Churches’ suit against governor’s orders cites century-old precedents

Pastors of three Southern California churches have sued to block Gov. Gavin Newsom's stay-at-home home order, arguing he has exceeded his authority despite legal precedents many experts say grant broad powers to shut down public gatherings of all kinds during an epidemic.

"There are some arguments around due process and equal protection. How the governor came up with the 'who is essential and who's not' is arbitrary," said Harmeet K. Dhillon of Dhillon Law Group Inc. in San Francisco. "The parts that relate to the two counties are focused on the religious discrimination issues."

Dhillon, who is the founder of and executive director of the Center for American Liberty, a California-based nonprofit group, makes claims under the First and 14th Amendments to the U.S. Constitution and the California Constitution in Gish v. Newsom, 5:20-cv-00755 (C.D. Cal., filed April 13, 2020).

She is seeking to block both the enforcement of Newsom's order against the three churches and the overall enforcement of the order.

The suit names Newsom and Attorney General Xavier Becerra, plus numerous local officials in Riverside and San Bernardino counties, where the churches are located. No officials responded to request for comment.

The notion of what is an essential business and who is an essential worker has been central to much of the litigation so far around the various closure and stay-at-home orders around the country. For instance, gun rights groups have sued or threatened legal action around closing gun stores, arguing these should be considered essential businesses.

"Fundamentally, something that has not been covered by the press is that Supreme Court precedent and California precedent both hold you can't quarantine people who aren't sick or aren't proven to be exposed," Dhillon said. "Effectively, California is quarantining everybody, and that's skipping over numerous steps constitutionally to deprive people of their property and their rights."

How far state and local governments can go in restricting normal activities has been a key point of contention, both in court and in political rhetoric between some Democratic governors and President Donald J. Trump's administration. Generally speaking, Democratic leaders have pushed for more aggressive orders aimed at creating social distancing while Republicans have often advocated for fewer restrictions.

UC Berkeley School of Law Dean Erwin Chemerinsky led a Zoom session on these questions Monday featuring more than 200 participants. He outlined an expansive set of government rights to shut down aspects of society in response to pandemics under Jacobson v. Massachusetts, 197 U.S. 11 (1905). This involved a state mandatory vaccination law to fight smallpox.

"Courts have consistently read Jacobson v. Massachusetts as giving to the government broad power to order vaccinations to stop the spread of communicable disease," Chemerinsky said.

John C. Eastman, a professor at the Dale E. Fowler School of Law at Chapman University, said Dhillon's suit is "a closer call than Dean Chemerinsky acknowledged."

"At the time of that 1905 decision, the Supreme Court had not yet applied the speech, assembly, and free exercise clauses of the First Amendment to the states," Eastman said in an email. "Instead, the only claim at issue in the case was whether the due process clause of the 14th Amendment protected the individual's 'liberty' not to be vaccinated against smallpox."

Dhillon's complaint did not mention that case; she offered her own set of aged precedents. This includes Jew Ho, 103 F. 10 (C.C. Cal. 1900), a famous case which found that city leaders in San Francisco could not single out residents of Chinatown in their efforts to fight an outbreak of bubonic plague.

The complaint also detailed an extensive list of alleged overreaches that have followed Newsom's March 4 emergency order and subsequent executive order that began the shutdown. It specifically cites a March 22 list of critical workers distributed by the California Public Health Officer, which included a mention of "faith-based services that are provided through streaming or other technology."

"Accordingly, this list prohibits all religious leaders from conducting in-person and out-of-home religious services, regardless of the measures taken to reduce or eliminate the risk of the virus spreading," the complaint continued. "California courts have held that public health officials' authority over the rights of personal liberty is limited. Before exercising their full powers to quarantine, there must be reasonable grounds to support the belief that the person so held is infected." Ex parte Martin, 83 Cal. App. 2d 164 (1948).

It goes on to challenge face-covering and stay-at-home orders issued by the two counties. One of the plaintiffs, Church Unlimited Pastor James Dean Moffatt of Indio, was fined $1,000 by Riverside County for holding a church service on Palm Sunday.