San Jose church found in contempt for violating orders

Hoping to deter a church from defying public health orders, a Santa Clara County judge found San Jose Calvary Chapel in contempt of court but suspended fines levied against two pastors, as long as they follow the rules and submit a safety protocol by Feb. 19.

San Jose Calvary Chapel has racked up more than $1 million in administrative fines for continuing to hold indoor worship services and refusing to require congregants to wear face masks and socially distance over the course of several months. Senior pastor Mike McClure who sits on the church's board of directors, and youth pastor Carson Atherley were facing fines of $37,000 and $25,000, respectively.

On Thursday, Judge Peter H. Kirwan agreed to suspend fines against both pastors as long as they took steps to abide by the county's rules. Kirwan reminded the pastors that other churches are using virtual platforms to conduct religious gatherings. The judge said he didn't take the penalties lightly, and that he understood the "difficulties when you pit science versus religion."

"I don't want in any way, to minimize the importance and value you provide to your congregants," Kirwan told McClure, who was given a few minutes at the end of arguments to make a statement.

McClure told the judge that he would risk his life to help others as called by Jesus. He said he has counseled people who have been mentally and emotionally damaged from pandemic-related lockdowns.

"I understand that you are a leader to them, you provide them something nobody else can provide, but I do think that compliance with the public health order isn't exclusive of your ability to do it," the judge said. "It makes it more inconvenient, and requires more adaptability and creativity to do it, but it doesn't take it away," Kirwan said.

There is substantial evidence showing McClure disregarded county public health and court orders, the judge said. A pastor who refuses to ask congregants to abide by the rules creates a culture and sends a message that not following guidelines is OK, the judge said.

"Listen, I consider myself a religious person. I regularly attend church, I hate not going," the judge told McClure. "But we have to honor the law and there are ways to do that. So you're telling me you're working with the county, but with all due respect, that's lip service."

The judge referenced the opinion written by 9th U.S. Court of Appeals Judge Kim McLane Wardlaw that affirmed the indoor worship ban. South Bay United Pentecostal Church v. Newsom, 20-56358 (9th Cir. Jan. 22, 2021)

"'And even if an individual congregant is willing to accept the risk of contracting the virus by partaking in such conduct, the risk is not an individual's risk to take,'" Kirwan read from Wardlaw's opinion.

"'The risk is also the lives of others with whom an asymptomatic person may come into close contact, to the healthcare workers who must care for the person one infects, and to California's overwhelmed healthcare system as a whole,'" Kirwan repeated.

South Bay Pentecostal has again asked the U.S. Supreme Court to overturn the 9th Circuit. A decision is expected within a few days.

Kirwan said that, for the moment, he is bound by the 9th Circuit ruling.

Santa Clara County DeputyCounsel Melissa R. Kinyalocts argued the church knew of the orders, understood them and yet continued to defy them in more than 10 instances over several months. Without penalties, the church will continue disobeying the rules, she argued.

"No court ever said churches or pastors are exempt from Covid-19 public health orders," Kinyalocts argued. She asked the judge to sanction the church and its pastors $120,000.

"This is the second time we had to seek contempt for violations," she said.

The county isn't trying to throw pastors in jail, shut the church down or prevent them from worshipping, she argued, contrary to the defendants' statements to their congregants.

Robert Tyler of Tyler & Bursch defended the church and its pastors. he pointed to studies that appear to show pandemic-related depression is leading to a rise in suicides. The church contributes to community wellness, he said. Furthermore, the U.S. Supreme Court already found capacity limits on worship gatherings are unconstitutional, Bursch argued. The pastors aren't here to fight and don't want to violate the rules, don't want to upset the judge, but they want to freely exercise their religious beliefs and meet their congregants' needs, Bursch said.

"The reality of it is, when you come together for church, they come together and come to worship God," Bursch said.