SAN FRANCISCO – The U.S. Department of Justice on Friday sent a letter to San Francisco Mayor London Breed urging her to end the city’s “one congregant” rule for places of worship, cautioning the COVID-19-fueled restriction “may violate the First Amendment to the Constitution.”
San Francisco’s phased reopening system currently allows one member of the public to enter a place of worship at a time, with the goal of reaching 25% capacity by the end of September. But the Justice Department’s letter claims that the same reopening plan is more favorable to a range of secular activities, like personal service providers and retailers.
“That we are dealing with a very serious public health crisis does not permit government to discriminate against religious worshipers by imposing a one-person-per-house-of-worship rule while permitting larger numbers of people to gather in tattoo parlors, hair salons, massage studios, and other places,” said Assistant Attorney General Eric Dreiband in a statement.
“There is no pandemic exception to the United States Constitution and its Bill of Rights,” he added.
In a statement to KPIX-TV, San Francisco City Attorney Dennis Herrera disagreed with that characterization and instead accused the Justice Department of “lobbing careless legal threats” at the city. He added that San Francisco is “opening at the speed of safety” and plans to allow larger gatherings at places of worship beyond what is described in the letter.
“It’s consistent with San Francisco’s careful approach and follows closely behind what the state of California allows,” Herrera told KPIX-TV.
The letter claims the order does not provide a “reasoned explanation” why the one congregant rule is necessary or appropriate. In contrast, personal service providers can serve as many customers as they can space at six feet apart, and retail establishments can operate at 50 percent of capacity.
While it doesn’t explain those specific limitations, San Francisco’s order does offer a general basis for why certain activities are more restricted than others, including religious gatherings.
“Even with adherence to physical distancing and face covering requirements, bringing members of different households together to engage in in-person religious gatherings carries a higher risk of widespread transmission of COVID-19,” the order reads. “Such gatherings may result in increased rates of infection, hospitalization, and death, especially among more vulnerable populations.”
Still, the Justice Department’s Dreiband and David Anderson, U.S. Attorney for the Northern District of California, argue that the policy is “‘not equal treatment that applies ‘to comparable secular gatherings'” and rather suggests “hostility to religious people and the free exercise of religion.”
Dreiband and Anderson said they “understand and appreciate” the city’s goal of increasing indoor attendance at places of worship to 25 percent of capacity by the end of September. The plan, which is set to be implemented Wednesday, would allow for indoor religious services at 25 percent capacity up to 50 people, with safety protocols. That number could potentially increase if the city progresses to the orange or “moderate” tier of the state’s COVID-19 reopening plan next week.
“This would be an improvement over the current situation,” they wrote, “but would continue to burden religious exercise severely and unnecessarily, including for houses of worship with large capacity and room for proper social distancing protocols.”