Recently a pastor with Lighthouse Fellowship church in Chincoteague was issued a criminal summons for holding a church service with more than 10 people in attendance. To fight back, the Church filed a 50-page complaint in Norfolk Federal Court against Governor Northam alleging that religious activities are being targeted and restrained more so than its secular counterparts. The complaint alleges that the Governor’s ban violates the church’s rights to freedom of speech, free exercise of religion, and peaceable assembly under the First Amendment. Specifically, the complaint seeks an immediate injunction so that individuals who want to attend church may do so at their own risk.
The Governor's order relies upon Section 32.1-13 of the Virginia Code which grants the board of health wide-sweeping authority to draft an order for the purpose of suppressing communicable, contagious, and infectious diseases. Giving this order teeth is Section 32.1-27, which makes any person who willfully violates, refuses, fails or neglects to comply with this order guilty of a Class 1 misdemeanor. A Class 1 misdemeanor carries the potential for twelve months in jail and a $2,500 fine.
The separation of Church and State has always been a hotly contested issue. The First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause has led to hotly contested court battles which have resulted in things such as the removal of the Lord’s prayer in public schools, the removal of swearing in ceremonies for public office and the taking down of the ten commandments in courts of law. However, these hotly contested court battles did not involve the sweeping actions taken by state governments such as Virginia under a global pandemic. As the shutdowns continue and individuals are forced to pray remotely it will be interesting to see how this pans out.
As of the writing of this article churches in Kansas and Kentucky have reacted with similar lawsuits. On April 18th the US District Court in Kansas issued a temporary restraining order prohibiting the police from enforcing their state’s ban against church gatherings. In Indiana, the Governor has expressed that churches are “essential” and may stay open if they practice social distancing and good hygiene.
Although the First Amendment’s religion clauses have been heavily and hotly litigated in the past, they have not been tested under the events of the current state and national environment, and it remains to be seen whether our government can indeed lawfully “silence prayer” by prohibiting church gatherings like our state has done in Chincoteague.
This article was co-authored by our founder and lead Criminal Defense Attorney Daniel J. Miller and former attorney James Weaver. Dan is a Hampton Roads native and has spent nearly 20 years representing clients in criminal defense matters in Virginia Beach and throughout Hampton Roads. James is an Associate Attorney at the firm. His practice focuses primarily on family law issues If you are interested in speaking to Mr. Miller about a criminal charge relating to the First Amendment, or regarding any other criminal charge, please call our office today to schedule a consultation.”