Places of worship are not permitted to hold religious 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....
We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.
This case ... involves important questions of how to balance the deference owed to public officials in addressing a pandemic threatening the health and safety of the public with fundamental constitutional rights. For purposes of this filing, the United States does not take a position on the ultimate question of whether the Commonwealth may have a legally sufficient justification for treating Plaintiff differently from non-retail businesses or other permitted assemblies that may be comparable. The Commonwealth has not yet responded to Plaintiff’s allegations that it permits non-retail businesses, such as law or accounting offices, to gather in numbers greater than ten so long as they use social distancing. Likewise, the Commonwealth has not yet responded to Plaintiff’s allegations that various comparable secular gatherings are permitted. Based on the materials before the Court, Plaintiff has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the U.S. Constitution that the Commonwealth’s executive orders have prohibited religious gatherings at places of worship, even with social distancing and personal hygiene protocols, while allowing comparable secular gatherings to proceed with social distancing. It thus becomes the Commonwealth’s burden to demonstrate that it has compelling reasons to treat Plaintiff differently than similar non-religious businesses, and that it has pursued its objectives through the least restrictive means. Because the Commonwealth has not yet filed any response, it has not satisfied its burden.New York Post reports on DOJ's filing. On Sunday, Virginia's Governor Northram filed a Notice of Intent To File A Response, asking the court to wait for that before deciding the case. On Friday, the court had issued a 33-page opinion denying a Temporary Restraining Order. Lighthouse Fellowship Church v. Northam, (ED VA, May 1, 2020).
In exigent circumstances, when the community as a whole faces an impending harm of this magnitude, and where the measures are tailored to meeting the imminent danger, the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances.
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.He also indicated that the Department of Justice had filed a Statement of Interest (full text) Temple Baptist Church v. City of Greenville, a Mississippi church's challenge to a ban on drive-in church services. (See prior posting.) Subsequently Greenville's mayor indicated that the city would allow drive-in services as long as families stay in their cars with the widows rolled up. (WREG News).
The Justice Department this week hosted training for its lawyers on religious liberty laws as part of Attorney General William P. Barr’s push to prioritize religious freedom cases, but the workshops prompted concern among some career lawyers that they were being educated on ways to blunt civil rights protections for gay and transgender people....
The training week was part of an ongoing campaign at the department to bolster its work to protect religious freedom, which is regularly described by top leaders as the first right protected by the First Amendment, a department official said in response to a request for comment. ...
A department spokesman said that the trainings were in no way meant to marginalize gay, lesbian and transgender people or to promote discrimination in any way, and that nothing in the materials presented did so.
Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights and the former head of the Justice Department’s Civil Rights Division, accused Mr. Barr of using the Justice Department to promote his religious beliefs.
“In speeches and statements, he says that civil society is being undermined by a move away from religiosity,” she said. “He wants to use civil rights statutes and the D.O.J. to redeem what he views as the corrupted soul of America.”
delet[es] the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations.Finally, the Office of Management and Budget issued a 2-page Memorandum providing guidance as to federal grants. (full text). It reads in part:
Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing awards to subgrantees, including state constitutions, may purport to limit sub-grantee participation in violation of the U.S. Constitution. In attempting to comply with such state constitutions and laws, grantees may be discriminating against applicants for sub-grants on the basis of religion, in violation of the Constitution's Free Exercise Clause and the grantee's commitment to adhere to Federal laws prohibiting discrimination under 2 C.F.R. § 200.300. Accordingly, grant awarding agencies shall ensure that the terms of the Federal grants they award make clear that states or other public grantees may not condition sub-awards of Federal grant money in a manner that would disadvantage grant applicants based on their religious character.USA Today reports on these developments.
... [L]aw is being used as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy....
First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.
At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision legalizing abortion. And since then, the legalization of euthanasia. The list goes on.
More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.
The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.
This reminds me of how some Roman emperors could not leave their loyal Christian subjects in peace but would mandate that they violate their conscience by offering religious sacrifice to the emperor as a god.
Similarly, militant secularists today do not have a live and let live spirit - they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience.
The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.
Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of "intersectional" causes. We must ensure – for the future of our country and our society – that college campuses remain open to ideological diversity and respectful of people of all faiths.The DOJ website contains photos of the Summit. JTA reports on additional speakers at the Summit.
Dreiband represented the University of North Carolina when it implemented policies under the state’s since-repealed “bathroom bill,” requiring people to use gender-designated restroom facilities based on the biological sex listed on their birth certificates....
Dreiband unsuccessfully represented Abercrombie & Fitch Co. in a case in which a Muslim teenager alleged the clothing company refused to hire her because she wore a religious head scarf. He led a discrimination lawsuit challenging Abercrombie’s employee appearance requirements while at the EEOC but took the opposite position when he went into private practice.
I want to thank all of you for your courage and insight to speak out for religious liberty.
Let us be frank.
A dangerous movement, undetected by many, is now challenging and eroding our great tradition of religious freedom. There can be no doubt. This is no little matter. It must be confronted and defeated.
This election, and much that has flowed from it, gives us a rare opportunity to arrest these trends. Such a reversal will not just be done with electoral victories, but by intellectual victories.
We have gotten to the point where courts have held that morality cannot be a basis for law; where ministers are fearful to affirm, as they understand it, holy writ from the pulpit; and where one group can actively target religious groups by labeling them a “hate group” on the basis of their sincerely held religious beliefs.
This President and this Department of Justice are determined to protect and even advance this magnificent heritage....
[I]n recent years, the cultural climate in this country—and in the West more generally—has become less hospitable to people of faith. Many Americans have felt that their freedom to practice their faith has been under attack.
And it’s easy to see why. We’ve seen nuns ordered to buy contraceptives.
We’ve seen U.S. Senators ask judicial and executive branch nominees about dogma—even though the Constitution explicitly forbids a religious test for public office. We’ve all seen the ordeal faced so bravely by Jack Phillips.
Americans from a wide variety of backgrounds are concerned about what this changing cultural climate means for the future of religious liberty in this country.
President Trump heard this concern.
I believe this unease is one reason that he was elected. In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith. He declared we would say “Merry Christmas” again....
Today I am announcing our next step: the Religious Liberty Task Force, to be co-chaired by the Associate Attorney General and the Assistant Attorney General for the Office of Legal Policy—Jesse [Panuccio] and Beth [Williams].
The Task Force will help the Department fully implement our religious liberty guidance by ensuring that all Justice Department components are upholding that guidance in the cases they bring and defend, the arguments they make in court, the policies and regulations they adopt, and how we conduct our operations. That includes making sure that our employees know their duties to accommodate people of faith.
As the people in this room know, you have to practice what you preach. We are also going to remain in contact with religious groups across America to ensure that their rights are being protected. We have been holding listening sessions and we will continue to host them in the coming weeks.
This administration is animated by that same American view that has led us for 242 years: that every American has a right to believe, worship, and exercise their faith in the public square.
[The Initiative] will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities....
The Department will work with the United States Attorney’s Offices to strengthen awareness of the land use provisions of RLUIPA by: hosting community outreach events across the country, educating municipal officials and religious organizations about RLUIPA’s requirements, and providing additional training and resources for federal prosecutors.Along with launching the Initiative, DOJ also announced that it has filed a RLUIPA lawsuit against Borough of Woodcliff Lake, New Jersey. The complaint (full text) in United States v. Borough of Woodcliff Lake, (D NJ, filed 6/13/2018), contends that the town imposed a substantial burden on a Chabad synagogue when it denied it a variance to allow it to expand on its current site. The expansion plans were developed after attempts to acquire other sites were frustrated by the Borough. New York Post reports on the lawsuit.
Immediately inform the Office of the Associate Attorney General upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty;
Coordinate decisions about merits arguments and significant litigation strategy questions in religious liberty cases with the Office of the Associate Attorney General; and
Obtain the approval of the Office of the Associate Attorney General with respect to any affirmative civil suit that impinges on rights under the Free Exercise Clause, Establishment Clause, or Religious Freedom Restoration Act.Yesterday the Center for Inquiry issued a press release criticizing the new oversight policy.
RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.Sessions' Memorandum specifically endorses the Clinton Administration's 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace , saying:
The Clinton Guidelines have the force of an Executive Order, and they also provide useful guidance to private employers about ways in which religious observance and practice can reasonably be accommodated in the workplace.AP reports on the Attorney General's Memorandum.saying that it "undercuts federal protections for LGBT people."
Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status. Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).
The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals. Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections. Nor does this memorandum remove of reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII.National Law Journal reports on the AG's action.
Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...
[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....
Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.
The challenges our nation faces today concerning our historic First Amendment right to the “free exercise” of our faith have become acute. I believe that this recent election was significantly impacted by this concern and that this motivated many voters. President Trump made a promise that was heard. In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith. This promise was well received.
.... America has never thought itself to be a theocracy. Our founders, at least the most articulate of them, believed our government existed as a protector of religious rights of Americans that were essential to being a created human being.
The government did not exist to promote religious doctrine nor to take sides in religious disputes.... The government’s role was to provide the great secular structure that would protect the rights of all citizens to fulfill their duty to relate to God as their conscience dictated and to guarantee the citizen’s right to exercise that faith.....
The president has ... directed me to issue guidance on how to apply federal religious liberty protections. The department is finalizing this guidance, and I will soon issue it.
The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason....
Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed. The federal government will actively find ways to accommodate people of all faiths. The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.
This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship, and exercise their faith in the public square....