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Source: United States Department of Justice

The Department of Justice today filed a statement of interest in a Colorado federal court supporting the First Amendment religious freedom claims of High Plains Harvest Church and its pastor. 

The statement of interest is part of Attorney General William P. Barr’s April 27, 2020 initiative directing Assistant Attorney General for Civil Rights, Eric Dreiband, and the U.S. Attorney for the Eastern District of Michigan, Matthew Schneider, to review state and local policies to ensure that civil liberties are protected during the COVID-19 pandemic. 

“Especially during a crisis like this, the ability of people of faith to be able to exercise their religion is essential,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “Colorado has offered no good reason for not trusting congregants who promise to use care in worship the same way it trusts diners inside a restaurant, or accountants, realtors or lawyers to do the same. The U.S. Department of Justice will continue to take action if states and localities infringe on the free exercise of religion or other civil liberties.”

“We appreciate the challenging position that the state and the governor face in trying to balance public safety with personal and religious freedoms,” said Jason Dunn, U.S. Attorney for the District of Colorado. “But when government restrictions cross the line into unconstitutional violations of religious liberty, it is my duty and that of the Department of Justice to engage and protect those interests.”

“As important as it is that we stay safe during these challenging times, it is also important for states to remember that we do not abandon all of our freedoms in times of emergency,” said Matthew Schneider, U.S. Attorney for the Eastern District of Michigan, who, with Assistant Attorney General Dreiband, is overseeing the Justice Department’s effort to monitor state and local polices relating to the COVID-19 pandemic. “Unlawful discrimination against people who exercise their right to religion violates the First Amendment, whether we are in a pandemic or not.” 

In response to the COVID-19 pandemic, Colorado’s Governor and the Colorado Department of Public Health and Environment (CDPHE) have issued various orders imposing limitations on in-person gatherings and, more recently, less restrictive rules for indoor service at restaurants. The guidance provides expressly that “[i]ndoor dine-in service can be held at 50% of the posted occupancy code limit and a maximum of 50 patrons,” if social distancing between parties of “eight people or fewer” is maintained, masks are worn, and other precautions are met. The rules for religious services in a place of worship are significantly more restrictive. Under guidance issued by CDPHE, religious gatherings inside a place of worship are permitted only “if physical distancing is observed and the gatherings are of 10 or fewer people in each room.” Places of worship thus are not allowed to host more than ten worshippers, even if they socially distance, and whether or not they are in the same party — unlike various businesses, including marijuana dispensaries, legal, accounting and real estate services, which may admit numerous customers into a single space so long as those customers socially distance, and unlike restaurants, which have been exempted from the public gathering limits and now may seat 50 customers, who may sit in parties where the members of the party are not socially distanced. 

In its statement of interest, the United States explains that because Colorado appears to be treating similarly situated non-religious activity, such as in-person dining in restaurants, better than places of worship these actions may constitute a violation of the church’s constitutional right to the free exercise of religion.

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