The Virginia restrictions run afoul of the First Amendment.

‘There is no pandemic exception to the Constitution and its Bill of Rights.” That, yet again, was the Justice Department’s message as it intervened on Sunday on the side of a Virginia church, which is suing Governor Ralph Northam’s lockdown against communal worship.

As I related back in April (here and here), Attorney General Bill Barr has admonished states and municipalities that the Justice Department stands ready to take action against social-distancing edicts that unduly restrict fundamental constitutional rights. The DOJ’s Civil Division has been paying particular attention to restrictions on the free exercise of religion — specifically, heavy restrictions or outright bans on communal worship.

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A number of governors and mayors, particularly in blue states and cities, have decreed that, in their considered opinion, religious observance is not sufficiently “essential” to be indulged while the authorities are trying to stop the spread of COVID-19, the potentially lethal infectious disease caused by the novel coronavirus. State and municipal executives are relying on their emergency powers to dictate draconian restrictions (i.e., these are not legislative enactments).

We need not speculate whether insufficient weight has been accorded the Constitution in the fashioning of various prohibitions on worship, work, and assembly. As New Jersey governor Phil Murphy smugly put it when questioned by Fox’s Tucker Carlson, the Constitution is “above my pay grade,” so “I wasn’t thinking of the Bill of Rights when we did this.” His Honor was relying on a purportedly higher authority: “scientists.”

The U.S. attorney general has countered that federal constitutional law is dispositive on this subject. Consequently, it is not the burden of Americans to prove that the exercise of their fundamental rights is “essential”; the burden is on the state to demonstrate that the right in question cannot be exercised safely under any conditions less severe than those the state is imposing.

While no one questions that the state has a compelling interest in preventing the spread of infectious disease, its restrictions on fundamental rights, such as communal worship, must be the least restrictive means practically available. The state must pursue its legitimate public-safety goal while remaining solicitous of the rights that governments are created to protect. If the state social-distancing restrictions are capricious or discriminatory, in their letter or in the way they are enforced, they are unconstitutional. That is, if the state is permitting social interaction for commercial or other purposes, but denying similar social interaction in religious exercise, it is perforce not using the least restrictive means to regulate First Amendment-protected activity.

In the Virginia case, the Justice Department’s submission notes that the Lighthouse Fellowship Church in Chincoteague Island specializes in serving the socioeconomically disadvantaged. These include recovering drug addicts and former prostitutes who do not have easy Internet access to stream services. For many congregants, the church community is the only family they have. In the church, which can seat 225, the pastor was conducting services for 16 people. This enabled physical separation between worshippers well in excess of social-distancing guidelines touted by our esteemed scientists. Yet, it violated Governor Northam’s prohibition on religious gatherings of more than ten people. The pastor has been threatened with arrest, imprisonment for up to a year, and a $2,500 fine.

By contrast, Northam permits the operation of non-retail businesses offering professional services. A law or accounting firm, for example, faces no restrictions on conference room meetings at which people may be crowded together considerably closer than they are in the church. Virginia also permits the operation of retail businesses (e.g., liquor stores, building-supply retailers, dry cleaners), at which customers pass each other and transact business at close quarters.

The Justice Department acknowledges that, in its 1905 Jacobson v. Massachusetts decision, the Supreme Court ruled that a state may quarantine people against their will if there is a factual basis to believe they would otherwise spread an infectious disease (in that case, yellow fever). In 1944, the Court explicitly stated in Prince v. Massachusetts that “the right to practice religion freely does not include the liberty to expose the community . . . to communicable disease.” Consequently, in a recent case involving Texas’s social-distancing measures, the Fifth Circuit U.S. Court of Appeals construed the High Court’s precedents to “allow the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”

Nevertheless, Jacobson and its progeny make clear that the power to regulate is not the end of the matter. When there is a “plain, palpable invasion” of fundamental liberties, a court must act if the measure in question has no real or substantial relation to public health, or if it is enforced in a discriminatory manner. In Church of Lukumi Babalu Aye v. Hialeah (1993), the Supreme Court put it this way: “The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause.”

Obviously, Northam’s rules impose selective burdens on religious exercise. The Justice Department is not saying that a state could never ban gatherings of more than ten people. Nor is it saying that courts should second-guess the wisdom of policies put in place by political officials accountable to the people who elected them. It is simply saying that the Constitution forbids a state from subjecting religion to more burdensome restrictions than it imposes on other activities.

The Virginia restrictions run afoul of the First Amendment. Likely, that is why the state has not tried to defend them in court. Moreover, the Justice Department points out that the Sixth Circuit U.S. Court of Appeals on Saturday granted an injunction against similarly capricious restrictions that Democratic governor Andy Beshear has attempted to enforce in Kentucky.

The federal district court in Virginia should follow the Sixth Circuit’s lead. In the unlikely event it does not, the church, as supported by the Justice Department, should prevail if it appeals to the Fourth Circuit. Hopefully things will not get that far. Governor Northam should back down. And state and municipal executives should stop thinking of the Constitution as above their pay grade — when they think about it at all.