Bush Judge Denies Calif. Church’s Request for Relief From Ban on ‘Non-Essential Gatherings’ During Pandemic

SACRAMENTO (Christian News Network) A federal judge nominated to the bench by then-President George W. Bush has denied a church’s request for an injunction against California Gov. Gavin Newsom’s stay-at-home order and an order from San Joaquin County prohibiting “non-essential gatherings of any number of individuals.”

Judge John Mendez ruled on Tuesday that the orders are neutral and do not target religion, as they are generally applicable to all gatherings, religious or not.

“[T]he incidental — albeit uncomfortable — burden the State and County orders place on the exercise of religion simply do not engender the type of religious discrimination the Constitution aims to prevent,” he wrote.

“The State and County orders are not unconstitutional,” Mendez continued. “Rather they are permissible exercises of emergency police powers especially given the extraordinary public health emergency facing the State.”

On March 19, Gov. Newsom signed Executive Order N-33-20, which ordered “all individuals living in the state of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.”

San Joaquin County soon also issued an order prohibiting “all non-essential gatherings of any number of individuals.” A press release from the county similarly stated, “All public and private gatherings of any number outside a household or living unit is prohibited.”

Cross Culture Christian Center in Lodi, which meets on Wednesdays and Sundays, reportedly continued to hold meetings despite the orders, and police soon posted a “Notice of Public Nuisance” on the building about its non-essential usage.

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Two days later, a county public health officer also issued an order to Bethel Open Bible Church, which leases the building to Cross Culture Christian Center, outlining that allowing its tenant to use the building for in-person services violated county and state stay-at-home orders.

“Any person who refuses or willfully neglects to comply with this emergency order is guilty of a misdemeanor, punishable by fine and/or imprisonment,” it also warned.

Therefore, when Jonathan Duncan, who leads the church, returned that Sunday, he found that the locks had been changed.

Cross Culture Christian Center consequently obtained legal representation from the faith-based National Center for Law and Policy, which sent a cease and desist letter to the Lodi mayor and chief of police, among others.

The correspondence noted that the church, while continuing to meet, had been “careful and diligent to discuss and observe widely recommended health and safety measures including, but not limited to, regular handwashing, social distancing, and asking the elderly, sick or immune compromised to stay at home, among others.”

It argued that prohibiting all gatherings was not the least restrictive means of addressing the COVID crisis, as required by legal precedent.

“[T]hese orders do not leave open alternative avenues of expression for CCCC — they don’t leave open any alternative avenues of expression. In fact, the government’s ban is totalistic. CCCC is forbidden to meet in its leased building, and it may not meet
anywhere else to express its religious beliefs together,” the letter stated.

“As such, whether content-based or content neutral, the governor’s executive order and the county order are an unconstitutional infringement on CCCC’s freedom of assembly and freedom of speech,” it said.

Read the letter in full here.

Cross Culture Christian Center soon sued Newsom, public health officer Maggie Park, the City of Lodi, and Tod Patterson, the police chief of Lodi, among others. It contended that the orders violated the church’s constitutional rights to freedom of speech and assembly, as well as the free exercise of religion, and stated that the “church … is much safer than shopping at Costco, Walmart, or Home Depot in Lodi.”

The church also advised that, if allowed to hold services, members would exercise social distancing in any meetings, whether indoor or drive-in, and would keep gatherings under 50 people “until the dangers posed by COVID-19 pass.”

However, on Tuesday, Judge Mendez said that he found the church’s arguments to be “unpersuasive,” as the orders “flow from valid exercises of state and local emergency police powers.”

“Plaintiffs failed to produce any evidence that their in-person gatherings pose little threat of increasing COVID-19’s spread,” he wrote. “‘Because asymptomatic and pre-symptomatic carriers of the virus can infect others,’ Plaintiffs’ belief that the church’s congregants ‘have never had or contracted [] coronavirus … never been at any time exposed to the danger of contracting it, and [] never been in any locality where [] coronavirus . . . has [] existed,’ is ‘largely meaningless.'”

“Indeed, the known reality of how unknown carriers transmit this highly-infectious disease further belies Plaintiffs’ argument,” Mendez said.

He also opined that grocery and liquor stores, as well as pot shops, are not comparable to holding church services but rather pointed to the words of another federal judge who ruled in the Maryville Baptist Church case in Kentucky. That judge found such gatherings more akin to a public gathering in a restaurant, movie, concert, or sporting event where the activity is not transitory.

“The State and County bans on mass gatherings such as sporting events, concerts, dining rooms, and in-person church services flow from a larger goal of substantially reducing in-person interactions. Plaintiffs fail to show this goal, and the means used to achieve it, do not bear a ‘real and substantial relationship’ to preventing widespread transmission of COVID-19,” Mendez concluded.

“Moreover, … Plaintiffs do not show the orders are ‘beyond all question’ a ‘plain, palpable invasion of rights secured by [] fundamental law,'” he said. “The Court finds Plaintiffs are not likely to succeed on the merits of their challenge to the State and County stay at home orders as impermissible exercises of emergency police powers.”

Read the decision in full here. 

The group Americans United for Separation of Church and State had filed an amicus brief in favor of the orders and against the church’s request for an injunction.

Duncan says that he is disappointed with the ruling, remarking in a statement, “It is time for pastors and religious leaders across the state to rise up and start pushing back against these draconian stay-at-home orders that completely fail to take into account the true essentiality of religion in our society.”


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