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DOJ calls on San Francisco to end pandemic policy on places of worship

“There is no pandemic exception to the United States Constitution and its Bill of Rights," the Justice Department said in a letter to Mayor London Breed.
Image: San Francisco Mayor London Breed Announces New Homelessness Initiative
San Francisco Mayor London Breed in January. Justin Sullivan / Getty Images file

The U.S. Department of Justice asked San Francisco on Friday to end its one-congregant rule at places of worship during the coronavirus pandemic, warning the policy could violate the U.S. Constitution.

In a letter to Mayor London Breed, the DOJ said the rule of allowing only one worshipper inside religious centers while multiple patrons can go into gyms and personal care businesses infringes on the First Amendment right to exercise religion and discriminates against people of faith.

“No government in this free country can attack religion by transforming a house of worship arbitrarily into a place for solitary confinement," wrote Assistant Attorney General Eric Dreiband in the letter. “There is no pandemic exception to the United States Constitution and its Bill of Rights.”

City Attorney Dennis Herrera said rules for religious gatherings both indoors and out could change in a few days.

The letter is the latest example of the Trump administration butting heads with California and the nation's Democratic-run cities.

Dreiband was selected by Attorney General William P. Barr in April to ensure that civil liberties are protected during the Covid-19 pandemic, according to the Justice Department. He now heads the department's civil rights division.

Shortly after Dreiband's appointment, he sent a letter to California Gov. Gavin Newsom expressing concerns about how soon churches would be allowed to resume in-person services in the state.

The May letter took issue with California's plans at the time to allow the resumption of in-person religious services, which was scheduled to start after manufacturing and offices were allowed to reopen. It also said California's stay-at-home order did not treat religious activities and nonreligious activities equally.

San Francisco has been gradually reopening businesses in accordance with Newsom's new tiered system, which was unveiled in late August and sets guidelines for how and when to loosen restrictions for individuals and businesses. The four tiers are based on the risk of transmission and are applied evenly to the state's 58 counties.

San Francisco allowed nail and hair salons, tattoo parlors and gyms to reopen earlier this month with limited capacity. Places of worship were also allowed to resume operations but with only one congregant inside at a time. Up to 50 people are allowed to worship together outside, according to the city's department of health.

A request for comment from Breed's office was referred to Herrera, who said in an emailed statement that the rules were already scheduled to change and ease up in a few days.

"San Francisco is opening up at the speed of safety," he said. "This expansion is beyond what is described in the federal government’s letter. It's consistent with San Francisco’s careful approach and follows closely behind what the State of California allows."

Herrera pointed to San Francisco's low Covid-19 death rate and said the city "must be doing something right."

"Meanwhile, more than 200,000 Americans are dead from this virus," he said. "Maybe the federal government should focus on an actual pandemic response instead of lobbing careless legal threats."

San Francisco had nearly 11,000 confirmed coronavirus cases and 99 deaths as of Thursday, according to the California health department. California has more than 801,000 cases and 15,402 deaths, according to NBC News counts.