The DOJ has issued several direct warnings.
The Department of Justice is putting increasing pressure on state and local leaders over how their reopening plans during the COVID-19 pandemic could impact religious institutions.
The DOJ’s civil rights division on Sunday sent a letter to Nevada Gov. Steve Sisolak raising concerns that the state’s phased reopening could unconstitutionally disfavor houses of worship by restricting in-person services, while other businesses like restaurants and nail salons would be permitted to reopen with moderated capacity.
“We understand these directives were issued in the midst of an uncertain situation, which may have required quick decisions based on changing information,” Assistant Attorney General for the Civil Rights Division Eric Dreiband said in the letter. “We are concerned, however, that the flat prohibition against ten or more persons gathering for inperson worship services regardless of whether they maintain social distancing guidelines impermissibly treats religious and nonreligious organizations unequally.”
The letter does not explicitly threaten any type of legal action against Nevada, though Dreiband urges Sisolak to amend the state’s current policy in order to comply with the free exercise clause of the First Amendment.Sisolak’s office did not immediately respond to a request for comment from ABC News.
The warning is the latest in a series of recent moves by the DOJ challenging how governors and mayors are carrying out their reopenings. President Donald Trump has issued repeated threats claiming he could use federal authority to force unwilling states to reopen churches more rapidly.
“The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors,” Trump said last Friday.
It’s not entirely clear, however, how Trump could enforce such an order and the Justice Department’s recent actions toward states thus far have not carried significant legal weight in terms of directly compelling mayors or governors to reverse their policies.
Earlier this month, the DOJ filed a statement of interest siding with a church that had sued Virginia Gov. Ralph Northam after it was issued a criminal citation for holding a 16-person worship service on Palm Sunday.
In April, the DOJ similarly sided with a Mississippi church that sued the city of Greenville after police issued citations to worshipers who showed up to a drive-in service, though the fines were later rescinded. Last Friday, the department also threw its support behind litigation brought by an Illinois state lawmaker challenging Gov. J.B. Pritzker’s exercise of emergency authority in imposing certain lockdown restrictions.
Apart from such so-called “friend of the court” filings, however, the department has not yet directly sued a governor or mayor over their use of emergency powers during the COVID-19 pandemic despite warnings to leaders like Sisolak and Los Angeles Mayor Eric Garcetti.
Last Friday, Dreiband raised issue with public statements Garcetti had made, including a May 13 interview on ABC’s “Good Morning America.”During that interview, Garcetti said Los Angeles would “never be completely open until we have a cure for COVID-19.” Dreiband acknowledged that Garcetti later clarified those remarks, but went on to express unspecified concern about a “heavy-handed approach to continuing stay-at-home requirements.”
The letter states, “Even in times of emergency, when governments may impose reasonable and temporary restrictions, the Constitution and federal statutory law prohibit arbitrary, unreasonable actions.
“Though the Justice Department letter to Garcetti did not threaten any specific action, it warns the mayor that, “there is no pandemic exception to the U.S. Constitution and its Bill of Rights.”
In a news conference later in the day, Garcetti said the state would not be “guided by politics” as it weighs different policies toward reopening.
“We are guided by science we are guided by collaboration,” Garcetti said. “There is nothing else, there are no games there is nothing else going on and that’s the way we’re going to continue to safely open.”