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U.S. Dept. Justice files court support for Mississippi church barred from holding ‘drive-in’ service

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

* * *

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

* * *

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.[1]  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.”

[1]  The City has since stated it will drop the fines, but will continue to enforce the order.

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All these tyranny-minded leftists, from mayors, police chiefs, right on up to a state’s executive offices, must be challenged. Especially for these tickets handed out to churches and their members, every one should fought. My view is that none of these will stick.

In the 1787 debates two principal underlying and overlapping tensions existed. One, between those states which were the then large states (principally MA, PA, VA; the measure being population) and the “lesser states” (such as DE, GA, SC). The other, between non-slave states and slave states. Many of the slave states were also lesser states. The strain/suspicion between the respective delegates was always there, just below the surface which occasionally bubbled to the surface.

The delegates from the large states, who insisted that the lesser states had no reason or cause for concern that the interests of other states would ever be placed by the large states in jeopardy, received this reply from Delaware delegate Gunning Bedford. “They [the large states aka the heavies in this argument] insist . . they never will hurt or injure the lesser states. I do not, gentlemen, trust you.”

from Bowen, Miracle at Philadelphia, at 131 (1966).

That sort of suspicious attitude is lacking in today’s body politic. We give entirely too much trust to politicians who are the heavies. At our peril.

    4fun in reply to pfg. | April 14, 2020 at 9:10 pm

    It isn’t only leftests, there are plenty on both sides and they ALL need to be tarred and feathered as a sign to all the politicians who seem to think being elected exempts them from the laws we all have to honor.

    henrybowman in reply to pfg. | April 15, 2020 at 4:56 pm

    Challenged? Fought?

    Justice delayed is justice denied.

    A mass march on the Mayor’s office, and physically dragging him out into the parking lot for a verbal confrontation about what the federal and state Constitutions guarantee, MIGHT make this point clearly and unmistakably.

    And until something like this happens in at least one or two places, lots of things like these church bans are going to continue to happen all over the country.

Halcyon Daze | April 14, 2020 at 3:51 pm

I don’t think I would attend Plaintiff On Fire Christian Center. ?

Beyond the temporary restraining orders, I would hope that these plaintiffs and similar plaintiffs across the Nation, file suit in Federal court against every person abusing and exceeding their authority by seeking to deprive citizens of their constitutional rights under color of law and authority.

I believe many of these misguided want to be tyrants are about to be held liable for significant damages. Additionally these suits will serve to clarify the limits of those with authoritarian impulses for the next event involving disaster or emergency declarations. After all, being sued into bankruptcy on the one hand as well as, hopefully, permanent rulings baring defendant governments, government agencies and individual agents from such future actions is going to cause many folks to think about whether they might be sued during the next event. Hopefully this can serve as a deterrent.

    Subotai Bahadur in reply to CommoChief. | April 14, 2020 at 6:54 pm

    I would dearly love to see every one of these petty tyrants bankrupted by a 42 USC 1983 suit. What I fear is that the Nomenklatura will not allow their own to be subject to the law.

    Subotai Bahadur

Under the Bivens doctrine, if it is found by a court that the police officers should have known that handing out the tickets and harassing the people in the cars was unconstitutional, the police officers have personal liability for damages in civil suits.

    OleDirtyBarrister in reply to RRRR. | April 14, 2020 at 4:44 pm

    The Bivens doctrine applies to federal officers.

    42 USC Sec. 1983 applies to state actors for constitutional torts. But even then, the plaintiff has to wade through the morass of defenses under qualified immunity.

      I think this doctrine applies also to state and local cops, although perhaps not under that name. SCOTUS has ruled that only where there is a case on point, with facts that alert the cops that their specific conduct is wrongful, will they lose their qualified immunity. This absurd holding only recently resulted in qualified immunity for cops who had stolen about $200,000 in seized cash because there was no case on point saying “cops can’t steal cash they’ve seized.”

Morning Sunshine | April 14, 2020 at 4:44 pm

thus far, I have seen a willingness to go along with this. A willingness to VOLUNTARILY stay home for the good of society. As long as facts are given, and individual choices are allowed, there will be peace. Once the draconian measures come out with no choice, people are going to say NO to that and yes to freedom.

Yes, I can sit with my spouse on a park bench in public.
Yes, I can buy food in the form of seeds for my family.
Yes, I can take my family to a park and have some outside running-around time with my 9-yo daughter.
Yes, I can attend a church service in my car.
Yes, I can sunbathe outside on the grass 10 feet from the nearest person.
Yes, I can drive to my vacation home in another part of the state.

The question becomes, what are the wanna-be-tyrants going to do when their over reach causes people to not believe anything they say?

Our Constitutional rights come to us directly from God and not the nation state. It, therefore, should give pause to our government officials that they, too, shall answer to God who reigns above them and who will judge them according to their work. But, of course, this is the point of this latest “nudge”—to train free people to accept the lie that our rights are granted by the state.

Our Constitutional rights come to us directly from God and not the nation state. It, therefore, should give pause to our government officials that they, too, shall answer to God who reigns above them and who will judge them according to their work. But, of course, this is the point of this latest “nudge”—to train free people to accept the lie that our rights are granted by the state.

We’re seeing BLATANTLY who we can trust with power.

Funny how fast Barr can run when it doesn’t involve obama or clinton or their accomplices.

I thought we were a nation of laws.. Created by Congress, with safeguards..

We are now a nation of orders, created by individuals.

I wonder when we will get back to the old system?. The new one sucks.

    henrybowman in reply to amwick. | April 15, 2020 at 5:02 pm

    Answer: when individuals begin defending their own rights, instead of waiting for uniformed representatives of their opponents to defend those rights “for” them.

    A coach who agreed to the use of refs whose allegiances were to the opposing team would be rightly denounced as a moron. How much stupider will we continue to be?