Temporary order defies L.A. County COVID-19 orders; full hearing on September 4; only applies to that church, for now
On Thursday, August 13, Thomas More Society Special Counsel Jenna Ellis and attorney Charles LiMandri filed suit in the Superior Court of the State of California County of Los Angeles on behalf of internationally known author and Pastor John MacArthur, and Grace Community Church against Governor Gavin Newsom, Attorney General Xavier Becerra, Los Angeles Mayor Eric Garcetti, and other California and Los Angeles County public health officials. (See complaint)
On Friday, the California Court vindicated Pastor MacArthur and the church’s stance that church is essential by recognizing the constitutionally protected right of churches to remain open and hold indoor services in their sanctuary.
Hours after Grace Community Church filed suit to invalidate Los Angeles County’s unconstitutional restrictions on churches, the County filed for a temporary restraining order to force the church to stop holding indoor services and comply with every unreasonable and over-broad demand. At hearing today (Friday, August 14, 2020) in Los Angeles Superior Court, Judge Chalfant denied almost all of the County’s requests, agreeing with Pastor MacArthur and the Church that it is the County’s burden to show why it should be permitted to infringe on the constitutionally protected rights of churches to freely exercise religion. The judge did also express concern for some safety protocols.
To address those concerns and after explaining that the County was being unreasonable in its demands, counsel for Grace Community Church offered to comply with mask wearing and social distancing indoors until the matter could be fully heard, rather than the County simply rushing to shut down the Church. The judge agreed this was reasonable, set the full hearing for September 4, 2020, and ordered the Church to have congregants wear masks and social distance between family groups indoors.
Pastor John MacArthur said of the ruling, “I am very grateful the Court has allowed us to meet inside and we are happy for a few weeks to comply and respect what the judge has asked of us because he is allowing us to meet. This vindicates our desire to stay open and serve our people. This also gives us an opportunity to show that we are not trying to be rebellious or unreasonable, but that we will stand firm to protect our church against unreasonable, unconstitutional restrictions.”
Attorney Ellis said, “This is a huge vindication for Pastor John and the Board of Elders at Grace Community Church, who have simply asked for their right to worship the Lord together in church to be acknowledged and protected. When I spoke with Pastor John after the hearing, he expressed sincere gratitude to the California Court and Judge Chalfant and said his congregation will be happy to comply with the judge’s temporary order. This is why John MacArthur is so deeply loved and respected by his congregation and all over the world. He is a gracious and firm leader, and his biblical stand for church being essential has now been rightly validated. We look forward to continuing to advocate on his behalf in asking the Court to protect the fundamental rights of churches.”
Legal counsel LiMandri said, “This result is indeed a great victory for all citizens’ constitutional right to freedom of religion. Pastor MacArthur’s love of God and country motivated him and all the GCC church elders to resist the unjust government shut-down orders targeting people of faith. Their devotion and patriotism has brought about a result that respects the legitimate interests of both the church and state. This result makes it possible for the thousands of congregants of GCC to continue to gather together in their church to worship, while at the same time honoring the court’s requirement that reasonable and temporary safety measures be observed. This court ruling should stay in effect at least until there can be a full court hearing in this case on September 4, 2020. Please continue to pray that the courts allow this enlightened judge’s decision to stand so that all Californians can soon resume the worship of God in their respective churches.”
“We are simply continuing to do today what we have done for the past 63 years, that Grace Community Church has been open to welcome the Los Angeles community and serve their spiritual needs,” the pastor said in a statement. “We will remain open and teach the Gospel of Jesus Christ to all who decide they want to come worship with us.”
The suit seeks to prohibit California from enforcing its unconstitutional and onerous coronavirus pandemic regulations against Grace Community Church and seeks a judgment that the health orders violate the California Constitution.
“Having irreparably damaged the confidence of Americans—and Californians especially—who now realize that the pandemic restrictions are neither necessary nor good, on Sunday, July 26, 2020, Grace Community Church decided to resume worship services—joining millions of Americans in deciding that enough is enough. With deaths from the ‘COVID-19 suicide pandemic’ exceeding those from the actual coronavirus pandemic, Grace Community Church decided that it would no longer sit by and watch its congregants and their children suffer from an absence of religious worship and instruction. Perhaps unsurprisingly—perhaps not—this led the County of Los Angeles to submit a demand letter to Grace Community Church, ordering it to comply with the restrictions that Los Angeles County deems unnecessary to enforce against so many others. Grace Community Church does not intend to comply.”
According to attorneys for the church, it is time for California to recognize that Christians are not second-class citizens, and the court must step in to do its job in applying the protections that the U.S. and California State constitutions provide to every individual equally and to churches in particular.
Pastor MacArthur opened the Sunday morning service on August 9, welcoming worshippers to “the Grace Community Church peaceful protest.” He was met with a standing ovation and extended applause from the congregation. Pastor MacArthur said of the lawsuit, “We are simply continuing to do today what we have done for the past 63 years, that Grace Community Church has been open to welcome the Los Angeles community and serve their spiritual needs. We will remain open and teach the Gospel of Jesus Christ to all who decide they want to come worship with us.”
Ellis said, “We hoped that Los Angeles County would see its error on its own, but after attempted negotiations with their counsel, California is still intent on targeting churches—specifically, Grace Community Church. Pastor MacArthur and the Board of Elders will stand firm in their leadership and resolve that church is essential, and California has no legitimate power to enforce such onerous and unconstitutional restrictions against the fundamentally protected right to freely participate in church. After Grace Community Church voluntarily complied with state orders for nearly six months, California’s edicts demanding an indefinite shut down have gone now far past rational or reasonable and are firmly in the territory of tyranny and discrimination. This isn’t about health. It’s about blatantly targeting churches.”
LiMandri stated, “It is unconstitutional for Governor Newsom and the State of California to discriminate against churches by treating them less favorably than other organizations and activities that are not protected by the First Amendment. Pastor MacArthur and his church, as well as all churches, are entitled to practice their religion without government interference. This is especially the case when the government has given free rein to protestors, and is not similarly restricting marijuana dispensaries, large retail outlets and factories, or abortion providers. The government orders are also unconstitutional because there is no compelling need for the onerous restrictions on the churches at this time. The hospitals are not overwhelmed and the percentage death rate from COVID-19 is now extremely small. It is time for Governor Newsom and Mayor Garcetti to recognize what President Trump has already proclaimed: churches are providing an ‘essential’ service to the people. Therefore, they must be allowed to serve the people in the manner in which God has called them.”
Read the Thomas More Society’s Complaint filed with the Superior Court for the State of California County of Los Angeles – in Grace Community Church and Pastor John MacArthur v. Gavin Newsome et al., on August 12, 2020, here.
Read the Demand Letter sent to Pastor John MacArthur by attorney Jason Tokoro, representing the County of Los Angeles in California, on July 29, 2020, here.
More than 8% of Contra Costa COVID-19 tests now positive
From Contra Costa County Health Services
Due to a sharp rise in the percentage of COVID-19 tests returning positive in the community, Contra Costa County Health Officer, Dr. Chris Farnitano today, Saturday, July 11, 2020 amended its social distancing health order to temporarily tighten face-covering requirements and prohibit indoor gatherings where there is elevated risk of spreading the virus. (See details, here and CCC Full Health Order 07-11-20)
Local data show that 8.04 percent of COVID-19 tests administered over the past seven days were positive, a sign that the virus is spreading rapidly in the county and that the community must take immediate steps to prevent our healthcare system from becoming overwhelmed.
Contra Costa is especially concerned about the risk of COVID-19 transmission in indoor gatherings, and in gatherings that involve removing face coverings for eating and drinking.
When Contra Costa received authorization (variance) from the California Department of Public Health in June to allow the reopening of some businesses and activities, the plan we submitted indicated that an 8% testing positivity rate would trigger the review and reconsideration of reopening activities in the county.
Other indicators show COVID-19 is on the rise in Contra Costa communities. The seven-day average number of new cases identified in the county rose from 38 on June 8 to 146 on July 8, while the seven-day average number of hospitalized COVID-19 patients rose from 17 to 54 during the same period. As of Saturday morning at 11:30 a.m. there are no 77 COVID-19 patients in Contra Costa County hospitals. (See more statistics on the CCHealth Coronavirus Dashboard)
The 209 adult intensive care unit beds in Contra Costa County hospitals are on average a little more than half-full on a given day, including COVID-19 patients and patients with other health concerns.
Given the rapid spread of local cases, Contra Costa Health Services (CCHS) is concerned that the number of patients needing intensive care could quickly exceed capacity.
According to the new health order, indoor worship services are temporarily prohibited, effective on Sunday at 11:59 p.m. Services held earlier on Sunday, July 12, are not subject to this change.
Certain categories of outdoor gatherings, including worship services and social protests, are permitted at any size in Contra Costa so long as state health guidelines are followed, including physical distancing and appropriate use of face coverings. (State guidelines for outdoor worship services and protests)
In outdoor dining settings, staff and customers must now observe face covering requirements at all times, except when putting food or drink in the mouth. The new order also increases guidance for businesses that serve alcohol with meals to better align with state guidelines.
Members of extended family “social bubbles” must now always use face coverings when together, except when putting food or drink in the mouth.
Contra Costa County hopes to ease these enhanced, extraordinary safety measures as soon as possible, and will review available health system data daily to determine when it is safe to do so.
CCHS urges everyone to continue taking simple steps to protect themselves from COVID-19: Follow the social distancing order, and wear a face covering when you go out or are near other people. Wash your hands thoroughly and frequently, and always stay home from work or school if you are not feeling well.
In response, the following questions were sent to Contra Costa County Health Officer Dr. Chris Farnitano, Board of Supervisors Chair Candace Andersen and the county health communications staff:
Why are indoor church services being shut down, again?
What statistics can you show that they were the direct cause of the spike in the recent COVID-19 cases in our county? Especially since those who attend worship services have been required to social distance and wear masks while attending an indoor service.
Might it be from other activities such as swimming or a variety of other activities?
Is everyone who gets tested given a questionnaire in which they report what their activities have been for the previous 14 days? If so, can you please provide a copy of the questionnaire?
If not, how do you know and are you merely making assumptions and an arbitrary decision to once again unfairly target people of faith who have the most First Amendment protections while exercising their freedom of religion than any other activity in our nation, since they also have the freedom of peaceful assembly?
Finally, how many of the positive cases in our county are from people outside of the county being brought into our county from elsewhere?
Please check back later for answers to these questions and more.
Visit cchealth.org/coronavirus to read the new health order, and for local information about Contra Costa’s response to the COVID-19 pandemic.
Allen Payton contributed to this report.
“Make a joyful noise unto the LORD, all the earth: make a loud noise, and rejoice, and sing praise.” Psalm 94:8
“Peter and the other apostles answered and said: ‘We ought to obey God rather than men.’” Acts 5:29
By Allen Payton
As part of his new statewide health orders issued on Wednesday, July 1, California Governor Gavin Newsom included a new requirement that “*Places of worship must therefore discontinue singing and chanting activities” during worship services. (Note: The asterisk does not refer to anything else in the document) See https://files.covid19.ca.gov/pdf/guidance-places-of-worship.pdf
Under the section entitled Considerations for Places of Worship it reads, “Discontinue singing (in rehearsals, services, etc.), chanting, and other practices and performances where there is increased likelihood for transmission from contaminated exhaled droplets.
The state’s document, entitled COVID-19 INDUSTRY GUIDANCE: Places of Worship and Providers of Religious Services and Cultural Ceremonies refers to the practice of one’s faith as “personal” as if it’s not supposed to be done in public, like other activities such as protesting.
“Even with adherence to physical distancing, convening in a congregational setting of multiple different households to practice a personal faith carries a relatively higher risk for widespread transmission of the COVID-19 virus, and may result in increased rates of infection, hospitalization, and death, especially among more vulnerable populations. In particular, activities such as singing and chanting negate the risk reduction achieved through six feet of physical distancing,” the document reads.
However, in response after contacting county officials, leaders of Golden Hills Community Church, one of the larger churches in Eastern Contra Costa County with campuses in Brentwood and Antioch which will hold their first in-person service in 17 weeks on Sunday, July 5, shared with their members that singing while wearing masks will be allowed.
In an email on Friday, June 3 Senior Pastor Phil Ward wrote, “This week both the state and the county announced a ban on ‘singing and chanting’ in houses of worship. Since we now have the ability to gather for in-person worship, and since singing is an essential aspect of Christian worship (Eph. 5:19; Col. 3:16), we found this prohibition unreasonable because it dictates what is permissible in worship. As a result, we reached out to the governing authorities to express our concern. In response, we were told that singing is permitted so long as masks are being worn—something we already planned to do.”
Although the sanctuary at their Brentwood campus has a capacity of 1,700 people and could easily accommodate 350 people while social distancing, the church will be following the limits of only 100 people per service. They will also utilize their former sanctuary, now used as a multipurpose room, which can also meet the state and county’s limitations of 100 people maximum or 25% of room capacity whichever is less. Finally, the church will be offering four services this Sunday and adding a fifth service, beginning next Saturday night, July 11.
Debate Over Following All Government Laws & Orders
International evangelist and San Francisco native Mario Murillo wrote this week in response to the governor’s order that Christians should not follow such laws or orders because they are evil and go against what God teaches His followers.
“I can’t think of a worse idea than to stop praise and worship because Gavin Newsom told you to,” he wrote. “It’s time to wake up to the sad truth that California has declared war on the church. Doesn’t the Bible tell us to obey them no matter what? Absolutely not. And it is shocking how many believers do not know their Bible or have been given false teaching. There is no verse in the Bible that tells you to obey evil government or laws.”
Many believers often quote a section in the book of Romans, chapter 13, verses 1-7 to support following the government’s orders: “Let every soul be subject to the governing authorities. For there is no authority except from God, and the authorities that exist are appointed by God. Therefore, whoever resists the authority resists the ordinance of God, and those who resist will bring judgment on themselves. For rulers are not a terror to good works, but to evil. Do you want to be unafraid of the authority? Do what is good, and you will have praise from the same. For he is God’s minister to you for good. But if you do evil, be afraid; for he does not bear the sword in vain; for he is God’s minister, an avenger to execute wrath on him who practices evil. Therefore, you must be subject, not only because of wrath but also for the sake of conscience. For because of this you also pay taxes, for they are God’s ministers attending continually to this very thing. Render therefore to all their due: taxes to whom taxes are due, customs to whom customs, fear to whom fear, honor to whom honor.”
However, Murillo quotes other Bible verses that offer the opposite perspective, that believers are only to follow rulers who aren’t evil and laws that aren’t evil.
“It seems to say that we are to honor government in every form, right? Wrong,” he wrote. “Lost in all the quoting of this verse on submission to government is the most important part: The description of the ruling authority.”
Murillo shares that description writing, “they are not a terror to good works” and “they praise good works.”
He also shared what Jesus said of the Pharisees in Matthew 23:3, “Therefore whatever they tell you to observe, that observe and do, but do not do according to their works; for they say, but do not do.”
“Do what they say, but don’t partake of their hypocrisy,” Murillo explains. “Watch them for that moment when they cross the line and come between you and your God. Just as our conscience should drive us to obey the law, we should also know when our conscience tells us not to obey an evil law.”
“Here’s when Peter reached that tipping point, speaking to those very same Pharisees,” he continues, quoting Acts 4:18-20, “So they called them and commanded them not to speak at all nor teach in the name of Jesus. But Peter and John answered and said to them, ‘Whether it is right in the sight of God to listen to you more than to God, you judge. For we cannot but speak the things which we have seen and heard.’”
Murillo then quoted Acts 5:29 writing, “Peter and the other apostles answered and said: ‘We ought to obey God rather than men.’”
Newsom’s Order is an Evil Law That Must Not Be Followed
“God not only does not endorse evil government: He will have no part in it,” Murillo continues. He then quotes Psalm 94:20 writing, “Can a corrupt throne be allied with you—a throne that brings on misery by its decrees? The wicked band together against the righteous and condemn the innocent to death.”
“There is your answer. A corrupt throne (government) cannot be allied with God,” he wrote. “In fact, evil laws are the worst form of sin. They provide legitimacy to evil.”
Murillo concludes by quoting German pastor, theologian, anti-Nazi dissident and Christian martyr, Dietrich Bonhoeffer, who said, “Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.”
Wearing a Mask While Singing or Chanting Works
So, ordering followers, of at least Christianity and Judaism, to discontinue singing violates what God wants practiced during worship. As it is written in Psalms 98:4, “Make a joyful noise unto the LORD, all the earth: make a loud noise, and rejoice, and sing praise.” Therefore Governor Newsom’s order is an evil law that must not be followed. But, for safety’s sake the spirit of the order can be met by wearing masks while singing or chanting in church.
July 1st – Personal services not involving the face (massage, nail salons, tattoo, body waxing, etc.) • Indoor dining • Bars (with or without food) • Indoor religious services • Gyms, fitness centers & personal training • Limited indoor leisure (arcades, billiards, bowling alleys, etc.) • Indoor museums • Hotels (for tourism & individual travel).
July 15th – Personal services involving the face (skin care, permanent makeup, facial waxing, etc.) • Movie theaters.
However, although “These openings are a direct response to your patience and observation of the health order” as is written on the new Road Ahead, and they “hope to continue opening up the county” the county health officer “may need to reconsider openings based on the course of the pandemic.”
Download a copy of the latest Road Ahead, here.
Includes hair salons, barber shops, and 100 people at indoor church services and funerals
Contra Costa Health Services is taking another step toward alignment with the State of California’s guidance on opening businesses and activities at a pace that protects public health and safety. At the same time, CCHS continues to recommend that residents stay home as much as possible and take steps to protect themselves and each other when leaving the house.
The Contra Costa Health Officer has amended the county’s health order to allow hair salons and barbers to reopen for business beginning Wednesday morning. They must follow state health guidance to reduce the risk of spreading COVID-19.
The new order also increases the number of swimmers who may share a pool to 1 person per 75 square feet, as allowed by the state.
The social distancing order also allows as many as 100 people to attend a funeral or other religious service at an indoor place of worship, in line with the state’s health guidance.
Some of Contra Costa’s key indicators for measuring how well the community is slowing the spread of COVID-19 did increase in the first half of June, an expected outcome as more people come into more contact with each other as the county gradually reopens businesses and activities.
CCHS is carefully monitoring that data and could adjust the reopening timeline to protect the public health.
CCHS encourages everyone to take simple steps to protect themselves from COVID-19: Follow the shelter-in-place order, and wear a face covering when you go out or are near other people. Wash your hands thoroughly and frequently, and always stay home from work or school if you are not feeling well.
Visit www.coronavirus.cchealth.org/health-orders to read the new health order and its appendices, and for local information about Contra Costa’s response to the COVID-19 pandemic.
Claims “Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection”
“…the County’s Order violates federal and state law while unashamedly discriminating against houses of worship.”
On Wednesday, June 10, 2020 a formal legal letter was by attorney Harmeet Dhillon, founder of the Center for American Liberty, to members of the Contra Costa County Board of Supervisors, to ensure county health services staff follows through with their commitment to change the requirement to a recommendation that places of worship gather names and contact information of those who attend services and provide it to the county upon request. (See related articles, here, here and here). In addition, the letter points out that the county’s health order limiting indoor services to 12 people also violates the Constitution. – 2020.06.10_HDhillon CAL Letter to Contra Costa County
June 10, 2020
Contra Costa County Board of Supervisors
651 Pine Street
Martinez, CA 94553
Re: Unconstitutional Contra Costa Health Services Order No. HO-COVID19-17, Specifically Regarding “Additional Businesses” (section 3 of Appendix C-1, Updated June 5, 2020)
Dear Board of Supervisors:
We write today, on behalf of clients in Contra Costa County, to demand the immediate rescission of Contra Costa Health Services Order NO. HO-COVID19-17 (the “Order”). The Order is concerning for two reasons: (1) Its requirement that houses of worship—and only houses of worship—keep and upon request disclose “a record of attendance” to Contra Costa Health Services violates both state and federally protected rights of associational privacy; (2) Restricting religious gatherings to no more than 12 participants violates First and Fourteenth Amendment protection. And while we appreciate the County’s recent announcement that it plans to revise its requirement that houses of worship keep and disclose attendance lists, until such plans manifest, we reiterate our objection over its current text.
- Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates First Amendment Rights
The First Amendment to the U.S. Constitution prohibits government actors from enforcing any “law respecting an establishment of religion, or prohibiting the free exercise thereof.” U. S. Const. amend. I; see also Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (applying the First Amendment to the States through the Fourteenth Amendment). Under strict scrutiny, the government cannot burden religious activity unless it first establishes (1) a compelling interest for imposing such burdens, and (2) that the burdens are the “least restrictive means” necessary to further that compelling interest. Federal courts routinely enjoin the enforcement of laws and policies under this standard. See e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520, 524 (1993).
The County’s Order severely burdens religious expression. The Order’s restriction on indoor religious services—limiting the number of participants to 12 persons or 25% of the building’s capacity, whichever is less—does not survive exacting scrutiny in that it is not the least restrictive means to accomplish the County’s interest in public health. Simply put, there are better ways for the County to accomplish its interest in public health that do not burden religious expression as much. For example, restricting participation on a percentage basis only—with respect to facility seating capacity—is a better solution. Twelve people in a sanctuary that holds one thousand looks very different from twelve people in a sanctuary that holds one hundred people.
In other words, percentage-based restrictions accommodate larger houses of worship while satisfying the County’s interest in public health and social distancing.
- Restricting Religious Gatherings to 12 Participants Unconstitutionally Violates Right to Equal Protection
The Fourteenth Amendment of the Constitution provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1.
Equal protection requires the state to govern impartially—not draw arbitrary distinctions between
individuals based solely on differences that are irrelevant to a legitimate governmental objection. City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).
Here, the County’s 12-person limit on religious gatherings is nothing if not arbitrary. This is more restrictive than statewide health guidelines, according to the California Department of Health for places of worship, which currently limits attendance to 25% of building capacity or a maximum of 100 attendees, whichever is less; it is unclear where Contra Costa County’s “12 person” idea originates.
Additionally, no other establishment in Contra Costa County is subject to these more restrictive and draconian requirements. Costco, laundromats, marijuana dispensaries, and countless other purely secular entities are not burdened by this arbitrary, 12-person limitation.
On April 14, 2020, the United States Attorney General, William Barr, issued a statement addressing the disparate treatment being afforded to houses of worship.
As we explain in the Statement of Interest, where a state has not acted evenhandedly, it must have a compelling reason to impose restrictions on places of worship and must ensure that those restrictions are narrowly tailored to advance its compelling interest. While we believe that during this period there is a sufficient basis for the social distancing rules that have been put in place, the scope and justification of restrictions beyond that will have to be assessed based on the circumstances as they evolve.
Religion and religious worship continue to be central to the lives of millions of Americans. This is true more so than ever during this difficult time. The pandemic has changed the ways Americans live their lives. Religious communities have rallied to the critical need to protect the community from the spread of this disease by making services available online and in ways that otherwise comply with social distancing guidelines.
The County may not treat houses of worship as second class entities; at a minimum, it must treat them equitably with respect to secular counterpart. Contra Costa Health Services Order NO. HO-COVID19-17 does the opposite—it targets houses of worship with more burdensome restrictions.
III. The Order Infringes Upon Constitutionally Protected Right to Privacy Under State Law
The right to privacy is an inalienable right under California law.3 This privacy interest irrefutably extends to participation in religious gatherings.
In Church of Hakeem, Inc. v. Superior Court, Alameda County, 110 Cal. App. 3d 384 (Ct. App. 1980), the court expressly declined to mandate disclosure of member names and addresses, even after allegations of criminal activity or wrongdoing by the church. In City of Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 (Ct. App. 1970), the court affirmed a list of freedoms afforded constitutional protections, such as the freedom of association and privacy in one’s associations, encompassing privacy of the membership lists of a constitutionally valid organization. In Pacific Union Club v. Superior Court, 232 Cal. App 3d 60 (Ct. App. 1991), the court provided a robust analysis of associational rights and ultimately upheld a private club’s right not to disclose member lists.
Applied here, Contra Costa County’s Order requiring houses of worship to create and preserve the names and contact information of those in attendance at a worship service or ceremony, and then disclose such information “immediately upon request” unconstitutionally violates privacy rights while chilling religious expression. Whether gathering for political, social, or religious reasons, the right of association is sacrosanct. Unfortunately, the County’s Order deprives Californians their right to pray, worship, repent, and seek spiritual guidance privately. Rather, the Order subjects their most intimate religious activities to potential publication.
3 “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” Cal. Const. Art. 1 § 1
- The Order Violates Right to Privacy Protected by Federal Law
The “Court has recognized the vital relationship between freedom to associate and privacy in one’s associations.” Nat’l Ass’n for Advancement of Colored People v. State of Ala. Ex rel. Patterson, 357 U.S. 449, 462 (1958). Citing American Communications Ass’n, C.I.O., v Douds, 339 U.S. 382, 402 (1950), the Court explained,
‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particular where a group espouses dissident beliefs.
Here, Contra Costa County’s Order tramples Californians’ right to privacy and in doing so, violates the Due Process Clause. Similar to the state of Alabama in NAACP v. Alabama, Contra County is requiring houses of worship to disclose the identities of congregants gathering to worship. And similar to the state of Alabama, this mandatory disclosure of religious expression “curtails the freedom to associate,” “denying “the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment,” and is “subject to the closest scrutiny.” Id. at 460-61.
- Attendance Recordation Requirement Violates Equal Protection Protected by Federal Law.
By the Order’s express terms, the Order discriminates against places of worship by requiring places of worship to create and maintain attendee lists, yet the Order places no other such burdens on any other non-religious establishment whatsoever. As the United States Supreme Court has noted, “a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). Further, “A law is not generally applicable if its prohibitions substantially under include non-religiously motivated conduct that might endanger the same governmental interest that the law is designed to protect.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th Cir. 2015) (citing Lukumi, 508 U.S. at 542–46). So, “In other words, if a law pursues the government’s interest ‘only against conduct motivated by religious belief,’ but fails to include in its prohibitions substantial, comparable secular conduct that would similarly threaten the government’s interest, then the law is not generally applicable.” Id.
The County fails this standard. Houses of worship are uniquely burdened by this public disclosure requirement. And again, no other entity appears to be subjected to this standard.
In conclusion, we believe the County’s Order violates federal and state law while unashamedly discriminating against houses of worship. For these reasons, the Center for American Liberty respectfully requests that Contra Costa Health Services Order NO. HO-COVID19-17, requiring houses of worship to record and disclosure attendance at religious services, be either rescinded or amended to cure its constitutional defects. We look forward to hearing your response.
Harmeet K. Dhillon
cc: John Gioia, Candace Anderson, Diane Burgis, Karen Mitchoff, Federal D. Glover
By Allen Payton
Contra Costa County health officials are backing down on their requirement in the latest order issued June 5 that places of worship gather names and information of all attendees, keep it for 14 days and provide it to the county immediately upon request. According to a statement issued Tuesday morning, “health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement.”
The action comes following a series of email exchanges between the Herald and county supervisors and staff over the past several days about the requirement, an article on the matter and public outrage on social media challenging the constitutionality of the requirement, the inconsistent and unfair application to only places of worship, and no other organization or business, including protesters or restaurants offering outdoor dining in which people sit for extended periods of time with their masks off in order to it.
A legal effort was in the works as of Monday, with several residents agreeing to sign on to a legal demand letter to be sent to the county. But that now appears to be unnecessary.
Following is the Statement Regarding Requirements for Religious Gatherings
“In the health order issued June 5 by Contra Costa Health Services, religious organizations were required to maintain a list of attendees at religious services and cultural ceremonies in the event of an outbreak of COVID-19. The intention was to facilitate quick, complete contact tracing if a participant at the event tests positive.
Health officers will be working with county attorneys to revise the order to reflect this as a recommendation but not a requirement. If a participant tests positive for COVID-19, the host will be asked to assist CCHS with contact tracing associated with the gathering.
To mitigate the risk of transmission to the greatest extent possible, CCHS encourages participants to wear face coverings at all times, maintain social distance when possible, practice good hand hygiene, and stay home if sick.”
According to Kim McCarl, Assistant to the Director of Contra Costa Health Services for Communications, “As we revise the language, the recommendation will apply to any allowed gatherings.”
According to Kim McCarl, the county health services communications assistant, the “guidelines will be the same as the state’s”. No word on if the requirement to create lists of the names and contact information of all attendees to be given to the county upon demand will still be included. (See related article)
By Allen Payton
In his Friday, June 5, 2020 order, Contra Costa County Health Officer Dr. Chris Farnitano now allows religious services to hold outdoor worship services of up to 100 people and indoor worship services of up to 12 people. (See related article)
However, buried deep within the order, in Section 3, Subsection B3 of “Appendix C1 – Additional Businesses” the order requires “A record of attendance, including the names and contact information for each attendee at a service or ceremony, must be created and preserved by the Place of Worship for a minimum of 14 days, and provided to Contra Costa Health Services immediately upon request in the event that a COVID-19 case is linked to the event.”
An email was sent to all five members of the County Board of Supervisors and county health services communications staff, in an attempt to reach Dr. Farnitano, Saturday evening with the following questions.
- Are you also requiring protest organizers to provide a list of those who attend them?
- Or restaurants to provide you a list of diners who enjoy outdoor dining at their locations?
- How would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people?
- Don’t you think you’ve infringed on the First Amendment rights of people of faith in our county enough already?
- Don’t you think this goes way too far?
- Was the county counsel consulted before this was included in the order?
Four of the members of the board were also sent text messages asking them to check their emails for the message.
Supervisor John Gioia, who was an attorney before being elected to the board in 1998, responded first via text message with, “Yes. It’s to keep track of people who are in contact with someone who tests positive. For contact tracing. And have them isolate for 14 days if they test positive.”
When asked again if protesters are required to give their names and information and what about restaurants that serve outdoor diners, he simply responded, “It’s a fine balance. I understand the arguments on both sides.”
Board Chair Candace Andersen responded by email with, “Karen (Mitchoff) and I chair at COVID Ad Hoc Committee each Thursday at 1:30 pm (available to all via Zoom). This week we had Dr. Farnitano explain this provision at our meeting. It’s simply there so that if there is a COVID outbreak, a church could make the names of attendees available so that they could be traced/tracked and notified that they may have been exposed. The only time these names would be requested is if there was, in fact, someone who came down with COVID in the congregation.”
“In a workplace or at a school the Health Department would also request the names of everyone who was present and exposed to someone who tested positive for COVID. In those settings the names would already be available because of the nature of the business,” she continued. “I will ask our Health Team to put an FAQ up so that its purpose can be clarified.”
In response, another email was sent to Andersen, Mitchoff, and the county health services communications staff, asking for answers to the questions from the first email that were not answered by Andersen.
The requirement from the June 5th order was shared on social media and almost all the comments about it were negative such as, “Do businesses with thousands of people going in and out need to record all of this? I go to many businesses and my name is never recorded, unless it is a dentist or something,” and “That is so crazy…are we still in the USA? Or is this a bad dream?”
Another commenter asked, “How about the names of the thousands of…protestors before they go out and the looters too?” Another comment reads, “I’ve wondered how they are tracking all the people at Walmart, Target and Home Depot. They don’t take attendance there.”
“Ridiculous! Control! Why not other businesses? Only churches?” asked another commenter. “I won’t attend until that changes. My name isn’t going on any list,” wrote another.
One pastor wrote, “That’s too far” and another wrote, “I’m not doing that. They don’t do that with Walmart, Home Depot, etc.”
The Bill of Rights are limitations on the power of government. It can be argued that the requirement in the county’s health order violates both the First and Fourth Amendment rights religion, peaceful assembly and privacy, of both the worship service attendees and those of the places of worship.
The First Amendment mentions religion first in the list of rights, because that is the first reason our nation was founded, going back to the Pilgrims in 1620. It reads “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” That applies to any state law, county or city ordinance, regulation or order, as well.
The Fourth Amendment refers to what is described as the right to privacy. It reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So, a church or other place of worship could require the county to provide a warrant to obtain the information the order requires.
6/7/20 UPDATE: Chair Andersen Responds
In an email received by the Herald on Sunday afternoon, June 7, Board of Supervisors Chair Candace Andersen offered the following responses to some of the questions posed to her and the rest of the board members and Dr. Farnitano:
“How would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people? That’s why we have contract tracing in place. We would track/trace people at both venues to make sure others who were exposed are tested, thus preventing a serious outbreak.
Don’t you think you’ve infringed on the First Amendment rights of people of faith in our county enough already? In a worldwide pandemic of this scope we are continually balancing the health of the community versus any limitations we need to impose upon the public. I really miss going to church. For my entire life I have gone every single Sunday unless I was home sick. However, I can see how it is for the greater good to NOT have live church services where we could potentially be exposing each other to a horrible virus. And, I continue to worship at home with my family, with fellow church members via Zoom and YouTube, through reading scriptures, listening to uplifting music, and finding new ways to connect spiritually. Yes, it’s different than it was, but I also know it is only temporary. More importantly, “the State” is not telling me how or who I should be worshipping, only that it is unsafe to gather as a congregation right now. As you know, the State Supreme Court has agreed that in this emergency we’re in, this is an acceptable limitation.
Don’t you think this goes way too far? Was the county counsel consulted before this was included in the order? All Health Orders have County Counsel’s review before they are implemented. I would be concerned if churches were mandated to report attendance each week, but they’re not. No one is reviewing the attendance or calling out who is or is not there. Churches are just being asked to be in a position to identify who was present at a service so that if there is an outbreak, the affected people can be notified and tested.”
However, the recent ruling in the case before the Supreme Court had nothing to do with government requiring places of worship to collect the names and contact information of those who attend worship services and provide it upon request.
A more complete question was sent to her and Dr. Farnitano asking, “how would anyone know a COVID-19 case was linked to an outdoor worship service of up to 100 people or an indoor one of up to 12 people if that same attendee participated in a number of other activities, both indoor and outdoor, during the week?
Possible legal action can be expected against the county in the very near future.
Please check back later for any updates to this report.