The Department of Justice (DOJ) on Friday called on San Francisco Mayor London Breed to end the city’s “one congregant” rule and raise the allowable capacity in churches, alleging that current pandemic-related policy “suggests hostility to religious people and the free exercise of religion.”
Assistant Attorney General Eric S. Dreiband and U.S. Attorney David Anderson of the Northern District of California, in a letter (pdf) denounced as “draconian” San Francisco’s restrictions regarding attending houses of worship, which generally let just one congregant inside at a time. Exceptions to the rule, according to the San Francisco order (pdf), are that a parent or guardian may be accompanied by their minor children or that a person with a disability may bring their caregiver.
While restricting indoor participation in worship to a single congregant, San Francisco’s order allows “multiple patrons in other indoor settings including gyms, tattoo parlors, hair salons, massage studios, and daycares,” the DOJ said in a statement, adding that this is “contrary to the Constitution and the nation’s best tradition of religious freedom.”
While Anderson and Dreiband acknowledged the imperative to protect residents from the CCP (Chinese Communist Party) virus and noted “exigent circumstances” that, under the Constitution, permit temporary restriction on liberties, they said, “there is no pandemic exception for the Constitution.”
“Even in times of emergency, when reasonable, narrowly-tailored, and temporary restrictions may lawfully limit our liberty, the First Amendment and federal statutory law continue to prohibit discrimination against religious institutions and religious believers,” they wrote in the letter. “These principles are legally binding, and the Constitution’s unyielding protections for religious worshipers distinguish the United States of America from places dominated by tyranny and despotism.”
The DOJ remarks echo those made by Salvatore Joseph Cordileone, the archbishop of San Francisco, in a recent op-ed in The Washington Post: “I never expected that the most basic religious freedom, the right to worship—protected so robustly in our Constitution’s First Amendment—would be unjustly repressed by an American government. But that is exactly what is happening in San Francisco.”
San Francisco’s order acknowledges the constitutional right to religious freedom but justifies the restrictions under the need to “balance core First Amendment interests with public health,” noting that engaging in “in-person religious gatherings carries a higher risk of widespread transmission of COVID-19.”
The restrictions on houses of worship are essentially the same as for the similarly constitutionally-protected right to free speech, as expressed by engaging in indoor political activity, which is also limited to one person in an office or facility at a time. The exception is that a second person may enter a political office or facility temporarily, such as for a brief meeting or to drop off materials.
While some San Francisco businesses, like restaurants, are entirely prohibited from having customers indoors, others, like barbershops, nail salons, and tattoo parlors are allowed indoor operations.
The Justice Department said in the letter that San Francisco’s restrictions give preferential treatment to certain places, while they “plainly discriminate against people of faith and their ability to gather and practice their faith at churches, synagogues, mosques, and other houses of worship.”
“Put simply, there is no scientific or legal justification for permitting a 20,000 square foot synagogue to admit only one worshiper while allowing a tattoo parlor to accommodate as many patrons as it can fit so long as they are 6 feet apart,” Anderson and Dreiband wrote.
In response to the letter, San Francisco City Attorney Dennis Herrera told Fox News that the city “must be doing something right” as its infection rates are lower than in many other big cities, adding that the federal government “should focus on an actual pandemic response instead of lobbing careless legal threats. San Francisco is opening up at the speed of safety.”
San Francisco recently announced plans that, starting Oct. 1, places of worship will reopen to 25 people indoors.
“The mayor is sensitive to the needs of the faith community and people’s desires and needs to worship, both personally and as mayor,” said Jeff Cretan, a spokesman for Mayor London Breed, according to the SF Chronicle. “We are working with public health to do what we can, knowing we have to be cognizant of the risks with every step we take with reopening, whether that is schools or houses of worship.”
Anderson and Dreiband said in their letter that the DOJ is reviewing its options and could take further action to “protect the religious liberty rights of the people of San Francisco.”