Santa Clara County ban on indoor church services, and required list of attendees is subject of lawsuit

Santa Clara County's ban on indoor church gatherings and a required list of worshipers violates privacy and freedom of assembly rights, a lawsuit states.

The complaint, filed in the Northern District of California by Tyler Bursch LLP on Tuesday, challenges county orders that are more restrictive than those imposed by the state, and comes a day after Contra Costa County rescinded its requirement to have churches keep a list of worshipers that would be submitted to government health authorities in the event a Covid-19 case is linked to a gathering.

Under Santa Clara County's June 5 orders, churches must limit outside gatherings to 25 people and 100 drive-through cars. No attendees are permitted inside. This exceeds Gov. Gavin Newsom's limits, which set social distancing and face mask requirements for people outside, made no restrictions on people in cars and said indoor religious services could be held at 25% of capacity or 100 people, whichever is less.

The lawsuit said the order on attendee limits and maintaining a list is unconstitutional because it does not apply to restaurants, stores, protests or other gatherings of people.

"If there was one general order that would apply to all places people gather together, like a restaurant, church, or grocery store, that would eliminate the unconstitutionality of the county's orders," said Robert Tyler, who filed the lawsuit on behalf of two San Jose churches, Calvary Chapel San Jose and Southridge Church.

Santa Clara County deferred comment to its Emergency Operations Center, which is handling all Covid-19-related requests, but it didn't provide a comment.

Named defendants in the lawsuit include County Public Health Officer Sara H. Cody and the Board of Supervisors.

At minimum the lawsuit is asking to revert back to Newsom's less restrictive orders. However, Tyler said the 100-person limit is unconstitutional as well.

Recently, the U.S. Supreme Court declined to enjoin Newsom's orders to limit church attendance. South Bay United Pentecostal Church v. Newsom, 2020 DJDAR 4844.

"Defendants have made numerous exceptions to their orders, permitting similarly situated secular activities but not indoor religious worship and limiting drive-in and outdoor services," according to the complaint. Calvary Chapel San Jose v. Sara H. Cody, 5:20-cv-03794-VKD (N.D. Cal., filed June 9, 2020).

Public health issue or not, Tyler said a list of attendees at a religious service mandated by the government in order to perform contact tracing in the event of a virus spread is a constitutional rights problem.

"Any time the government wants to have the identification of an individual who is part of a private association is concerning, whether being a church or private club," said Tyler.

James McManis, a partner at McManis Faulkner who has sued and defended governments, predicted Santa Clara County's order would survive a legal challenge

"First Amendment protection of religion is subject to limitations," said McManis, adding that public health and safety is given more weight in situations like this.

"The person charged with the responsibility in imposing these regulations is the county health officer. In her judgment these various rules and regulations differ from business to business," he said.

Paul M. Jonna, a partner at Limandri & Jonna LLP whose firm has also taken legal action on behalf of churches, said the lawsuit is likely meritorious.

"There is a freedom of assembly issue in terms of turning over a membership list," said Jonna. "I think there is a good argument that a membership list is not necessary for public health."