Legal Docket – First Amendment rights and COVID restrictions


MARY REICHARD, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 10th of August, 2020. 

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Today on Legal Docket, the economic shutdowns and conflicts with religious freedom.

With COVID-19 still an issue among us, some states continue with strict limits on gathering sizes in all kinds of contexts: from elevators to restaurants and bars to casinos to churches.

But officials haven’t evenly applied the regulations, or grappled with First Amendment protections in the U.S. Constitution. 

And that’s causing problems.

Late last month, a split U.S. Supreme Court rejected a request from a church to block enforcement of restrictions church leaders thought discriminatory. Calvary Chapel Dayton Valley in Nevada argued that casinos, restaurants, and amusement parks had more generous capacity limits than churches. 

The Supreme Court gave no explanation, not unusual for emergency applications.

REICHARD: The court also rejected a similar plea from a church in California in May, by the same 5-4 ruling. 

These skirmishes are going on around the country. 

The pastor of Grace Community Church, John MacArthur, has defied California’s regulations by conducting church services that include singing. That carries a potential fine of $1,000 per day. 

MacArthur believes the government is to protect civic order, but it cannot dictate “doctrine, practice, or polity of the church.” Here’s how he put it in a video message last updated on Thursday:

MACARTHUR: We’ve gotten affirmation from some pretty significant places. Some of the people that are significant in Washington want to come along and help us. Some people with legal expertise on the Constitution. So we don’t know what’s going to come in the future, but one thing we can promise you: we’re having church at Grace every Sunday.

Joining us now to talk about this is Assistant U.S. Attorney General Eric Dreiband. He leads the Civil Rights Division at the Department of Justice.

AAG Dreiband, welcome!

ERIC DREIBAND, GUEST: Well, Mary, thank you for having me.

REICHARD: The Civil Rights Division outlined some of the unequal treatment houses of worship have faced during the pandemic in a recent DOJ publication.  I just mentioned a couple of those. Can you talk about what else you’re seeing on this front?

DREIBAND: Well, Mary, we, we’ve seen quite a bit of activity in response to the COVID-19 pandemic. That several state and local governments have taken very aggressive action to try to address the pandemic by shutting down houses of worship, as well as other parts of our society and our economy, particularly when the shutdown orders happened in March and April, but continuing even to present day. 

The first case that we saw involving what we thought and still think raised the First Amendment protections for houses of worship was a case out of the state of Mississippi. And we filed papers in federal court there to protect the right of the people there to exercise their religion. And fortunately we were successful and that was back in early April. And we’ve continued on ever since.

REICHARD: I know back in April Attorney General William Barr released a statement on religious practice and social distancing. And around the same time you wrote an op-ed about this. What else is the Justice Department doing to ensure houses of worship know their rights?

DREIBAND: Well, you’re right. I did write an op-ed and made clear back in early April that there is no pandemic exception to the Bill of Rights. There is no exception in the First Amendment protections for religious freedom, for the right of all of us to exercise our religion, that continues during pandemic and that state and local governments cannot and should not infringe upon that. We have continued—both publicly and otherwise—to take action in federal court proceedings at every level of the federal courts when necessary to protect religious freedom. We’ve also spoken publicly and issued public statements in defense of religious freedom, and we will continue to do so.

REICHARD: At the outset I mentioned one California megachurch, Grace Community Church, has met in recent weeks despite state orders not to. So far authorities have not taken action against the church, except to send a cease and desist letter. But if the state does take more action against the church, would the Justice Department intervene on its behalf?

DREIBAND: Mary, I can’t comment on pending matters that are in front of the Justice Department, but here’s what I can say: is that it is certainly the case on the one hand that state and local governments have very broad authority to protect public health and safety. But on the other hand, state and local governments cannot violate the free exercise of religion protections contained in the First Amendment to the Constitution. And so what we do is as a general matter, as we look at what state and local governments are doing, we have a team of investigators and lawyers who are looking at this, who work scrutinizing everything that state and local governments are doing across the country, including in California. And when appropriate, we are taking action in court. And if there is some kind of discrimination going on against say a house of worship or people who are trying to exercise their religion, then we have taken action and we will continue to do that. 

And I know for example, in California, in particular, we became aware of concerns in May of this year, just about two and a half, three months ago. And I sent a letter to Governor [Gavin] Newsom, along with all four United States attorneys in California, expressing our concerns about the infringement of religious freedom and places of worship and their right to worship and be treated equally along with other nonreligious institutions.

And so, for example, Mary, we highlighted to Governor Newsom and expressed concerns about the protections. The fact that restaurants, shopping malls, and offices could have gatherings, but houses of worship could not. We thought—and still do—that kind of limit on houses of worship may have run afoul of the First Amendment to the Constitution. 

Fortunately, Governor Newsom and his team agreed with us. And so six days after we sent our letter, Governor Newsom modified the standards in California to permit greater attendance to places of worship. And so that’s what that’s all public, but mayors, governors, public health commissioners throughout the country should be on notice that we are and will continue, as I say, to scrutinize what they are doing and to take action where appropriate.

REICHARD: You mention discrimination and unequal treatment. Those are legal terms. I wonder what you see as the root cause of the unequal treatment. Is it hostility toward religion? Ignorance of the law? Something else?

DREIBAND: Well, I can’t say for sure, Mary, what motivates some people. I mean, I think there have been times when, you know, some people in our country are less supportive of religious freedom than others. That’s certainly true. 

But from our point of view, it doesn’t really matter what motivates these people. That is, state and local governments. If they violate the First Amendment, we don’t have to prove that they did so because they’re hostile to religion. All we have to do is demonstrate that what they are doing or what they are imposing on houses of worship or people of faith is inconsistent with what they are doing to other similar kinds of people or institutions. And if we can show that, whether they don’t understand the law or whether they don’t like houses of worship—doesn’t matter. And so that’s the approach we’ve taken. 

We have seen instances where public officials throughout the country at various times have favored non-religious gatherings in a significant way over religious gatherings and for whatever their motives are that simply is not permitted by the Constitution of the United States and the Justice Department will not tolerate that kind of action.

REICHARD: We have a lot of pastors and church-goers in our audience. If they are considering meeting again, what advice would you give them?

DREIBAND: Well, I think, you know, each situation is different. Different communities are facing different challenges with addressing the pandemic and a highly contagious deadly virus that is the so-called novel coronavirus. So I think they need to take account of for themselves and their communities, their health and safety and of them and their families. Certainly religious worship is important. It’s important to me personally, but it’s also important to the Justice Department, as a matter of protecting the rights that we have in this country. 

They should think about what is the legal status of matters in their town or their state in terms of what their options are and make the best judgment they can. It’s a difficult time for all of us in our country and across the world, really, but in a country that it was founded upon people fleeing oppression by governments and tyranny against religious faith, it is critically important in my view that we continue here in this country to protect the right of all people to worship as they deem appropriate, within course respectful limits of health and safety to the extent possible.

REICHARD: Eric Dreiband is the Assistant U.S. Attorney General for Civil Rights at the Department of Justice. Thank you for your time today.

DREIBAND: Thank you, Mary.


(AP Photo/Andrew Harnik, File) In this July 8, 2020, file photo the Supreme Court is shown in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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One comment on “Legal Docket – First Amendment rights and COVID restrictions

  1. Justin says:

    “The pastor of Grace Community Church, John MacArthur, has defied California’s regulations by conducting church services that include singing.”

    That is not quite right. The state has closed indoor operations for places of worship for counties on the county monitoring list, which applies to Los Angeles county, where Grace Community Church meets. So that is what order they are defying, not a ban on singing. Our church is in a county on the county monitoring list and we meet outdoors every Sunday morning. And we sing in our service. What we are doing is in accordance with the state and county regulations.

    People are looking for reasons to disagree and argue with each other. These are contentious times. Please try to get the details correct.

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