Department of Justice Warns California Governor: There’s No Pandemic Exception to the Bill of Rights

The Civil Rights Division of the U.S. Department of Justice (DOJ) sent a letter to California Governor Gavin Newsom on Tuesday warning that the state’s Phase 2 re-opening plan may violate the constitutional rights of churches because they are singled out for less favorable treatment than similarly situated secular activities.

“[G]overnment may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity,” the letter cautions. “Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights.”

At issue are two executive orders from Newsom related to the coronavirus pandemic, dated March 19 and May 4, and related orders from the state’s department of health.

The first, according to DOJ, listed “faith-based services” as one of the “essential activities” permitted during the state’s lockdown, but then restricted them to “streaming or other technologies.” However, according to Assistant Attorney General Eric Dreiband, the letter’s author, the list of non-religious workers who are not likewise restricted is “expansive.”

“California has not shown why interactions in offices and studios of the entertainment industry, and in-person operations to facilitate nonessential ecommerce, are included on the list as being allowed with social distancing where telework is not practical, while gatherings with social distancing for purposes of religious worship are forbidden, regardless of whether remote worship is practical or not,” Dreiband said.

But it gets worse with the second executive order, according to the Assistant Attorney General.

“Even more pronounced unequal treatment of faith communities is evident in California’s Reopening Plan, as set forth in Executive Order N-60-20 (May 4, 2020), and in the documents the California Department of Public Health produced pursuant to it … Places of worship are not permitted to hold religious worship services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets and others are permitted to operate with social distancing,” the letter reads.

The DOJ letter recognizes that California must determine the best ways to protect its citizens: “The Department of Justice does not seek to dictate how states such as California determine what degree of activity and personal interaction should be allowed to protect the safety of their citizens,” it says.

However, it reminds Newsom that the DOJ has already intervened in other situations around the country to protect the constitutional rights of citizens in the face of stay-at-home orders, and strongly suggests that California could do more than it has.

“Religion and religious worship continue to be central to the lives of millions of Americans,” Dreiband said. “This is true now more than ever. Religious communities have rallied to protect their communities from the spread of this disease by making services available online, in parking lots, or outdoors, by indoor services with a majority of pews empty, and in numerous other creative ways that otherwise comply with social distancing and sanitation guidelines. We believe, for the reasons outlined above, that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.”

The timing of DOJ’s letter couldn’t be better. Over 1200 pastors in California are demanding that Newsom allow churches to re-open (in a reduced capacity) by May 31.

Photo by Gage Skidmore