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Justice Department: San Francisco Mayor London Breed's COVID-19 Rule For Places Of Worship Unconstitutional

SAN FRANCISCO (CBS SF) -- The U.S. Justice Department on Friday sent a letter to San Francisco Mayor London Breed saying that the city's current COVID-19 policy allowing only one congregant in places of worship at a time "is contrary to the Constitution and the nation's best tradition of religious freedom."

The Justice Department issued a statement Friday afternoon announcing that the letter explained why San Francisco could not limit places of worship -- regardless of size -- to a single congregant while "allowing multiple patrons in other indoor settings including gyms, tattoo parlors, hair salons, massage studios, and daycares."

The letter -- sent by Assistant Attorney General for the Civil Rights Division Eric Dreiband and U.S. Attorney for the Northern District of California David Anderson -- states that San Francisco's current COVID-19 policy treats secular businesses more favorably than houses of worship.

"San Francisco's treatment of places of worship raises serious concerns about religious freedom," the letter read. "In particular, the limitation of indoor worship to one congregant without regard to the size of the place of worship is draconian, out of step with the treatment afforded other similar indoor activities in San Francisco, wholly at odds with this Nation's traditional understanding of religious liberty, and may violate the First Amendment to the Constitution."

The letter acknowledged that the mayor has a duty to protect the citizens of San Francisco during the coronavirus pandemic, but goes on to say that no government in the U.S. "can attack religion by transforming a house of worship arbitrarily into a place for solitary confinement."

The letter stated that the First Amendment to the United States Constitution made the city's COVID-19 restriction illegal as it prohibits "the free exercise of religion," despite the current public health crisis.

"There is no pandemic exception to the United States Constitution and its Bill of Rights," the letter read.

The letter called on the city to immediately equalize its treatment of places of worship to comply with the First Amendment.

San Francisco City Attorney Dennis Herrera responded to the letter in a statement to KPIX by calling out the Justice Department for "lobbing careless legal threats." He added that San Francisco was "opening at the speed of safety" and that the city planned to allow larger gatherings at churches "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 said.

Herrera noted that the plan, which will be implemented next Wednesday, allows for indoor religious services at 25% capacity up to 50 people, and outdoor services up to 100 people, with safety protocols. These restrictions decrease if California moves San Francisco to the orange tier of its COVID-19 response plan next week, then indoor religious services could have up to 100 people and outdoor religious services up to 200 people, with safety protocols.

Herrera also took a shot at the federal government in his statement to KPIX, saying that "maybe the federal government should focus on an actual pandemic response."

"There is a reason that San Francisco has the lowest COVID-19 death rate of any major city in the country. We must be doing something right. Meanwhile, more than 200,000 Americans are dead from this virus," Herrera said.

The Justice Department has raised issues with California's COVID-19 policies regarding places of worship in the past. Back in May, Dreiband told Gov. Gavin Newsom that his then current plan to reopen California discriminates against churches.

San Francisco Archbishop Salvatore Joseph Cordileone has been outspoken in his criticism of COVID-related restrictions placed on church services by California health officials.

Last Sunday the archbishop led hundreds of Catholics in a "free the mass" march. In his speech to protesters, he slammed the city's regulations as an insult and a "mockery."

Earlier this month, an op-ed piece he wrote earned him a rebuke from House Speaker and San Francisco Congresswoman Nancy Pelosi.

Pelosi, who is Catholic, said she misses going to Sunday mass, but said the archbishop's call to allow larger public gatherings could put people's lives at risk.

"With all do respect to my archbishop, I think we should follow science on this," Pelosi said.

The Friday announcement by the Justice Department noted that on April 27, Attorney General William P. Barr had directed 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.

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