DoJ declares war on San Francisco’s unconstitutional rules against gatherings in houses of worship

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The Justice Department on Friday warned of possible legal action if San Francisco Mayor London Breed fails to lift COVID-19 restrictions on houses of worship, saying the city is “impeding” religious freedom guarantees.

Assistant Attorney General Eric S. Dreiband and U.S.attorney David Anderson of the Northern District of California, in a three-page letter, said that the city’s police of only allowing one congregant at a time in houses of worship is “draconian.”

And while they acknowledged that there are concerns about the spread of the novel coronavirus, they also wrote “there is no pandemic exception for the Constitution.”

The letter also contained a thinly-veiled threat of a potential lawsuit.

“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,” wrote Dreiband and Anderson.

“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 added.

The letter also noted that only allowing a single congregant into “churches, synagogues, and mosques” at a time provides “no reasoned explanation why its one-size-fits-all limit on indoor religious gatherings, regardless of size, is necessary or appropriate.”

Meanwhile, the city’s policy allows deferential treatment to businesses and other gathering places like grocery and big-box stores, salons, and gyms.

The coronavirus gathering restrictions are even less for child care centers, which can have up to 12 indoors at once, “even though children in a childcare center are together in an enclosed space for much longer than those attending a typical religious service,” the letter stated.

In recent weeks, worshippers have been gathering weekly on beaches instead, in violation of social distancing rules. Many also do not wear masks.

In their letter, the Justice Department officials argued that the restrictions “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 worshipper while allowing a tattoo parlor to accommodate as many patrons as it can fit so long as they are six feet apart,” the letter said.

The officials acknowledged that Breed and the city will begin allowing up to 25 people at a time to gather in houses of worship, but that will still “burden religious exercise,” which is especially true for larger ones.

As such, the officials said that the Justice Department was reviewing options and could act to defend “religious liberty rights.”

In response, San Francisco City Attorney Dennis Herrera said that the city’s policies must be effective, citing a low COVID-19 infection rate as it relates to other large U.S. cities.

With more than 200,000 official coronavirus deaths in the country, Herrera said 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.”

He added that the city is already planning to expand in-person religious services attendance beyond what the letter suggests.

A number of churches in California and elsewhere have sued the state over its attendance restrictions, arguing that they violated the First Amendment, regardless of the stated need to protect Americans from the virus.

But those efforts have been met with mixed results. Some federal courts have sided with churches, but most have not, claiming that governors and mayors have the authority to close down places of worship as part of emergency response measures related to COVID-19

And in May, Chief Justice John Roberts sided with the Supreme Court’s liberals in rejecting an emergency appeal from a church in Chula Vista to declare Gov. Gavin Newsom’s (D) gathering restrictions unconstitutional.

Meanwhile, many leftist governors and mayors allowed tens of thousands of protesters to gather throughout the summer in violation of social distancing and mask-wearing rules, citing their right to do so under a different provision of the First Amendment.

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Jon Dougherty

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