U.S. Dept. Justice files court support for Mississippi church barred from holding ‘drive-in’ service
“The City of Greenville fined congregants $500 per person for attending these parking lot services – while permitting citizens to attend nearby drive-in restaurants, even with their windows open.”
Some local and state governments have tried to ban religious services, including drive-in Easter services, even though conducted in accordance with CDC ‘social distancing’ guidelines.
It’s government power grabs for the sake of power grabs. We highlighted this past weekend how a federal judge barred Kentucky from such anti-religious action, Federal Court Prohibits Louisville Mayor from Banning Easter Sunday Drive-in Church Service:
“As we are all painfully aware, our nation faces a public health emergency caused by the exponential spread of COVID-19, the respiratory disease caused by the novel coronavirus SARS-CoV-2.”35 Four days ago, defendant Mayor of Louisville Greg Fischer said it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service.36 He asserted, “It’s not really practical or safe to accommodate drive-up services taking place in our community.”37 Drive-through restaurants and liquor stores are still open.38
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On Sunday, tomorrow, Plaintiff On Fire Christian Center wishes to hold an Easter service, as Christians have done for two thousand years. On Fire has planned a drive-in church service in accordance with the Center for Disease Control’s social distancing guidelines.49
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In this case, Louisville is violating the Free Exercise Clause “beyond all question.”53
To begin, Louisville is substantially burdening On Fire’s sincerely held religious beliefs in a manner that is not “neutral” between religious and non-religious conduct, with orders and threats that are not “generally applicable” to both religious and non-religious conduct.54 ….
Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.”57 That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”58
Louisville will be (highly) unlikely to make the second of those two showings. To be sure, Louisville is pursuing a compelling interest of the highest order through its efforts to contain the current pandemic. But its actions violate the Free Exercise Clause “beyond all question”59 because they are not even close to being “narrowly tailored to advance that interest.”60
U.S. Attorney General promised federal action to protect religious liberty in light of these government overreaches. That promise took place against the backdrop of 2017 DOJ Guidance, in a Memorandum to all federal agencies and departments, Federal Law Protections for Religious Liberty (pdf.)
In Mississippi, the Temple Baptist Church has filed an Emergency Motion for a Temporary Retraining Order (pdf.) in a situation similar to the Kentucky case, where the City of Greenville fined congregants $500 for attending a drive-in service where people stayed in their cars:
Last week, on April 8, the City of Greenville sent eight uniformed police officers to break up Plaintiffs’ lightly attended, midweek “drive-in” church service. Even though all in attendance were sitting inside their cars with windows rolled up while listening to the service being broadcasted over low-power FM radio, the officers disrupted the pastor’s sermon, demanded driver’s licenses, and anded out citations carrying $500 fines. In other words, the City’s police force caused precisely what the City has since said it was trying to prevent: person-to-person contact.
This was both unnecessary and unconstitutional. The Mississippi Governor’s Executive Orders expressly allow Plaintiffs Temple Baptist Church and Pastor Arthur Scott (collectively, the “Church” or “Temple Baptist”) to hold services of this sort. But the City believes its churches are too dangerous. And on April 7, it enacted an “EXECUTIVE ORDER REGARDING CHURCHES SERVICES,” targeting churches and mandating the closure of all church buildings for even “drive-in” church services. Yet secular drive-in services remain open. Moreover, since the filing of the Complaint, the City has doubled down, announcing that the April 7 church-closure order still “stands.”1 Without a temporary restraining order from this Court, Temple Baptist Church, its parishioners, and its pastor will face more punishment for worshipping their God. Temple Baptist plans to keep holding “drive-in” services on Wednesdays and Sundays so that its parishioners can safely worship God from their cars without risking the spread of coronavirus.
DOJ just announced it was intervening in a case in Mississippi where a church was barred, and fined, for holding a drive-in service:
… [E]ven 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.
Today, the Department filed a Statement of Interest in support of a church in Mississippi that allegedly sought to hold parking lot worship services, in which congregants listened to their pastor preach over their car radios, while sitting in their cars in the church parking lot with their windows rolled up. The City of Greenville fined congregants $500 per person for attending these parking lot services – while permitting citizens to attend nearby drive-in restaurants, even with their windows open. The City appears to have thereby singled churches out as the only essential service (as designated by the state of Mississippi) that may not operate despite following all CDC and state recommendations regarding social distancing.
As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.
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.
The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions.”
 The City has since stated it will drop the fines, but will continue to enforce the order.
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