Barr signals DOJ support for lockdown protesters
When Attorney General William Barr this week directed U.S. prosecutors to safeguard civil liberties amid state-level pandemic orders, he signaled Justice Department support for lockdown protesters by highlighting religious and economic rights.
In a two-page memo, the nation’s top cop gave the clearest indication yet of the kind of battles federal prosecutors are likely to focus on. In doing so, Barr suggested the Department of Justice (DOJ) might back church groups and those seeking a swifter economic reopening while staying on the sidelines of fights over new limits on abortion and voting access.
“It’s extremely likely that the DOJ will play favorites,” said Lindsay Wiley, a law professor at American University. “I think it’s accurate to assume that DOJ will not intervene in a neutral way, but will instead intervene on behalf of plaintiffs asserting rights the administration favors.”
Barr on Monday directed the nation’s 93 U.S. attorneys to “be on the lookout” for health restrictions that could be running afoul of constitutional rights and “if necessary, take action to correct them.”
“We do not want to unduly interfere with the important efforts of state and local officials to protect the public,” Barr wrote. “But the Constitution is not suspended in times of crisis.”
The Supreme Court has long held that constitutional rights can be lawfully restricted to some degree when emergency health orders are in place. But the line demarcating where one begins and the other ends is something of a legal gray area.
The attorney general’s memo specifically mentioned constitutional bars on discrimination against “religious institutions and religious believers” and “disfavored speech,” as well as prohibitions against “undue interference with the national economy.”
Barr’s marching orders to U.S. attorneys appeared to align closely with Trump administration agenda items, including the defense of the president’s evangelical Christian backers, as well as support for those desiring a more aggressive economic revival heading into the general election.
Legal experts say it’s not surprising that the DOJ’s priorities would overlap with those of the White House.
“They’re picking and choosing where to intervene as a matter of prosecutorial discretion. That’s political, but it’s also ideological, and that’s one of the reasons elections matter,” Wiley said. “It’s not entirely illegitimate in my opinion.”
Barr has emerged as a staunch defender of religious liberty since becoming Trump’s attorney general early last year. In recent months, as state and local governments have implemented social distancing policies for residents, Barr has repeatedly warned that health orders cannot single out religious gatherings.
“The United States Department of Justice will continue to ensure that religious freedom remains protected if any state or local government, in their response to COVID-19, singles out, targets, or discriminates against any house of worship for special restrictions,” Barr said last month.
In mid-April, the DOJ submitted a court filing on behalf of a Mississippi Baptist church that challenged a local health restriction in order to offer drive-in church services. The church ultimately prevailed when city officials in Greenville dropped the case.
Legal experts say such input from the DOJ, known officially as a “statement of interest,” can help persuade a judge that a government health directive goes too far.
As the pandemic stretches into another month, religious liberty has increasingly become a rallying cry for conservative Christians, who make up a key part of Trump’s base. Those constituents roundly criticized New Jersey Gov. Phil Murphy (D) last month for his decision to include churches and other houses of worship in the state’s strict social distancing guidelines.
During a tense interview with Tucker Carlson on Fox News, Murphy was asked about constitutional protections after police broke up a rabbi’s funeral in early April at a synagogue in Ocean County, arresting 15 men.
“That’s above my pay grade, Tucker,” Murphy replied. “I wasn’t thinking of the Bill of Rights when we did this.”
Gary L. Bauer, the Trump-appointed commissioner of the U.S. Commission on International Religious Freedom, said he “cringed” when he saw Murphy’s interview. In an article for the Patriot Post this week, Bauer applauded Barr’s approach to balancing public health and civil liberties.
“One example of what Barr is concerned about is how churches have been singled out for different treatment,” Bauer wrote in response to the Barr memo. “Why is it okay for people to gather at Walmart but not at church?”
Legal experts say Barr might continue to press that question in court.
“Religious liberty is a place where the DOJ in the Trump administration has been bringing more and more affirmative litigation on behalf of church groups and other religious voices,” said Glenn Cohen, a professor at Harvard Law School. “I will be curious to see if this becomes more than a signal and if the 93 U.S. attorneys begin bringing more litigation.”
As state and local governments weigh when to ease restrictions, Trump has sent mixed messages about how involved his administration will be. But some experts say Barr’s memo may have laid the legal groundwork to help the administration accelerate the process.
The White House last month unveiled guidelines for a phased reopening of the economy that seemed to give wide latitude to states, with Trump telling governors: “You’re going to call your own shots.”
But the following day, Trump sent a series of tweets that appeared to back protesters in Minnesota, Michigan and Virginia, three potential battleground states with Democratic governors where extended stay-at-home orders and other restrictions have sparked a small backlash.
According to Wiley, of American University, the language in Barr’s memo about protected speech and national economic freedom could signal the DOJ’s willingness to further intervene on protesters’ behalf as legal challenges to health orders continue to mount.
“If police engage in enforcement against the ‘reopen’ protesters but not against health worker counterprotesters, that could amount to impermissible discrimination against disfavored speech,” she said.
Barr’s directive to prosecutors to monitor “interference with the economy” could give the DOJ other legal grounds to support a challenge to stay-at-home orders or restrictions on out-of-state visitors, Wiley added.
“It will be important to watch these filings to see whether they take a stronger stance against stay-at-home orders and other restrictions, perhaps under pressure from the president,” she said.
Morgan Chalfant contributed to this report.
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