Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 1 of 20 PageID# 215

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA
Norfolk Division

LIGHTHOUSE FELLOWSHIP CHURCH, )

)
Plaintiff, )
)
v. )
) Case No. 2:20-cv-00204-AWA-RJK
RALPH NORTHAM, in his official capacity )
as Governor of the Commonwealth of Virginia, )
)
Defendant. )
__________________________________________)

THE UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF PLAINTIFF’S

MOTION FOR AN INJUNCTION PENDING APPEAL

The United States respectfully submits this Statement of Interest supporting Plaintiff

Lighthouse Fellowship Church’s (“Lighthouse”), motion for an injunction pending appeal filed

on May 2, 2020. ECF 18. The United States respectfully suggests that the Court erred in its

Memorandum Opinion and Order of May 1, 2020, ECF 16, denying Lighthouse’s Emergency

Motion for a Temporary Restraining Order and Preliminary Injunction, for the reasons below. 1

The Court denied that motion without a hearing, without any briefing from the Commonwealth

and without Lighthouse having the opportunity to reply to any justifications offered.

This case, as set forth in detail below, involves important questions of how to balance the

deference owed to public officials in addressing a pandemic threatening the health and safety of

the public with fundamental constitutional rights. For purposes of this filing, the United States

does not take a position on the ultimate question of whether the Commonwealth may have a

1
See Fed. R. Civ. P. 62(d); Personhuballah v. Alcorn, 155 F. Supp. 3d 552, 558 (E.D. Va. 2016)
(following preliminary injunction standards when ruling on a motion for a stay pending appeal).
1
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 2 of 20 PageID# 216

legally sufficient justification for treating Plaintiff differently from non-retail businesses or other

permitted assemblies that may be comparable. The Commonwealth has not yet responded to

Plaintiff’s allegations that it permits non-retail businesses, such as law or accounting offices, to

gather in numbers greater than ten so long as they use social distancing. Likewise, the

Commonwealth has not yet responded to Plaintiff’s allegations that various comparable secular

gatherings are permitted. Based on the materials before the Court, Plaintiff has demonstrated a

likelihood of success on the merits of its claim under the Free Exercise Clause of the U.S.

Constitution that the Commonwealth’s executive orders have prohibited religious gatherings at

places of worship, even with social distancing and personal hygiene protocols, while allowing

comparable secular gatherings to proceed with social distancing. It thus becomes the

Commonwealth’s burden to demonstrate that it has compelling reasons to treat Plaintiff

differently than similar non-religious businesses, and that it has pursued its objectives through

the least restrictive means. Because the Commonwealth has not yet filed any response, it has not

satisfied its burden.

On May 2, 2020, the United States Court of Appeals for the Sixth Circuit granted an

Injunction Pending Appeal in a case raising issues similar to those in this case, Maryville Baptist

Church, Inc. v. Beshear, No. 20-5427, slip op. (6th Cir. May 2, 2020) (per curiam). The Sixth

Circuit there concluded: “[t]he Governor has offered no good reason so far for refusing to trust

the congregants who promise to use care in worship in just the same way it trusts accountants,

lawyers, and laundromat workers to do the same.” Id. at 8.

Similarly, here, the Commonwealth has not explained why it differentiates and “refus[es]

to trust” this small congregation’s worship activities that, as alleged, follow social distancing and

personal hygiene protocols, while allowing and trusting non-retail businesses to gather more than

2
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 3 of 20 PageID# 217

ten people in such a fashion. As Plaintiff has made an initial showing that the Commonwealth’s

executive orders treat religious organizations less favorably than similar secular organizations,

and the Commonwealth has not yet carried its strict-scrutiny burden of justifying its differential

treatment of religion, the Court should grant Plaintiff’s motion and grant an injunction pending

appeal.

INTEREST OF THE UNITED STATES

The United States of America respectfully files this Statement of Interest pursuant to

28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests of the United

States in a suit pending in a court of the United States.” The United States also enforces

34 U.S.C. § 12601, which allows the United States to bring suit when law enforcement officers

engage in a pattern or practice that deprives individuals of their federal constitutional or statutory

rights.

The United States has a substantial interest in the preservation of its citizens’

fundamental right to the free exercise of religion, expressly protected by the First Amendment.

To that end, the United States regularly files statements of interest and amicus briefs on

important issues of religious liberty in courts at every level, from trial courts to the Supreme

Court of the United States. In addition, the Attorney General has issued comprehensive guidance

interpreting religious-liberty protections available under the United States Constitution and

federal law. Federal Law Protections for Religious Liberty, 82 Fed. Reg. 49668 (Oct. 26, 2017)

(“Attorney General Guidelines”). As relevant here, the Attorney General Guidelines explain that

“[a]lthough government generally may subject religious persons and organizations to neutral,

generally applicable laws,” government cannot “apply such laws in a discriminatory way” or

otherwise “target persons or individuals because of their religion.” Id. at 49669.

3
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 4 of 20 PageID# 218

The United States also has a strong interest, especially in the midst of the COVID-19

pandemic, in ensuring the development and maintenance of the best possible public health

strategies to combat the virus and protect the people of the United States from harm. But that

interest must be balanced with constitutional liberties. This case raises issues of national public

importance regarding the interplay between the government’s compelling interest in protecting

public health and safety from COVID-19 and citizens’ fundamental right to the free exercise of

religion.

BACKGROUND 2

This suit was brought by the Lighthouse Fellowship Church in Chincoteague Island,

Virginia against Governor Ralph Northam (the “governor” or the “Commonwealth”) alleging

that the governor has ordered restrictions on gatherings in response to the COVID-19 virus that

improperly restrict religious gatherings at places of worship while allowing comparable secular

gatherings, including the continued operation of any “business operations offering professional

rather than retail services.” ECF 1-3, ¶ 8.

Lighthouse “is a small congregation without the resources or equipment to . . . conduct

parking lot or drive-in services.” ECF 1, ¶ 9. This church has a specialized ministry catering to

the socioeconomically disadvantaged. “[M]any of the members it serves are recovering drug

addicts, former prostitutes” and others “trying to put their lives together, who do not have the

resources to watch worship services over the Internet.” Id. For “those members, Lighthouse is

their only family and assembling with their church family is everything.” Id.

2
The United States assumes the truth of the facts alleged in the complaint and reflected in the
accompanying exhibits for purposes of this brief.
4
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 5 of 20 PageID# 219

According to the complaint, the Town of Chincoteague Police Department has

understood the governor’s orders to prohibit Lighthouse from hosting religious services with

more than ten people and has enforced these orders against the church. Specifically, the Town of

Chincoteague Police Department “imposed criminal sanctions against [its] religious gatherings

that included 16 people . . . even though these 16 people were separated by more than six feet in

the 225-seat sanctuary.” ECF 1, ¶ 2 (emphasis omitted). Indeed, on April 5, 2020, Lighthouse’s

pastor, Kevin Wilson, was issued a criminal citation and summons because of this sixteen-person

worship service. ECF 1, ¶ 8; ECF 1-7. During that service, Lighthouse maintained “social

distancing and personal hygiene protocols, including extensive and enhanced sanitizing of

common surfaces in Lighthouse’s building prior to the service,” and “requir[ed] attendees to

remain at least six feet apart and use hand sanitizer prior to entering and during movement inside

Lighthouse’s building.” ECF 1, ¶ 54.

Over the last two months, the governor has issued a series of Executive Orders

prohibiting religious gatherings of more than ten people, while permitting secular gatherings of

more than ten people to occur under an array of circumstances (collectively, the “Orders”).

Governor Northam’s Executive Order Amended Number Fifty-Three issued on April 15, 2020,

bans “all public and private in person gatherings of more than 10 individuals.” ECF 1-3, ¶ 1.

Executive Order Number Fifty-Five, which Governor Northam issued on March 30, 2020,

further specified that prohibited activities “include[] parties, celebrations, religious, or other

social events.” ECF 1-4, ¶ 2 (emphasis added). Violations of the Orders are charged criminally

and—according to the Virginia State Police—“can result in an individual[ ] or business being

charged with a class one misdemeanor, which carries up to a year in jail and $2,500 fine.” ECF

1-5, at 1.

5
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 6 of 20 PageID# 220

The Orders, however, permit various secular activities resulting in gatherings of more

than ten people, so long as “to the extent possible, [they] adhere to social distancing

recommendations, enhanced sanitizing practices on common surfaces, and other appropriate

workplace guidance from state and federal authorities while in operation.” ECF 1-3, ¶ 6. First,

the Orders permit any and all “business operations offering professional rather than retail

services [to] remain open,” with only an advisory that “they should utilize teleworking as much

as possible.” ECF 1-3, ¶ 8; see also ECF 1-4, ¶ 2.a (excluding from the ten-person gathering

limit any business “not required to close to the public under Executive Order 53”). The

Commonwealth publicly confirmed that “[n]othing in the Executive Order impacts business

sectors that are not explicitly listed” such that the prohibitions “only cover[] (1) recreation and

entertainment businesses, (2) brick and mortar non-essential retail businesses, and (3)

restaurants, dining establishments, food courts, breweries, microbreweries, distilleries, wineries,

tasting rooms, and farmers markets.” 3 Accordingly, the Orders do not limit the ability of

employees of any non-retail business, including but not limited to professional services

businesses, to gather. The Orders impose no limit, for example, on the ability of the workforce

to assemble in conference rooms or anywhere else at those worksites. See id.

Second, the Orders contain various exceptions authorizing gatherings of more than ten

individuals across an array of “retail businesses,” including “[b]eer, wine, and liquor stores,”

“[h]ome improvement, hardware, building material, and building supply retailers,”

“[l]aundromats and dry cleaners,” and any “department store” that includes a food or pharmacy

section. ECF 1-3, ¶ 5. Third, all other “brick and mortar retail business[es]” not specifically

3
See Virginia’s Statewide Stay at Home Order: Frequently Asked Questions, “I am not a
business sector explicitly listed in the Executive Order, but I believe that I am an essential
business. What should I do?,” https://www.virginia.gov/coronavirus/faq/.
6
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 7 of 20 PageID# 221

exempted from the ten-person limit “may continue to operate” if they “limit all in-person

shopping to no more than 10 patrons per establishment” with social distancing. Id. ¶ 6. The

Orders do not impose any numerical caps on the number of staff members who can be present in

such retail businesses to service those ten patrons. See id.

Lighthouse has submitted photographs reflecting application of these exceptions in

practice. For example, some photographs show that various big-box retail stores remain open

and are drawing large crowds inside the stores, as evidenced by full parking lots of vehicles. See

ECF 1, ¶¶ 59-60 (declaration averring that “there were 268 cars in the WalMart parking lot,”

“156 cars in the Target parking lot,” and “162 cars in the parking lot” of Lowe’s). A photograph

of one of the governor’s press conferences shows the use of social distancing in an enclosed

space where more than ten people have gathered. See ECF 1, ¶ 58.

Lighthouse filed this suit on April 24, 2020, raising claims under, inter alia, the Free

Exercise Clause of the First Amendment to the United States Constitution. This Court denied

Lighthouse’s Emergency Motion for a Temporary Restraining Order and Preliminary Injunction

on May 1, 2020. ECF 16.

For the reasons set forth below, the United States believes that the church has set forth a

strong case that the Orders, by exempting other activities permitting similar opportunities for

in-person gatherings of more than ten individuals, while at the same time prohibiting churches

from gathering in groups of more than ten—even with social distancing measures and other

precautions—has impermissibly interfered with the church’s free exercise of religion. Unless the

Commonwealth can prove that its disparate treatment of religious gatherings is justified by a

compelling reason and is pursued through the least restrictive means, this disparate treatment

violates the Free Exercise Clause, and the Orders may not be enforced against the church. This

7
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 8 of 20 PageID# 222

proof simply has not occurred because the Commonwealth has not yet submitted any argument

or evidence in this case.

This is not to say that the Commonwealth must necessarily permit live, indoor church

gatherings. As discussed below, there are good reasons to discourage gatherings of more than

ten people and to encourage people to stay home whenever possible. But the Free Exercise

Clause generally mandates that restrictions on gatherings be applied equally. Thus, an order

purportedly aimed at promoting social distancing cannot impose a greater restriction on religious

gatherings than similar secular gatherings absent the most compelling, narrowly tailored reasons.

It will be difficult for the Commonwealth to justify having one set of rules that allows for secular

gatherings—such as in-person operations for any non-retail business and various other

exemptions permitting large-scale retail gatherings—while denying to Lighthouse the ability to

worship in modest numbers with appropriate social distancing and sanitizing precautions.

ARGUMENT

I. Constitutional Rights Are Preserved During a Public Health Crisis

The federal government, the District of Columbia, and all fifty States have declared

states of emergency, and have taken unprecedented and essential steps to contain the spread

of the novel coronavirus and the consequences of the life-threatening COVID-19 pandemic. 4

The President issued “Coronavirus Guidelines for America,” which, among other measures,

urge the public to “follow the directions of [their] state and local authorities,” to “avoid

social gatherings in groups of more than 10 people” and to “use drive-thru, pickup, or

4
See, e.g., Presidential Proclamation, Proclamation on Declaring a National Emergency
Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020),
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-
concerning-novel-coronavirus-disease-covid-19-outbreak/.

8
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 9 of 20 PageID# 223

delivery options” instead of “eating or drinking at bars, restaurants, and food courts.” 5 The

Centers for Disease Control and Prevention recommended that individuals “[s]tay at home as

much as possible” and when in public keep “about 6 feet” away from others. 6 States and

localities, in turn, imposed a variety of measures, including mandatory limitations on

gatherings. And more recently, President Trump also “unveiled Guidelines for Opening Up

America Again, a three-phased approach based on the advice of public health experts” to

“help state and local officials when reopening their economies, getting people back to work,

and continuing to protect American lives.” 7 Following these guidelines is the best path to

swiftly ending COVID-19’s profound disruptions to our national life and resuming the

normal economic life of our country. Citizens who seek to do otherwise are not merely

assuming risk with respect to themselves, but are exposing others to the same

danger. Accordingly, state and local governments, seeking to protect the public health, are

restricting in-person assemblies, including religious assemblies.

Moreover, the Constitution does not hobble government from taking necessary,

temporary measures to meet a genuine emergency. According to the Supreme Court, “in

every well-ordered society charged with the duty of conserving the safety of its members the

rights of the individual in respect of his liberty may at times, under the pressure of great

dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety

of the general public may demand.” Jacobson v. Commonwealth of Massachusetts, 197 U.S.

5
The President’s Coronavirus Guidelines for America (Mar. 16, 2020),
https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirus-
guidance_8.5x11_315PM.pdf.
6
Centers for Disease Control and Prevention, How to Protect Yourself and Others (Apr. 18,
2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention-H.pdf.
7
Guidelines: Opening Up America Again (April 16, 2020),
https://www.whitehouse.gov/openingamerica/.
9
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 10 of 20 PageID# 224

11, 29 (1905). In Jacobson, for example, the Court explained that “[a]n American citizen

arriving at an American port” who had traveled to a region with yellow fever “may yet, in

some circumstances, be held in quarantine against his will.” Id. The “settled rule [from

Jacobson],” a court of appeals recently noted, “allows the state to restrict, for example, one’s

right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.”

In re Abbott, 954 F.3d 772, 784 (5th Cir. 2020). And, critically, “[t]he right to practice

religion freely does not include the liberty to expose the community . . . to communicable

disease.” Prince v. Massachusetts, 321 U.S. 158, 166 (1944). Emergency public health

measures such as gathering limitations and social distancing requirements in response to

COVID-19 are evaluated under the Supreme Court’s decision in Jacobson. Courts owe

substantial deference to government actions, particularly when exercised by states and

localities under their police powers during a bona fide emergency.

But there is no pandemic exception to the Constitution and its Bill of Rights. Indeed,

“individual rights secured by the Constitution do not disappear during a public health crisis.” In

re Abbott, 954 F.3d at 784. These individual rights, including the protections in the Bill of

Rights made applicable to the states through the Fourteenth Amendment, are always operative

and restrain government action. Accordingly, the Supreme Court has instructed courts to

intervene “if a statute purporting to have been enacted to protect the public health, the public

morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all

question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197

U.S. at 31 (emphasis added). Thus, if the record establishes a “plain, palpable” violation of

constitutional rights, then a court must grant relief. See In re Abbott, 954 F.3d at 784. Courts

reviewing measures designed to address the “society-threatening epidemic” of COVID-19 should

10
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 11 of 20 PageID# 225

be vigilant to protect against clear invasions of constitutional rights while ensuring they do “not

second-guess the wisdom or efficacy of the measures” properly enacted by the democratic

branches of government, on the advice of public health experts. Id. at 784-85.

II. The Free Exercise Clause Prohibits Unequal Treatment of Religious Individuals and
Organizations

A. The Free Exercise Clause guarantees to all Americans the “right to believe and

profess whatever religious doctrine [they] desire[].” Emp’t Div. v. Smith, 494 U.S. 872, 877

(1990). It also protects their right to act on these beliefs, through gathering for public worship as

in this case, or through other acts of religious exercise in their daily lives. While the protections

for actions based on one’s religion are not absolute, id. at 878-79, among the most basic

requirements of the Free Exercise Clause are that government may not restrict “acts or

abstentions only when they are engaged in for religious reasons, or only because of the religious

belief that they display,” id. at 877, nor “target the religious for special disabilities based on their

religious status,” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019

(2017) (citation and internal quotation marks omitted); see also Attorney General Guidelines, 82

Fed. Reg. at 49672. To determine whether a law impermissibly targets religious believers or

their practices, the Supreme Court has directed courts to “survey meticulously” the text and

operation of a challenged law to ensure that it is neutral and of general applicability. Church of

the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534 (1993). The Court explained:

“The principle that government, in pursuit of legitimate interests, cannot in a selective manner

impose burdens only on conduct motivated by religious belief is essential to the protection of the

rights guaranteed by the Free Exercise Clause.” Id. at 543; see also Attorney General

Guidelines, 82 Fed. Reg. at 49672.

11
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 12 of 20 PageID# 226

Under the Free Exercise Clause, a law or rule, or the application of a law or rule, that is

not both neutral and generally applicable is subject to heightened scrutiny. Church of the Lukumi

Babalu Aye, 508 U.S. at 531.

A law or rule is not neutral if it singles out particular religious conduct for adverse

treatment; treats the same conduct as lawful when undertaken for secular reasons but unlawful

when undertaken for religious reasons; “visits gratuitous restrictions on religious conduct”; or

“accomplishes . . . a religious gerrymander, an impermissible attempt to target [certain

individuals] and their religious practices.” Id. at 533-35, 538 (citations and internal quotation

marks omitted); see also Attorney General Guidelines, 82 Fed. Reg. at 49672.

A law is not generally applicable if “in a selective manner [it] impose[s] burdens only on

conduct motivated by religious belief,” including by “fail[ing] to prohibit nonreligious conduct

that endangers [its] interests in a similar or greater degree than does” the prohibited conduct.

Church of the Lukumi Babalu Aye, 508 U.S. at 534; see also Attorney General Guidelines, 82

Fed. Reg. at 49672. In Church of the Lukumi Babalu Aye, the Court found that the challenged

ordinances were “underinclusive with regard to the [government’s] interest in public health”

because they outlawed the religious conduct at issue but failed to prohibit various nonreligious

conduct that had an equal or greater impact on public health. 508 U.S. at 543-45. The

ordinances were thus not generally applicable. Id.

“A law is underinclusive, and thus not generally applicable, when it fails to prohibit

secular activity that endangers the same interests to a similar or greater degree than the

prohibited religious conduct.” First Baptist Church v. Kelly, No. 20-1102-JWB, 2020 WL

1910021, at *6 (D. Kan. Apr. 18, 2020); accord Central Rabbinical Congress of U.S. & Canada

v. New York Dep’t of Health, 763 F.3d 183, 197 (2d Cir. 2014) (A law is not generally applicable

12
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 13 of 20 PageID# 227

if it “is substantially underinclusive such that it regulates religious conduct while failing to

regulate secular conduct that is at least as harmful to the legitimate government interests

purportedly justifying it.”); Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012) (“If the law

appears to be neutral and generally applicable on its face, but in practice is riddled with

exemptions . . . the law satisfies the First Amendment only if it ‘advance[s] interests of the

highest order and [is] narrowly tailored in pursuit of those interests.’” (citation omitted)); see

also Church of the Lukumi Babalu Aye, 508 U.S. at 534 & 538; Attorney General Guidelines, 82

Fed. Reg. at 49672.

A “prohibition that society is prepared to impose upon [religious] worshippers but not

upon itself,” the Supreme Court held, is not generally applicable and is subject to strict scrutiny.

Church of the Lukumi Babalu Aye, 508 U.S. at 545 (citation omitted); see also American Life

League, Inc. v. Reno, 47 F.3d 642, 654 (4th Cir. 1995) (recognizing that a law would not be

generally applicable if the same conduct is not “outlawed for all,” or if a violation under a law

depended on “whether a violator acts on the basis of religious conviction or temporal views”).

Accordingly, the Supreme Court’s Free Exercise Clause decisions instruct this Court to

“survey meticulously,” Church of the Lukumi Babalu Aye, 508 U.S. at 534, the risks and

character of the various activities the state chooses to permit. “All laws are selective to some

extent, but categories of selection are of paramount concern when a law has the incidental effect

of burdening religious practice. The Free Exercise Clause protect[s] religious observers against

unequal treatment.” See id. at 542 (internal citation omitted).

Here, the Court must determine whether the Commonwealth’s distinctions between

religious and secular gatherings are truly neutral and generally applicable. In other words, the

13
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 14 of 20 PageID# 228

Court must ensure that like things are treated as like, and that religious gatherings are not singled

out for unequal treatment.

If the Court determines that the Orders fail to prohibit secular activities comparable to

Lighthouse’s gathering of more than ten individuals, then the Court must review the

Commonwealth’s purported justifications and determine if they meet strict scrutiny, i.e., whether

the Commonwealth has demonstrated a compelling governmental interest, pursued through the

least restrictive means. See id. at 546 (“The compelling interest standard that we apply . . . is not

‘water[ed] . . . down’ but ‘really means what it says.’” (internal citation omitted)); see also Jesus

Christ Is The Answer Ministries, Inc. v. Baltimore County, Md., 915 F.3d 256 (4th Cir. 2019) (“A

government decision fails strict scrutiny if it is not narrowly tailored to advance a compelling

state interest.”).

The Court must be appropriately deferential to the expertise of public health officials in

evaluating potential distinctions between secular gatherings listed in the Orders and religious

gatherings. See Jacobson, 197 U.S. at 31; In re Abbott, 954 F.3d at 784-85. But such deference

will not justify action that is “beyond all question, a plain, palpable” violation of free exercise

principles. Jacobson, 197 U.S. at 31; see also In re Abbott, 954 F.3d at 784-85. Thus, if the

Court determines that the Orders plainly are not neutral and generally applicable, then the Court

may sustain their disparate treatment of religious gatherings only if it meets the demands of strict

scrutiny.

B. In prohibiting church services or other religious gatherings that exceed ten people,

despite permitting various other gatherings that may result from secular activities, the

Commonwealth’s Orders appear, at least, not to be generally applicable.

14
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 15 of 20 PageID# 229

The Orders’ exemption of all non-retail businesses, including professional services, from

the mass-gathering limit, is not generally applicable. Under this exemption, a large law firm,

real estate firm, or any other non-retail business, such as a production facility, is free to operate

using its entire workforce, without any limits on the size of meetings or any prohibitions on

gathering in conference rooms or any other part of these offices. As the Supreme Court made

clear in Church of the Lukumi Babalu Aye, a “prohibition that society is prepared to impose upon

[religious worshippers] but not upon itself,” is not generally applicable. 508 U.S. at 545 (citation

omitted). Or as then-Judge Alito explained, “[a] law fails the general applicability requirement if

it burdens a category of religiously motivated conduct but exempts or does not reach a

substantial category of conduct that is not religiously motivated and that undermines the

purposes of the law to at least the same degree as the covered conduct that is religiously

motivated.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004). And this is what the

Sixth Circuit held recently in Maryville Baptist Church, Inc. v. Beshear, No. 20-5427, slip op.

(6th Cir. May 2, 2020) (per curiam). The Sixth Circuit determined that because “[t]he Governor

has offered no good reason so far for refusing to trust the congregants who promise to use care in

worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the

same,” id. at 8, a rule was not generally applicable under Church of the Lukumi Babalu Aye and

strict scrutiny applied. Id. at 6, 8.

The inconsistent treatment in the Orders of conduct that appears to endanger the

Commonwealth’s interest to a similar degree to permitted activities shows, on this record, that

the Commonwealth has not acted in a generally applicable manner. 8 It is thus incumbent on the

8
Because the Orders are not generally applicable, strict scrutiny applies, and the Court need not
reach the issue of whether the Orders are neutral toward religion. The United States notes,
however, that “[n]eutrality and general applicability are interrelated, and . . . failure to satisfy one

15
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 16 of 20 PageID# 230

Commonwealth to show how it is in fact not treating Lighthouse in a disparate manner. It is not

possible for the Commonwealth to do so on this record because it has not yet responded to the

motion for a TRO or preliminary injunction. Likewise, Lighthouse has made at least an initial

showing of irreparable injury. See Stuart Circle Parish v. Board of Zoning Appeals of City of

Richmond, 946 F. Supp. 1225, 1235 (E.D. Va. 1996) (recognizing that “plaintiffs will suffer

irreparable injury [where] they will be prevented from practicing the free exercise of their

religion”). And the Commonwealth has not come forward with any reasons why the equities and

public interest would weigh against Plaintiff’s proposed gatherings, which, as alleged, serve an

essential function for its congregants while complying with all social distancing and sanitation

guidelines. Thus, on this record, a preliminary injunction should have issued and an injunction

pending appeal is warranted.

C. The United States does not take a position in this Statement on the advisability of

in-person gatherings in Virginia or in any of its localities at this time, as the proper response to

the COVID-19 pandemic will vary over time depending on facts on the ground. But the

Commonwealth cannot treat religious gatherings less favorably than other similar, secular

gatherings. To be clear, this principle does not prevent a government from seeking to establish

“that mass gatherings at churches [of the sort Lighthouse proposes] pose unique health risks that

requirement is a likely indication that the other has not been satisfied.” Church of the Lukumi
Babalu Aye, 508 U.S. at 531. The value judgment inherent in providing exemptions for secular
activities that impact the Commonwealth’s interests while not providing exemptions for
Plaintiff’s religious activities tends to indicate that the Commonwealth’s actions may not be
religion-neutral. See Fraternal Order of Police v. Newark, 170 F.3d 359, 365 (1999) (Alito, J.)
(“[I]n Smith and Lukumi, it is clear . . . the Court’s concern was the prospect of the government’s
deciding that secular motivations are more important than religious motivations”); id. at 366
(heightened scrutiny attaches when government “makes a value judgement in favor of secular
motivations, but not religious motivations”).

16
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 17 of 20 PageID# 231

do not arise” in the context of the activities that the Orders permit. First Baptist Church, 2020

WL 1910021 at *7; see infra Part III. As discussed in Part III, however, the Commonwealth has

not yet asserted any such carefully tailored approach, and Lighthouse would be entitled to relief

unless the Commonwealth can carry its burden on strict scrutiny. See, e.g., id. at *3 & 7 (holding

that “secular facilities that are still exempt from the mass gathering prohibition or that are given

more lenient treatment,” including “airports, childcare locations, hotels, food pantries and

shelters, detoxification centers,” “shopping malls,” and “office spaces,” demonstrated religious

targeting that failed strict scrutiny and called for a temporary restraining order against the Kansas

Governor’s COVID-19 Order).

III. The Compelling Interest / Least Restrictive Means Test Is a Searching Inquiry

A law burdening religious practice that is not neutral or not of general application must

undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law

restrictive of religious practice must advance “‘interests of the highest order’” and must be

narrowly tailored in pursuit of those interests. Church of the Lukumi Babalu Aye, 508 U.S. at

546. “The compelling interest standard that we apply . . . is not ‘water[ed] . . . down’ but ‘really

means what it says.’” Id; see also Axson-Flynn, 356 F.3d at 1294 (Where a law or rule is not

neutral and generally applicable, defendants “face the daunting task of establishing that the

requirement was narrowly tailored to advance a compelling governmental interest.”). This is a

difficult standard for the Commonwealth to meet.

As a general matter, prohibiting large gatherings to slow the spread of COVID-19

undeniably advances a compelling government interest. The Fifth Circuit has recently

recognized “the escalating spread of COVID-19, and the state’s critical interest in protecting the

public health.” In re Abbott, 954 F.3d at 778. Moreover, the Supreme Court has noted that

17
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 18 of 20 PageID# 232

“‘context matters’ in applying the compelling interest test, and has emphasized that strict

scrutiny’s fundamental purpose is to take ‘relevant differences’ into account.” Gonzales v. O

Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 431 (2006). For example, in

Cutter v. Wilkinson, the Supreme Court applied the compelling interest standard in a manner that

directed that prison administrators be afforded deference on what constitutes safety and good

order. 544 U.S. 709, 723 (2005). Similarly, here, a court must apply this standard in the context

of the pandemic.

However, that is not the end of the inquiry. In O Centro, the Supreme Court considered

under the federal RFRA whether banning a religious group from using a particular controlled

substance in its worship service was supported by the compelling interest of enforcing the drug

laws. See O Centro, 546 U.S. at 428-39. The Court recognized that while enforcing the drug

laws undoubtedly constitutes a compelling interest as a general matter, the government had to

show more: a compelling interest in applying those laws to the small religious group that sought

to use a drug in religious ceremonies that was not a sought-after recreational drug and thus not

prone to diversion. Drawing on its Free Exercise Clause precedents, the Supreme Court held that

courts must look “beyond broadly formulated interests justifying the general applicability of

government mandates and scrutinize[ ] the asserted harm of granting specific exemptions to

particular religious claimants.” Id. at 431. And given that “a law cannot be regarded as

protecting an interest of the highest order . . . when it leaves appreciable damage to that

supposedly vital interest unprohibited,” the existence of other exemptions for similar conduct

will be relevant in determining whether denying the desired religious exemption survives strict

scrutiny. Id. at 433.

18
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 19 of 20 PageID# 233

Because a compelling interest must be evaluated in context rather than by reference to a

broad general principle such as health or safety, and because the “least-restrictive-means

standard is exceptionally demanding,” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 728

(2014), a court must engage in a searching inquiry.

The ultimate question for this Court, then, is whether the Commonwealth’s prohibition on

in-person religious worship exceeding ten people to Lighthouse’s sixteen-person gathering—

while exempting all non-retail businesses and others from the ten-person limit—furthers a

compelling interest, and whether there is no less restrictive measure the Commonwealth could

use to achieve that interest while allowing the church to hold its services. If, in this

fact-intensive and context-laden analysis, the Court determines that there are no “relevant

differences,” O Centro, 546 U.S. at 431-32, with regard to efficacy in slowing the spread of

COVID-19, between allowing the church to meet as proposed and allowing these various

preferred gatherings, then the Commonwealth’s Orders must yield to the church’s sincerely held

religious exercise. At this stage of the case, where the Commonwealth has yet to respond, it is

not possible to reach that conclusion.

CONCLUSION

The United States respectfully requests that the Court consider these arguments in

deciding the Plaintiff’s Motion for an Injunction Pending Appeal. The facts on this record show

that the Commonwealth has imposed limits on religious activity it has not imposed on

comparable secular activities. If proven, the facts alleged in Lighthouse’s complaint would thus

establish a Free Exercise violation unless the Commonwealth demonstrates that its actions satisfy

the demanding strict scrutiny standard. The Commonwealth has not yet filed its response and

has introduced no evidence. It therefore has not satisfied its burden. Accordingly, based on this

19
Case 2:20-cv-00204-AWA-RJK Document 19 Filed 05/03/20 Page 20 of 20 PageID# 234

Court’s decision to deny the motion for a preliminary injunction at this stage, the United States

respectfully requests that the Court either grant the Injunction Pending Appeal, or in the

alternative, hold a hearing on Plaintiff’s motion to ensure that Defendant’s responses can be

evaluated.

Dated: May 3, 2020

Respectfully submitted,

ERIC S. DREIBAND
Assistant Attorney General

G. ZACHARY TERWILLIGER
United States Attorney

ALEXANDER V. MAUGERI
Deputy Assistant Attorney General

ELLIOTT M. DAVIS
ERIC W. TREENE
Special Counsels

/s/ Jennifer E. Flurry

Jennifer E. Flurry, VSB No. 80149
Office of the United States Attorney
101 West Main Street, Suite 8000
Norfolk, Virginia 23510
Telephone: (757) 441-3160
Facsimile: (757) 441-6689
Email: jennifer.flurry@usdoj.gov

Counsel for the United States of America

20