US judges deny church relief as LA County says religious services are essential

Does a recent U.S. Supreme Court ruling mean churches will soon be able to hold in-person services without restrictions? The past few days have brought mixed signals affecting multiple ongoing cases in California.

On Saturday, Los Angeles County announced it was dropping a ban on in-person worship services. According to the new order from the Department of Public Health, the list of essential activities now includes: "attending in-person faith-based services or otherwise engaging in faith-based practices at a place of worship."

The order still requires attendees to wear face masks and stay 6 feet apart, providing an opening for the government to continue intervening in church activities. But the order could affect ongoing litigation with a church that had challenged the county's orders in County of Los Angeles v. Grace Community Church of the Valley, 20STV30695 (L.A. Super. Ct., filed Aug. 14, 2020). The church and its pastor, John MacArthur, face a superior court hearing on Jan. 15 regarding their request for discovery to defend against contempt charges, fines and a threat of jail. They are represented by the Thomas More Society and LiMandri & Jonna LLP in Rancho Santa.

"It's very significant," said Paul M. Jonna, a partner with LiMandri & Jonna LLP. "They lifted the numerical caps and percentages, and allowed indoor worship with social distancing, which is what we've been advocating in all of our cases from the very beginning. ... It really renders the relief the county is seeking in the case moot."

But on Monday, two separate federal courts ruled against California churches challenging Gov. Gavin Newsom's restrictions on church attendance and practice. U.S. District Judge Cynthia A. Bashant in San Diego, citing the Supreme Court ruling in her decisions, nevertheless denied South Bay Pentecostal Church's request for a restraining order against Newsom's limits on church attendance.

Newsom's order is more narrowly tailored than the one the Supreme Court overturned in Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020), Bashant wrote. The judge also noted the court already turned away one opportunity to intervene in South Bay United Pentecostal Church v. Newsom, 3:20-cv-00865-BAS-AHG (S.D. Cal., filed May 8, 2020).

Nevertheless, attorneys for churches say they are optimistic the tide is turning against further restrictions. Attorney Harmeet K. Dhillon, who is helping represent South Bay Pentecostal as the CEO for the Center for American Liberty, said her co-counsel in the case has already appealed to the 9th U.S. Circuit Court of Appeals.

"We believe Judge Bashant's ruling in that case is inconsistent with the Supreme Court's guidance," Dhillon said.

She noted the appellate court quickly vacated and remanded an earlier appeal in the case. Dhillon also said a growing number of attorneys of a variety of political stripes have grown increasingly worried about government restrictions during the pandemic.

"I think it's going to be interesting to see what the 9th Circuit does," Dhillon added. "We are definitely not giving up."

California judges continue to rule that the New York Diocese ruling still allows the state and counties significant latitude to limit in-person services.

U.S. District Court Judge Jesus G. Bernal in the Central District made a ruling to that effect on Monday in a different church case, saying the high court had decided the New York Diocese case on free exercise grounds that were not relevant to the case before him, Harvest Rock Church, Inc. v. Newsom, 2:20-cv-06414-JGB-KK (C.D. Cal., filed July 17, 2020).

He cited Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990). "If a law is neutral and of general applicability, that law 'need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice,'" Bernal wrote.

"The First Amendment has not taken a sabbatical," Bernal wrote. "Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms."

"They found incorrectly that the complete ban on indoor worship throughout the entire was narrowly tailored," Jonna said. "There's no way that's going to withstand appellate review."

Then, on Tuesday, attorneys for the State of California and the County of Santa Clara applied for a show of cause in a contempt case against a San Jose pastor. Earlier this month Judge Peter H. Kirwan ordered Pastor Michael McClure held in contempt for continuing to hold services.

If the contempt order stands, the court could order McClure to pay hundreds of thousands of dollars in California v. Calvary Chapel San Jose, 20CV372285 (Santa Clara Super. Ct., filed Oct. 27, 2020).

Newsom's office and the California Department of Public Health responded to a request for comment by clarifying that churches are covered by the Dec. 6 supplemental order. Under the newest rules, if ICU capacity in a region drops below 15%, all residents are requested to stay home as much as possible.

"Under the order, places of worship and political expression are allowed to have outdoor activities only in addition to 100% masking and physical distancing," noted the statement.