SAN FRANCISCO—On Friday, September 25, representatives from the United States Department of Justice sent a letter to San Francisco Mayor London Breed requesting that the city change current standards decreed by a recent Order of the Health Officer which state, “[only] one individual member of the public may enter the house of worship at a time.”
The Justice Department summarized the letter in an immediate news release later in the day, crediting authors Eric Dreiband, Assistant Attorney General for the Civil Rights Division, and David Anderson, U.S. Attorney for the Northern District of California. The letter’s content’s were reportedly an explanation “that the city’s policy of only allowing a single worshiper in places of worship regardless of their size, while allowing multiple patrons in other indoor settings including gyms, tattoo parlors, hair salons, massage studios, and daycares, is contrary to the Constitution and the nation’s best tradition of religious freedom. Individual rights, including the protections in the Bill of Rights, are always operative and restrain government action. Thus, even in times of emergency, when reasonable, narrowly-tailored, and temporary restrictions may lawfully limit our liberty, the First Amendment and federal statutory law continue to prohibit discrimination against religious institutions and religious believers.”
The September 14 Health Order, No. C19-07, “provides no reasoned explanation why its one-size-fits-all limit on indoor religious gatherings, regardless of size, is necessary or appropriate,” the letter reads. The order allows 50 people from different households to gather for outdoor gatherings including religious services or ceremonies. The same number is prescribed to outdoor political protests which, along with religious gatherings, are deemed “Special Gatherings” by The San Francisco Department of Public Health. Both indoor religious and political gatherings (such as presence at campaign headquarters) are limited to one person.
The Health Order allows gyms and fitness centers to serve 10 percent of the facility’s normal maximum occupancy or “the number of people who can maintain at least six feet of physical distance from each other in the facility at all times” or 12 feet of physical distance required where individuals “are engaged in an activity that may increase the breathing rate and/or intensity.” Childcare facilities are allowed to operate with 10 to 12 children in a group and retail establishments are enabled to operate at 50 percent capacity with 6-foot separation, 25 percent for indoor shopping centers.
Cited in the letter was the U.S. Supreme Court Case South Bay United Pentecostal Church v. Newsom, in which the U.S. Supreme Court denied a church’s request to enjoin California Governor Gavin Newsom’s Executive Order which limited attendance at places of worship to 25 percent of a building’s capacity or 100 people. Chief Justice Roberts held the restrictions abided by the First Amendment’s Free Exercise of Religion Clause since similar restrictions also affected secular activities.
Mentioned were the city’s two largest buildings for religious gatherings, Temple Sherith Israel and Saint Mary of the Assumption, which have capacities for 1,400 and 2,400 people respectively.
“These rules plainly discriminate against people of faith and their ability to gather and practice their faith at churches, synagogues, mosques, and other houses of worship. Put simply, there is no scientific or legal justification for permitting a 20,000 square foot synagogue to admit only one worshipper while allowing a tattoo parlor to accommodate as many patrons as it can fit so long as they are six feet apart.”
The press release included information on the letter’s background which originated from an April 27 directive given by Attorney General William P. Barr to both Dreiband and Matthew Schneider, the U.S. Attorney for the Eastern District of Michigan, “To review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic.”