases must be accounted for, minimized, or removed through continual human oversight and discretion. AI should be designed and used in such ways that treat all human beings as having equal worth and dignity. AI should be utilized as a tool to identify and eliminate bias inherent in human decision-making.

We deny that AI should be designed or used in ways that violate the fundamental principle of human dignity for all people. Neither should AI be used in ways that reinforce or further any ideology or agenda, seeking to subjugate human autonomy under the power of the state.

Micah 6:8; John 13:34; Galatians 3:28-29; 5:13-14; Philippians 2:3-4; Romans 12:10

Article 4: Medicine

We affirm that AI-related advances in medical technologies are expressions of God’s common grace through and for people created in His image and that these advances will increase our capacity to provide enhanced medical diagnostics and therapeutic interventions as we seek to care for all people. These advances should be guided by basic principles of medical ethics, including beneficence, non-maleficence, autonomy, and justice, which are all consistent with the biblical principle of loving our neighbor.

We deny that death and disease—effects of the Fall—can ultimately be eradicated apart from Jesus Christ. Utilitarian applications regarding healthcare distribution should not override the dignity of human life. Fur- 3 thermore, we reject the materialist and consequentialist worldview that understands medical applications of AI as a means of improving, changing, or completing human beings.

Matthew 5:45; John 11:25-26; 1 Corinthians 15:55-57; Galatians 6:2; Philippians 2:4

Article 3: Relationship of AI & Humanity

We affirm the use of AI to inform and aid human reasoning and moral decision-making because it is a tool that excels at processing data and making determinations, which often mimics or exceeds human ability. While AI excels in data-based computation, technology is incapable of possessing the capacity for moral agency or responsibility.

We deny that humans can or should cede our moral accountability or responsibilities to any form of AI that will ever be created. Only humanity will be judged by God on the basis of our actions and that of the tools we create. While technology can be created with a moral use in view, it is not a moral agent. Humans alone bear the responsibility for moral decision making.

Romans 2:6-8; Galatians 5:19-21; 2 Peter 1:5-8; 1 John 2:1

Article 2: AI as Technology

We affirm that the development of AI is a demonstration of the unique creative abilities of human beings. When AI is employed in accordance with God’s moral will, it is an example of man’s obedience to the divine command to steward creation and to honor Him. We believe in innovation for the glory of God, the sake of human flourishing, and the love of neighbor. While we acknowledge the reality of the Fall and its consequences on human nature and human innovation, technology can be used in society to uphold human dignity. As a part of our God-given creative nature, human beings should develop and harness technology in ways that lead to greater flourishing and the alleviation of human suffering.

We deny that the use of AI is morally neutral. It is not worthy of man’s hope, worship, or love. Since the Lord Jesus alone can atone for sin and reconcile humanity to its Creator, technology such as AI cannot fulfill humanity’s ultimate needs. We further deny the goodness and benefit of any application of AI that devalues or degrades the dignity and worth of another human being. 

Genesis 2:25; Exodus 20:3; 31:1-11; Proverbs 16:4; Matthew 22:37-40; Romans 3:23

Article 1: Image of God

We affirm that God created each human being in His image with intrinsic and equal worth, dignity, and moral agency, distinct from all creation, and that humanity’s creativity is intended to reflect God’s creative pattern.

We deny that any part of creation, including any form of technology, should ever be used to usurp or subvert the dominion and stewardship which has been entrusted solely to humanity by God; nor should technology be assigned a level of human identity, worth, dignity, or moral agency.

Genesis 1:26-28; 5:1-2; Isaiah 43:6-7; Jeremiah 1:5; John 13:34; Colossians 1:16; 3:10; Ephesians 4:24