Department of Justice officials have warned San Francisco authorities that their decree limiting church attendance in the “City by the Bay” to one person at a time is unconstitutional and a violation of every San Franciscan’s right to freedom of religious practice.
In a September 25 letter to Mayor London Breed, Assistant Attorney General for the Civil Rights Division Eric Drieband and U.S. Attorney for Northern California David Anderson wrote:
“San Francisco’s treatment of places of worship raises serious concerns about religious freedom. In particular, the limitation of indoor worship to one congregant without regard to the size of the place of worship is draconian, out of step with the treatment afforded other similar indoor activities in San Francisco, wholly at odds with this Nation’s traditional understanding of religious liberty, and may violate the First Amendment to the Constitution.
“Of course, as mayor, you have a duty to protect the health and safety of the people of San Francisco in the face of the global COVID-19 pandemic. In exigent circumstances, the Constitution allows some temporary restriction on our liberties that would not be tolerated in normal circumstances. But, there is no pandemic exception to the Constitution.
“Individual rights, including the protections in the Bill of Rights, are always operative and restrain government action. Thus, 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.
“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.”
Dreiband and Anderson thus provide a succinct context for assessing all local, state and federal regulations aimed at places of worship in the context of protection of public health.
With California and multiple other states and local jurisdictions issuing a flood of such regulations in response to the coronavirus pandemic, Congress is already hearing protests from around the country.
Even with federal courts addressing these various protests in litigation, odds are Congress will have to take action at some point in the near future, so congressional aides should find the full text of the Dreiband/Anderson letter to Mayor Breed extremely informative and useful.