DC Protects Protests But Discriminates Against Religious Worship

America was founded on the principle that people should be able to worship free of government interference. As any elementary school student knows (or should), that freedom–more than any other–is what motivated people to come to this New World. It was at the very heart of our founding. 

Yet too many of our elected leaders seem to have forgotten this basic principle. And now, some are imposing even more stringent limitations on churches in the name of fighting COVID.  

Those limitations on our churches are simply unconstitutional, and one church is rightly fighting back. On Tuesday, one of the largest evangelical churches in Washington D.C., Capitol Hill Baptist Church (CHBC), filed suit in federal district court challenging the city’s COVID-19 restrictions.  

Until the coronavirus pandemic and the District’s restrictions on worship, CHBC had met for in-person worship every single Sunday since February 27, 1878. CHBC does not have an online ministry, and has not conducted online services, because of its religious conviction that the Bible commands worshippers to meet together for worship. During the pandemic, the church has met in an open field in Virginia.  

Under the District’s Phase Two Order, outdoor church services are limited to 100 individuals, and on June 10th, CHBC filed a waiver application with the District of Columbia seeking permission to hold larger outdoor services. The request explained the church’s “theological conviction[],” that the ability to meet together was essential for a church. Thus, the church’s religious exercise had been substantially burdened because it had been unable to meet or to perform baptism or communion. CHBC pledged to socially distance each household and to require individuals over the age of ten to wear masks. The Mayor’s office denied the request on September 15th.

In its lawsuit, CHBC alleges that the District’s Phase Two Order discriminates against religious worship. The order exempts other, in-person outdoor gatherings from the 100-person limits. Restaurants, for instance, are exempt from the outdoor size limitations so long as they observe social distancing. So too for Farmers’ Markets. Likewise, the Order does not limit the number of children participating in outdoor activities at childcare facilities, but simply requires social distancing between classroom cohorts.

Even more shocking is the disparate treatment accorded religious worship and mass protests. While the District has restricted outdoor church attendance to no more than 100 people — regardless of social distancing precautions — the Mayor has personally appeared at and endorsed mass protests in the District. 

On June 6, 2020, Mayor Bowser delivered a speech to a gathering of tens of thousands of people, describing the large protest as “wonderful to see.” In addition, the city has worked to facilitate large scale protests in the District. The D.C. Police Department has repeatedly closed city streets to accommodate protests and marches. And the Mayor coordinated with the Commitment March to plan a five-hour event on the steps of the Lincoln Memorial. Thousands attended.

In its complaint, CHBC makes clear that it supports the right of all of these groups to exercise their First Amendment right to protest. In CHBC’s view, however, the “First Amendment protects both mass protests and religious worship.”  One would think that position uncontroversial, and yet, the Mayor has defended her differential treatment of protests and religious worship: “First Amendment protests and large gatherings are not the same,” she has argued, because “in the United States of America, people can protest.” 

But they can also meet together to worship. CHBC has a compelling argument that the District’s endorsement of large protests while banning outdoor worship violates First Amendment rights to freedom of speech and assembly, not to mention the Free Exercise Clause.  

The District’s coronavirus policies are twice unconstitutional. Under the Free Speech Clause, laws that restrict speech based on viewpoint are presumptively unconstitutional. The District’s policies plainly favor protest expression over religious expression. 

Second, the Supreme Court has held that where, as here, government restrictions on religious exercise are not neutral, they must satisfy strict scrutiny. The Free Exercise Clause, the Supreme Court has explained, bars even “‘subtle departures from neutrality’ on matters of religion.” Under the Free Exercise Clause, the government may not single out religious worship for disfavored treatment. And of course even a public health emergency does not allow the government to ignore the Constitution.  

Under our Constitution, the First Amendment applies regardless of content. Government simply cannot prefer one form of expression over another. In short, as Justice Alito recently explained, “respecting some First Amendment rights is not a shield for violating others.” 

Mayor Bowser and the District would do well to remember that.