Monday, May 04, 2020

DOJ Files Statement of Interest Supporting Church's Challenge To Virginia's COVID-19 Restrictions

The Department of Justice announced yesterday that it has filed a Statement of Interest supporting plaintiff in Lighthouse Fellowship Church v. Northam.  The suit seeks to enjoin the state of Virginia from enforcing its COVID-19 Order limit on church services. The order limits religious gatherings to ten people. (See prior posting.)  By filing its Statement of Interest before the state of Virginia was required to file its answer to the complaint, DOJ was able to avoid taking a position on several important questions. DOJ's Statement of Interest (full text) contends in part:
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).