Pastors vow mass defiance of Newsom’s closure orders

More than 1,200 pastors will reopen church services on May 31 in defiance of what they say is an unconstitutional order by Gov. Gavin Newsom order suspending in-person worship services, according to a letter they sent to him Wednesday.

The letter praised "the significant efforts you have made to protect the health and safety of residents of California." But it also stated the governor has "overlooked the essential and critical nature of the services provided by clergy and religious assemblies throughout California."

The letter, prepared by Robert H. Tyler of Tyler & Bursch LLP, based in Anaheim, makes extensive legal arguments that the governor's prohibition on worship services is discriminatory on its face because many secular activities with large gatherings of people are allowed to operate.

This latest move appears to show opponents of Newsom's emergency orders are increasingly willing to buck court rulings, even as several attorneys have filed a new round of petitions appealing those lower court decisions to the 9th U.S. Circuit Court of Appeals.

The pastors' letter came just hours after two other challenges to Newsom's authority. One was a stern letter from U.S. Attorney General William Barr's office raising "several civil rights concerns with the treatment of places of worship." The other was an announcement by a pair of Republican Assemblymen that they would mount a legislative effort to end Newsom's orders.

"These pastors are willing to stand against the state and face fines or penalties in order to fulfill their calling and the essential needs of those around them," said Tyler, general counsel for the Murrieta-based Advocates for Faith and Freedom, in an emailed statement announcing the re-openings. "We believe religious organizations have a constitutional right to assemble for religious purposes just as the 6th Circuit Federal Court of Appeal recently ruled. If it is OK to stand in line at Costco, it should be OK to stand in prayer at church."

Tyler is also part of the legal team that filed an appeal on Tuesday in Cross Culture Christian Center v. Newsom, 2:20-cv-00832-JAM-CKD (E.D. Cal., filed April 27, 2020). On May 4, U.S. District Judge John A. Mendez rejected their motion for a preliminary injunction to reopen churches.

The 6th Circuit case Tyler was referring to is Roberts v. Neace, 20-5465 (6th Cir., filed May 5, 2020). On May 9 that circuit found that Kentucky Gov. Andrew Beshear's suspension of in-person religious services caused "irreparable harm" and the plaintiffs had a high likelihood of succeeding on the merits.

Up to now most rulings in lower federal and state courts on in-person worship services in California have sided with Attorney General Xavier Becerra's office's defense of Newsom's emergency orders.

The 9th Circuit has already accepted an appeal in South Bay Pentecostal Church v. Newsom, 20-55533 (9th Cir., filed May 16, 2020). That case originated in the Southern District of California and involves multiple attorneys who have been active in opposing Newsom's orders. These include Charles S. LiMandri, litigation counsel for the Freedom of Conscience Defense Fund, and Harmeet K. Dhillon, founder of Dhillon Law Group Inc. in San Francisco.

These litigants received support from Barr on Tuesday evening. Kerri Kupec, Barr's director of communications, posted a letter on her Twitter page citing Newsom's initial March 19 executive order implementing stay-at-home policies and his May 5 order that started a phased reopening of businesses.

"Simply put, there is no pandemic exception to the U.S. Constitution and its Bill of Rights," reads the letter signed by Eric S. Dreiband, assistant attorney general for the Civil Rights Division.

The letter also cites Barr's "Statement on Religious Practice and Social Distancing," issued in April on the same day the Justice Department filed a statement of interest in support of the plaintiffs challenging a local ban on drive-in church services. Temple Baptist Church v. City of Greenville, 4:20-cv-00064-DMB-JMV (N.D. Miss., filed April 10, 2020).

"Government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity," Barr wrote.

"The U.S. Department of Justice's letter to Governor Newsom confirms our position that a virus does not suspend the Constitution," Dean R. Broyles, president of the Escondido-based National Center for Law and Policy and co-counsel in the Cross Christian case, said in an email. "California's stay-at-home orders and gathering bans place unique burdens on religious assemblies, burdens the state has not put on similarly situated secular places where people gather. It is arbitrary to open restaurants, factories, and offices in Stage 2, and force churches to wait until Stage 3."

Critics of the stay-at-home policies have pointed out the virus, blamed in the deaths of 90,000 Americans, has not overwhelmed the country's health care resources to the extent some feared, while the economic shutdown has created the fastest-hitting deep recession in U.S. history.

On Tuesday, Assemblymen Kevin P. Kiley, R-Rocklin, and James Gallagher, R-Yuba City, announced they would introduce a resolution calling on the Legislature to end Newsom's use of emergency powers.

According to a news release, the as-yet unpublished resolution will cite a section of the California Emergency Services Act that states, "The governor shall proclaim the termination of a state of emergency at the earliest possible date that conditions warrant," and grants the Legislature the authority to end the state of emergency unilaterally.

"This resolution is meant to restore a proper balance between the legislative and executive branches," Kiley, an attorney, said in statement.

The proposed resolution also drew attention to comments from Legislative Analyst Gabriel Petek's office raising concernsabout legislative authority and oversight. These came in a May 17 report called "Initial Comments on the Governor's May Revision."

"The governor makes proposals that raise serious concerns about the Legislature's role in future decisions," Petek's report said. "We are very troubled by the degree of authority that the administration is requesting that lawmakers delegate. We urge the Legislature to resolutely guard its constitutional role and authority."

The resolution can't move forward without support from the majority Democrats, who have generally been supportive of Newsom's efforts. But during a hearing on Monday, Senate Budget and Fiscal Review Committee Chair Holly Mitchell, D-Los Angeles, warned officials with the Department of Finance that the governor should be "acknowledging the role the Legislature must play."

Newsom's office did not respond to an email seeking comment Wednesday.