The move marks the first time the Justice Department has taken action on a late April directive by Attorney General William P. Barr asking federal prosecutors to review state and local policies to ensure civil liberties are protected during the coronavirus pandemic.
Previously, the DOJ argued on behalf of a Mississippi church in a similar suit. Churches across the country have sued state and local officials over shutdown orders in recent weeks.
“For many people of faith, exercising religion is essential, especially during a crisis,” Assistant Attorney General Eric Dreiband said in a statement. “The Commonwealth of Virginia has offered no good reason for refusing to trust congregants who promise to use care in worship the same way it trusts accountants, lawyers and other workers to do the same.”
Charlotte Gomer, a spokeswoman for Virginia Attorney General Mark R. Herring, said in an emailed statement that the DOJ interest in the case was counterproductive.
“Donald Trump and Bill Barr should focus on saving lives and ramping up testing, not teaming up with conservative activists to undermine effective public health measures that are slowing the spread of covid-19 and saving lives in Virginia and around the country,” the statement read.
Lighthouse Fellowship, a small congregation, filed its lawsuit in late April after pastor Kevin Wilson was issued a citation for holding a service with 16 people on Palm Sunday, according to the lawsuit.
The filing claims congregants were maintaining social distancing during the service in a space that can hold 225 people, surfaces were cleaned, and hand sanitizer was available to worshipers.
At the end of March, Northam issued an order banning public and private gatherings of more than 10 people that applies to celebrations, parties and religious gatherings, but that permits some business activities to continue. Violations of the order are punishable by up to a year in jail and a $2,500 fine.
The church sought a preliminary injunction against Northam’s order, but a U.S. District Court judge denied that request Friday. On Saturday, attorneys for the church filed a notice it would appeal to the U.S. Court of Appeals for the 4th Circuit and asked again for a temporary restraining order.
Mat Staver, founder of Liberty Counsel and lead attorney on the case for Lighthouse, said he was “very pleased” with the Justice Department’s statement of interest, saying it underscored the seriousness of the case.
“The DOJ accurately points out there is unequal treatment between religious and secular gatherings in Virginia,” Staver said.
Micah Schwartzman, a professor with the University of Virginia Law School, said he doesn’t think the statement of interest will have much impact on the judges in the case. Schwartzman said he would wait for a full filing from the state before rendering a legal opinion on the merits of the case, but he saw a hole in the church’s argument.
“I think the weakness of the claim is that in order to show there is a violation of the First Amendment . . . the church has to argue the state is engaged in discriminating against the church,” Schwartzman said. “I don’t think that’s plausible in what’s happened here.”
The lawsuit is not the only one against Northam’s coronavirus-related orders. An indoor shooting range in Lynchburg successfully sought a preliminary injunction to reopen, arguing in state court that an order closing some “nonessential” businesses violated the right to bear arms. A lawsuit seeking a preliminary injunction against the order by the owner of Gold’s Gym franchises was not successful.