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The Department of Justice Weighs in on State Shutdown Orders 

by Joseph V. Schaeffer

Published: May, 2020

Submission: May, 2020

 



On Wednesday, April 27, 2020, Attorney General Bill Barr issued a memorandum “directing each of our United States Attorneys to also be on the lookout for state and local directives that could be violating the constitutional rights and civil liberties of individual citizens.” Attorney General Barr specifically called out “discrimination against religious institutions and religious believers.”
 
Less than a week later, on May 3, 2020, the Department of Justice and the United States Attorney for the Eastern District of Virginia filed a statement of interest in support of Lighthouse Fellowship Church in its challenge to Virginia Governor Ralph Northam’s shutdown order. In that case, Lighthouse Fellowship Church had sought a temporary restraining order and preliminary injunction against the enforcement of Governor Northam’s shutdown order provided it complied with social-distancing requirements. After the district court denied its motion on May 1, 2020, Lighthouse Fellowship Church appealed to the Fourth Circuit and moved for an injunction pending appeal.
 
In its statement of interest, the Department of Justice takes aim at the district court’s conclusion that the shutdown order is facially neutral and generally applicable to both religious and secular conduct alike. It contrasts, for example, the 10-person gathering restrictions imposed on religious services with the absence of such restrictions on non-retail businesses, such as law firms. And because it argues the shutdown order is neither facially neutral nor generally applicable, the Department of Justice contends that Governor Northam’s shutdown order is subject to a searching least-restrictive-means/compelling-interest test. Though professing it too early to judge the compatibility of the shutdown order with that test, the tenor of the Department of Justice’s statement of interest implies great skepticism.
 
To our knowledge, the Lighthouse Fellowship Church’s case is the first shutdown-related case in which the Department of Justice has weighed in since Attorney General Barr’s memorandum. Even if the Department of Justice does not weigh in on another case, however, its statement of interest here is significant. First, the Department of Justice has lent its significant weight to the First Amendment free exercise challenges that are pending across the country, which undoubtedly will cause courts to give those greater scrutiny and for state and local governments to review the impact of their shutdown orders on religious expression. Second, the Department of Justice’s filing will encourage more challenges to shutdown orders, particularly by religious institutions and leaders. And third, although emphasizing the heightened scrutiny applied to certain First Amendment free exercise claims, the Department of Justice’s filing implies a skepticism of essential/non-essential distinctions that has been at the heart of the shutdown challenges so far. For all of these reasons, the Lighthouse Fellowship Church case is one to watch.

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