All together in one place: time to open the churches

On May 31, Christians will be celebrating Pentecost Sunday, the day the Book of Acts records the Holy Spirit visited Christ's disciples, just as Christ had promised ("I will ask the Father, and he will give you another helper who will be with you forever. That helper is the Spirit of Truth. The world cannot accept him, because it doesn't see or know him. You know him, because he lives with you and will be in you." John 14:15-16. "[T]he helper, the Holy Spirit, whom the Father will send in my name, will teach you everything. He will remind you of everything that I have ever told you." John 14: 26-27.)

As Luke relates it in Acts 2:1-4, "When the day of Pentecost came, [the disciples] were all together in one place. Suddenly a sound like the blowing of a violent wind came from heaven and filled the whole house where they were sitting. They saw what seemed to be tongues of fire that separated and came to rest on each of them. All of them were filled with the Holy Spirit and began to speak in other tongues[a] as the Spirit enabled them."

This Sunday, just as the disciples were "together in one place," a number of churches throughout the state are planning to mark the occasion by defying local health and safety orders and gathering their members together in one place. Some, such as our client, Abiding Place Ministries, based in Campo, (note, Abiding Place Ministries, not Abiding Remote Livestream Ministries), and South Bay United Pentecostal Church in Chula Vista, are among those houses of worship challenging state and county stay-at-home restrictions on communal worship service. Abiding Place Ministries v. Newsom, 3:20-cv-00683 (USDC SD-CA); South Bay United Pentecostal Church v. Newsom, 3:20-cv-00865 (USDC SD-CA). Both lawsuits are pending before Judge Cynthia Bashant, who denied the churches' TRO requests. On June 3, the court will hear oral argument on Abiding Place's motion for a preliminary injunction.

But South Bay United Pentecostal Church, represented principally by Rancho Santa Fe based Limandri and Jonna, chose the express route toward reversing the lower court's order by appealing the TRO decision to the 9th U.S. Circuit Court of Appeals (No. 20-55533). In a terse two-page opinion issued May 22, Judges Barry Silverman and Jacqueline Nguyen, with a dissent from Judge Daniel Collins, rejected South Bay's appeal, stating, "We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure," as though a cure for a contagious disease is required before constitutional liberties will be restored. (Note to Judges Silverman and Nguyen: There is still no cure for HIV/AIDS, cancer, polio -- although there is a vaccine -- and dozens of other diseases). Under the 9th Circuit's tortured reasoning, the constitution can be suspended indefinitely, even permanently, until people stop getting sick and dying.

The only limitation they countenance is that the state must treat some "nonessential" secular activities in the same way it treats places of worship, even if those activities are not protected by the Constitution. On this reasoning, the state can then fully exempt favored activities while keeping houses of worship closed or highly restricted.

While Gov. Gavin Newsom on Monday was issuing new statewide guidelines for houses of worship, South Bay petitioned the U.S. Supreme Court to enjoin the state's stay-at-home restrictions prior to Pentecost Sunday. Under the state "guidance," faith communities remain required to adopt mitigation protocols that are more demanding than the mitigation protocols required of other "essential" businesses (e.g., "limit attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower") and the state continues to prescribe standards for interactions of faith communities in houses of worship (e.g., requiring shortened services, not allowing clergy to visit the sick, limiting congregational worship, such as singing, group recitation, modifying and forbidding traditional faith practices, etc.). However, for activities the state deems important, including cannabis dispensaries, abortion clinics, mental health institutions and big-box stores that have remained crowded throughout the crisis, they have imposed almost no restrictions.

As of this writing, the Supreme Court has yet to respond to South Bay's petition. But the high court should grant it, not merely because of the jurisdictional split of opinion that makes it ripe for review, but because the question whether a "pandemic exception to the constitution" (in the words of U.S. Attorney General Bill Barr) exists is not likely to become any more pressing than it is right now.

In the many lawsuits filling dockets throughout the country, one key area of doctrinal disagreement has been whether the deferential standard under Jacobson v. Massachusetts, 25 S. Ct. 358 (1905), favored by courts that have denied injunctive relief to churches, extends to the First Amendment and other constitutional provisions. In his dissenting opinion, the 9th Circuit's Collins characterized that argument as "fundamentally inconsistent with our constitutional order," quoting Sterling v. Constantin, 287 U.S. 378, 397-98 (1932): "If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases[.]"

Isn't that what is happening here and in other states controlled by Democrat governors? In California, the separation of powers has been suspended and although the Legislature has reconvened we are into the third month of an autocracy. As we argue in our case, "The Constitution of the United States establishes certain limits not to be transcended by the different departments of the government." Marbury v. Madison, 5 U.S. 137. The government of this state and county have limited power, even in times of health emergencies, and arbitrary interference with houses of worship, and the indefinite closure of churches goes "far beyond what [is] reasonably required for the safety of the public." Jacobson at 28. "[T]he power of the Legislature or municipality under what is commonly designated as the 'police power of the state,' is not absolute." California Reduction Co. v. Sanitary Reduction Works, 126 F. 29, 34 (9th Cir. 1903), aff'd sub nom. California Reduction Co. v. Sanitary Reduction Works of San Francisco, 199 U.S. 306 (1905). "It does not necessarily follow that every statute which may be enacted by the Legislature, or order passed by a municipality, ostensibly for the purpose of preserving the public health, protecting the public morals, and guarding the public safety, is always to be accepted as a legitimate exercise of the police power of a state." Id.

And as the Jacobson court noted, courts must give effect to the Constitution where "a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law." Id. at 31.

The COVID-19 crisis has hit every sector of American life. But not every sector of American life is the beneficiary of fundamental rights enumerated in our Constitution or has the spiritual and conscientious needs of its members substantially burdened. And then, there is the nonsensical arbitrariness of the stay-at-home guidelines. Give ear to the rare insight of one particularly observant jurist:

"Since the inception of this insanity, the following regulations, rules or consequences have occurred: I won't get COVID if I get an abortion but I will get COVID if I get a colonoscopy. Selling pot is essential but selling goods and services at a family-owned business is not.... Four people can drive to the golf course and not get COVID but, if they play in a foursome, they will. If I go to Walmart, I won't get COVID but, if I go to church, I will. Murderers are released from custody while small business owners are threatened with arrest if they have the audacity to attempt to feed their families."

Judge Michael D. McHaney in Mainer v. Pritzker, Circuit Court of Clay County, Fourth Judicial Circuit of Illinois, 2020-CH-10 (May 23, 2020).

There are other arguments just as sensible to be made concerning the irrational response to this health emergency, and lawyers throughout the nation are making them in case after case. Why must houses of worship be shuttered entirely when there are obvious less restrictive approaches? The government's objectives could be equally achieved by restricting the movement of people infected with or exposed to COVIN-19, or isolating people with risk conditions, instead of treating the entire population as if every individual is a carrier of a deadly disease and a threat to each other's life. But common sense is in short supply when state control of religion is in play.

No doubt readers of this commentary include those who believe houses of worship shouldn't be given special rights, or any rights, notwithstanding the constitution's clear limitation on government's "prohibiting the free exercise [of religion]." But as the day of Pentecost approaches, churches aren't particularly asking to be exempt from regulations, so long as they are applied neutrally and are generally applicable, and so long as the least restrictive means for limiting gatherings is adopted. They are asking to be treated equal and to worship God "all together in one place." For the Greek word for "church" (ekklesia) doesn't factor into it a Zoom meeting. It literally means: assembly. 