AG Barr threatens legal action against states COVID-19 orders that infringe on civil rights

By Samuel Smith, Deputy Managing Editor Tuesday, April 28, 2020

U.S. Attorney General William Barr has threatened to take legal action against state officials who violate people's civil rights by taking draconian measures to enforce stay-at-home orders. 

On Monday, Barr sent a two-page memo to federal prosecutors asking them to consider legal action against state and local governments that infringe upon citizens' civil liberties as they enforce state lockdown policies in response to the ongoing coronavirus pandemic. 

“If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court,” the memo reads. 

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In the past several weeks, orders restricting the types of businesses that can open and places people can gather have forced millions of people to stay home and numerous businesses, organizations and places of worship to suspend or alter their operations. 

Barr’s memo acknowledges that the COVID-19 pandemic has “required the imposition of extraordinary restrictions on all of our daily lives.” 

However, he cautioned that even in “times of emergency, the First Amendment and federal law prohibit discrimination against religious institutions and religious believers.” 

Barr's memo comes as churches in several states and localities have filed lawsuits in recent weeks against state and local authorities as some services have been shut down during the pandemic and citations have been issued to pastors and churchgoers. 

The churches claim that bans against large gatherings that don’t exempt in-person or drive-in worship services but allow people to pack into big-box stores violate their freedom of religion as guaranteed under the First Amendment.

Barr warned in his memo that legal restrictions on state and local authorities are “not limited to discrimination against religious institutions and religious believers” as there are other types of civil rights violations that can occur. 

“For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy,” he wrote. 

Specifically, the memo directs the Assistant Attorney General for Civil Rights Eric Dreiband and U.S. Attorney for the Eastern District of Michigan Matthew Schneider “to oversee and coordinate our efforts to monitor state and local policies and, if necessary, take action to correct them.”

Though her name is not mentioned in the memo, Barr’s direction to the Michigan attorney comes as Michigan Gov. Gretchen Witmer has imposed some of the strictest COVID-19 related policies in the country. Her stay-at-home order has led to protests outside the state capital. 

Whitmer’s order bars residents from traveling to in-state vacation homes and even prohibits stores from selling items such as paint, furniture, carpets, flooring and plants. 

Additionally, Whitmer’s order prohibits advertising of products that are not “groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.”

“Many policies that would be unthinkable in regular times have become commonplace in recent weeks, and we do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis. We must, therefore, be vigilant to ensure its protections are preserved, at the same time that the public is protected.”

Michigan is one of the states that has been hit hard by the pandemic. According to Johns Hopkins University & Medicine, there have been over 3,400 coronavirus-related deaths in the state. Nationwide, there have been over 990,000 cases and over 56,000 COVID-19-related deaths. 

Other protests against stay-at-home orders have been held outside of state capitols in Wisconsin and Pennsylvania. 

Some states are now starting to slowly reopen their economies as the infection rate has dropped in some hotspots. However, some fear that the easing of restrictions could lead to another wave of COVID-19 cases. 

Judges have affirmed the First Amendment rights of churches to gather during the pandemic.

On Friday, a federal judge ruled that a Pentecostal church in Mississippi may stay open for drive-in worship services after the church’s pastor was issued a citation for holding Easter services. 

In mid-April, a federal judge issued a temporary restraining order preventing the city of Louisville, Kentucky, from barring a church from holding a drive-in Easter worship service on grounds that doing so would violate their religious beliefs. 

Earlier this month, the Justice Department issued a statement of interest and an amicus brief in support of a Mississippi church where churchgoers were each fined $500 for attending a Wednesday night drive-in worship service. After the Justice Department’s intervention, the mayor of Greenville, Mississippi, said the fines would not be enforced. 

“The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions,” Barr vowed in the April 14 statement.