Attorney General Mark Herring’s office made the arguments in a memo filed in response to a federal lawsuit brought by Lighthouse Fellowship Church of Chincoteague.
The church sued after its pastor was issued a criminal citation for having 16 people at a Palm Sunday service that authorities said violated Northam’s order barring gatherings of more than 10 people.
The U.S. Department of Justice has sided with the church. In a court filing, the DOJ argued that Virginia “cannot treat religious gatherings less favorably than other similar, secular gatherings.”
Lawyers for the church have said that during the service, those who attended maintained social distancing and had extensive sanitizing of common surfaces. The church said attendees had to stay 6 feet (2 meters) apart and use hand sanitizer before entering the building.
In arguing against the injunction sought by the church, Virginia Solicitor General Toby Heytens wrote that the temporary restriction on in-person gatherings is a “good-faith, evidence-based” emergency measure.
“Such a ruling would seriously undermine Virginia’s efforts to resist a once-in-a-century pandemic and threaten irreparable harm to an unknown (and unknowable) number of people,” he wrote.
Heytens said Northam recognizes that the restrictions he’s imposed – including closing schools and nonessential businesses and issuing a stay-at-home order -“have been hard on all Virginians, including religious communities.”
“But Virginia’s restrictions do not operate in the way plaintiff and the Federal Government claim, nor has religion been singled out for unfair treatment,” Heytens wrote. He said Northam issued guidance designed to help religious leaders “find creative solutions,” including holding in-person worship services of 10 people or fewer, holding online services or hosting a service of any size as long as participants stay in their cars and observe social distancing.
The church and pastor Kevin Wilson argue that Northam violated their religious freedom.
In its statement of interest, the DOJ said the church has presented a strong case that the governor’s order on gatherings “impermissibly interfered with the church’s free exercise of religion.”
Last week, Northam announced a multiphase plan to begin to ease restrictions. In the first phase, which Northam has said could begin as early as May 15, some businesses required to close may be permitted to open with social distancing measures put in place, and the temporary gatherings restriction may be modified for churches.
Vice President Mike Pence, who heads the White House Coronavirus Task Force, weighed in on the dispute Wednesday, saying he agrees with the church and the Justice Department.
Speaking on “The Brian Kilmeade Show” on Fox News Radio, Pence said ”even in the midst of a national emergency, every American enjoys our cherished liberties, including the freedom of religion.”
“The very idea that the Commonwealth of Virginia would sanction a church for having 16 people come to a Palm Sunday service, when I think the church actually seats about 250, was just beyond the pale, and I’m truly grateful for Attorney General William Barr standing by religious liberty,” Pence said.
For most people, the coronavirus causes mild or moderate symptoms, such as fever and cough that clear up within weeks. For some, especially older adults and those with existing health problems, it can cause more severe illness and death. The vast majority of people recover.