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.