SF’s ‘one congregant’ rule draws federal rebuke

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SAN FRANCISCO – The U.S. Department of Justice on Friday sent a letter to San Francisco Mayor London Breed urging her to end the city’s “one congregant” rule for places of worship, cautioning the COVID-19-fueled restriction “may violate the First Amendment to the Constitution.”

Only one member of the public may enter a place of worship at a time, according to a city health order. The letter claims the same order is more favorable to a range of secular activities — for example, personal service providers can serve as many customers as they can space at six feet apart and retail establishments can operate at 50 percent of capacity.

“That we are dealing with a very serious public health crisis does not permit government to discriminate against religious worshipers by imposing a one-person-per-house-of-worship rule while permitting larger numbers of people to gather in tattoo parlors, hair salons, massage studios, and other places,” said Assistant Attorney General Eric Dreiband in a statement.

“There is no pandemic exception to the United States Constitution and its Bill of Rights,” he added.

The letter also claims the order does not provide a “reasoned explanation” why the one congregant rule is necessary or appropriate.

“This policy is not equal treatment that applies ‘to comparable secular gatherings,’ ” Dreiband and David Anderson, U.S. Attorney for the Northern District of California, wrote in the letter. “And indeed, in context, this restriction suggests hostility to religious people and the free exercise of religion.”

Dreiband and Anderson said they “understand and appreciate” the city’s goal of increasing indoor attendance at places of worship to 25 percent of capacity by the end of September.

“This would be an improvement over the current situation,” they wrote, “but would continue to burden religious exercise severely and unnecessarily, including for houses of worship with large capacity and room for proper social distancing protocols.”

The letter ultimately calls on Breed and the city “to change the standards to bring them in line with the Constitution and our nation’s best traditions of free religious exercise.”

In a statement to KPIX-TV, San Francisco City Attorney Dennis Herrera accused the Justice Department of “lobbing careless legal threats.” He also said the city is “opening at the speed of safety” and plans to allow larger gatherings at places of worship beyond what is described in the letter.

“It’s consistent with San Francisco’s careful approach and follows closely behind what the state of California allows,” Herrera told KPIX-TV.

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