Noah Feldman: Virginia should treat churches as essential during coronavirus

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Attorney General William Barr has made good on his threat to take legal action against states that restrict religious services during the coronavirus pandemic. The Department of Justice has filed a brief in federal district court in Virginia in support of a church claiming the right to hold socially distanced worship.

The lawsuit should not be allowed to be litigated to completion. The governor of Virginia should make a strategic decision to tweak the state’s rules to make it go away.

Analyzed precisely, existing First Amendment doctrine should not enable the church to get an exemption from Virginia law. Yet, because the issues here are tricky, and it’s easy to feel sympathy with the worshippers, a judge could make new law at the invitation of the Justice Department and find in favor of the church. That on its own is a good reason for the state to change its rules.

The facts of the case create some natural compassion for the church, Lighthouse Fellowship Church. It’s a congregation that ministers especially to people with substance abuse problems; for them, attending church is almost certainly a meaningful part of preserving their mental and physical wellbeing. And although the pastor knew that he was breaking state guidelines when he invited his flock into the church, he restricted the numbers drastically, imposed social distancing, and made sure the church was carefully disinfected before worship.

The church violated a Virginia directive that prohibits social gatherings of more than ten people. In explaining what counts as a social gathering, the directives mention religious services as an example (keep that fact in mind, because it will turn out to matter).

As a general matter, under the free exercise clause of the Constitution, the government can require religious people and institutions to follow laws that are neutral and generally applicable. What the government cannot do is to single out religious people or places of worship for special, targeted discrimination because they are religious.

On its face, the Virginia directive is neutral and generally applicable to all social gatherings. It mentions religious services, but not in order to subject them to any special discriminatory burden. If that were the end of the story, the church would lose in federal court.

But Virginia also has two other directives that the church and the Department of Justice say must be taken into account. One governs retail businesses, which are allowed to stay open provided they maintain social distancing rules and reduce capacity. The other governs so-called professional workplaces, like those of lawyers and accountants. They, too, are being allowed to stay open subject to social distancing rules and capacity limitations.

The church and Department of Justice say that by allowing retail and professional businesses to remain open, while forcing churches to close, Virginia is discriminating against the churches precisely because they are churches. Therefore, they maintain, the church service ban violates the First Amendment.

The weakest part of the challenge is that, even if it may not make sense to treat church services as “social” events, the state was still acting neutrally and without any animosity against religion when it did so. After all, the state’s categories are reasonable: It wants to limit social gatherings while allowing businesses that it deems valuable to remain open. That is a value judgement, to be sure. But it is a value judgement that does not discriminate against religion because it is religion.

The best argument for the church and Justice is that there is no defensible basis for classifying religious services as social—and by implication, non-essential—rather than as professional. In the case of retail businesses, you could argue that most customers come and go pretty quickly, reducing the risk of transmission through prolonged exposure. But you can’t say that with regard to professional offices, where people sit in the same space all day.

According to the strict letter of existing constitutional doctrine, the church should probably lose. But if a court were to be influenced by the somewhat arbitrary nature of the classification of places of worship, it could tweak existing doctrine just enough to give the church a win.

That’s one of the reasons why it would make sense for Virginia to change its rules by treating religious services more like professional or retail environments. After all, who is to say that collective worship of all-mighty God is non-essential?

The policy reason behind the Virginia rule may be that the state doesn’t trust churches, synagogues and mosques to follow social distancing reliably. In some cases, that could be an understandable concern. Yet on its own, without empirical proof, it’s not a good enough reason as a policy matter to treat religion differently.

Barr and the Justice Department are taking the opportunity to push an aggressive interpretation of free exercise rights onto the courts. It would be better for Virginia to back down than to allow them a chance to make new law that would favor religious institutions at the expense of the compelling interests of the general public. By backing down, Virginia would be doing a good turn not only for religious services in Virginia, but for constitutional law itself.



Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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