The U.S. Department of Justice warned California on Tuesday that its ban on in-person church services likely is unconstitutional because it treats houses of worship differently from secular businesses that are allowed to be open during the pandemic.
“Laws that do not treat religious activities equally with comparable non-religious activities are subject to heightened scrutiny under the Free Exercise Clause of the First Amendment,” the DOJ letter reads. “... Religious gatherings may not be singled out for unequal treatment compared to other non-religious gatherings that have the same effect on the government's public health interest, absent the most compelling reasons.”
It quotes an April statement from Attorney General William Barr, who wrote, “Even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. Thus, government may not impose special restrictions on religious activities that do not also apply to similar non-religious activity.”