Churches file more motions to further limit governor’s restrictions

As the U.S. Supreme Court continues to strike down parts of California's coronavirus health orders, churches are looking to further loosen restrictions imposed by the state.

A Lodi church moved Tuesday to overturn capacity limitations and a ban on singing and chanting, following the lead of two Southern California churches that obtained injunctions from the high court blocking the state from enforcing a ban on indoor services. Other churches in unrelated cases are considering the same.

"At a minimum, churches should be treated as essential," said Harmeet Dhillon, founder of the Center for American Liberty, representing Shield of Faith Family Church in San Bernardino County.

The Dhillon Law partner declined to comment on the relief she will be seeking in a renewed motion for a preliminary injunction. She secured from the U.S. Supreme Court on Monday an order knocking down California's ban on indoor services while the case is being litigated. Gish v. Newsom, 20-cv-00755 (C.D. Cal., filed April 13, 2020).

Gov. Gavin Newsom has issued revised guidance lifting the prohibition on indoor religious services in areas with widespread or substantial spread of the coronavirus to allow for attendance of up to 25% of a building's capacity. The maximum is 50% in areas with moderate or minimum spread.

Attorneys for the churches say it's not enough. They are now targeting the singing ban and capacity restrictions.

Cross Culture Christian Center attorney Dean R. Broyles anticipates judges are ready to cooperate with them on the issues now that there's firm guidance from the high court. Cross Culture Christian Center v. Newsom, 20-cv-00832 (E.D. Cal., filed April 22, 2020).

"Our proposed order is that our clients be allowed to meet not at 25% but 50%," the president of the National Center for Law & Policy said. "In Tier 4, we're asking for 75%."

The judge overseeing his case directed state and county defendants to inform the court on whether they intend to stipulate to the terms. Broyles said U.S. District Judge John A. Mendez is "tilting his hand that we will win."

"That's a huge shot across the bow," he said. "He's asking, 'Why shouldn't I short-circuit this process and give [the churches] what they're asking for?'"

Defense attorney Deborah Fox of Meyers Nave, representing San Joaquin County, cautioned not to read too much into the order.

"My view is that the court must not realize that plaintiffs are asking for relief that goes far beyond the SCOTUS ruling in that they want to go to 50% capacity and allow singing/chanting," she said in an emailed statement.

Whether the state's capacity limitations meet the heightened standard to uphold restrictions on constitutionally protected activities set by the Supreme Court in November when it struck down New York's limits on religious services remains to be seen. Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020).

Broyles noted that essential businesses such as transportation facilities, chemical manufacturing plants and campgrounds are permitted to allow in as many people as they wish. He argued it does not matter that some entities are treated equally or worse than religious groups since the state "must justify why houses of worship are excluded from that favored class."

"The Supreme Court never explained why they allowed 25% versus a higher number," he said. "At 50%, people can safely be indoors and social distance and follow the guidelines."

Dhillon lamented the lack of scientific evidence supporting the state's capacity restrictions. "There's a divorce from the policy and science in this state," she said.

Cross Culture Christian Center argued that the Centers for Disease Control and World Health Organization have found that precautionary measures are sufficient to mitigate virus spread.

Broyles also represents Calvary Chapel of Ukiah in a lawsuit against Newsom and the counties of Mendocino and Butte challenging the state's health orders. Churches in that case noted on Tuesday the Supreme Court's rulings blocking California from enforcing its ban on indoor services in support of their motion for a preliminary injunction, which also seeks to overturn the singing ban and capacity restrictions. Calvary Chapel of Ukiah v. Newsom, 20-cv-01431 (E.D. Cal., filed July 15, 2020).

While upholding a ban on indoor services in the hardest hit counties, the 9th U.S. Circuit Court of Appeals has ruled that a fixed attendance cap for places of worship in areas under less restrictive tiers is unconstitutional and not necessary to spread curb of the virus. The order allowed churches to operate indoors at certain percentages of their facilities' maximum capacity. South Bay United Pentecostal Church v. Newsom, 20-cv-00865 (S.D. Cal., filed May 8, 2020); Harvest Rock Church, Inc. v. Newsom, 20-cv-06414 (C.D. Cal., filed July 17, 2020).