Even as California ever slowly emerges from the lockdowns prompted by COVID-19, as workplaces, manufacturing plants, and restaurants begin re-opening, a federal court has upheld a ban on in-person church gatherings put in place by Governor Gavin Newsom.
The decision will likely propel even more churches to participate in a plan to re-open on May 31, The Day of Pentecost, in defiance of the governor’s order.
A three-judge panel on the 9th Circuit Court of Appeals upheld Newsom’s March lockdown order, basically saying they couldn’t trust Christians to follow the rules and gather without getting someone sick, therefore allowing them to open would be tantamount to allowing churches to enter into a “suicide pact.”
We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
One Rule for Workers a Different One for Worshipers
Two judges said that the church appealing the order, South Bay United Pentecostal Church in Chula Vista, wasn’t likely to succeed on appeal and further argued that the “constitutional standards that would normally govern our review of a Free Exercise claim should not be applied” because of the coronavirus pandemic.
Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. […]
As a threshold matter, the State contends that, in light of the ongoing pandemic, the constitutional standards that would normally govern our review of a Free Exercise claim should not be applied. “Although the Constitution is not suspended during a state of emergency,” the State tells us, “constitutional rights may be reasonably restricted ‘as the safety of the general public may demand’”
But a Trump appointee, Judge Daniel Collins, dissented, saying that the governor’s lockdown order treated the same people in two different ways, when they worked and when they worshiped.
…the State’s position on this score illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace: the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”The injury here is particularly poignant, given that Pentecost—which the eponymously named Church greatly desires to celebrate—falls on May 31.
He said in his dissent that the state has an “undeniable” interest in public health, but that it “could be achieved by narrower [regulations] that burdened religion to a far lesser degree.”
The Chula Vista church, which is located in South San Diego County, has offered a plan for social distancing and keeping people safe while they worship. The churchgoers will wear masks, sit six feet apart, and refrain from singing, hugging, and holding hands, according to The San Francisco Chronicle.
‘Jail Break’ Worship
Though clergy are listed as essential in California, the First Amendment right to the free exercise of religion is not essential under the governor’s emergency orders.
Churches throughout the state are planning to meet in defiance of the order, in a socially-distanced way, on May 31st.
More than 1,200 churches plan to open on The Day of Pentecost in defiance of Newsom’s order, expressing the churches’ “essentiality” in a letter to him and California Attorney General Xavier Becerra.
The letter, written by attorneys for Liberty Counsel, The National Center for Law and Policy, Freedom of Conscience Defense Fund, Advocates for Faith & Freedom, and First Liberty, said it represented “hundreds of members of clergy and thousands of churches and ministries in California.”
Some of the pastors and rabbis signing the letter are household names in religious circles. There’s Calvary Chapel of Chino Hills’ Jack Hibbs, Ron Hill of Love and Unity Christian Fellowship of Compton, Rabbi Michael Barclay of Temple Nee Simcha in Westlake Village, Jim Franklin of Cornerstone Church in Fresno, and Water of Life Community Church in Fontana, among others who are cited in the letter.
The religious leaders thanked the governor for leadership but believe the cure is worse than the disease.
The clergy of this state are convinced that they must reopen their ministries to fully serve the needs of their communities. The spiritual services of ministries are absolutely essential to the health and welfare of the people of California. For example, a study published on May 6, 2020, in JAMA Psychiatry found “that religious service attendance is associated with a lower risk of death from despair among registered nurses and health care professionals. These results may be important in understanding trends in deaths from despair in the general population.”  The addiction and counseling services conducted in churches need to resume.
In sum, a great crisis has arisen from the secondary effects of the COVID-19 shutdown. The societal effects are not temporary and will last a lifetime in many individuals. In times of crisis, the clergy have a calling and responsibility to lead and care for their congregants and community.
Trump Calls for Opening Churches
President Trump himself called for reopening churches this week, flanked by Dr. Deborah Birx of his Coronavirus Task Force.
Trump this week deemed houses of worship essential services and chastised governors who have declared abortion clinics and liquor stores as essential but have left out synagogues and mosques essential services. “It’s not right,” he said.
— BBC News (World) (@BBCWorld) May 22, 2020
With the CDC continually changes its case fatality rate numbers, it appears the death rate from coronavirus is much, much lower than experts first believed.
As Judge Collins noted in his dissent in the 9th Circuit Court of Appeals decision, “the State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” He argued that the closing of religious services happened simply because they’re religious services.
Time to open them up.