Legal Docket: A lockdown lawsuit

MARY REICHARD, HOST: It’s Monday, October 3rd and we’re glad you’ve joined us for today’s edition of The World and Everything in It. Good morning. I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. Well, today is the first Monday in October and that means a new session of the U.S. Supreme Court begins today.

The four oral arguments this week are disputes over wetlands, MoneyGram checks, the Voting Rights Act, and rebuttable presumptions in the law.

REICHARD: Hmm, it’s technical. Let me see if I can say it simply. So a court assumes, let’s say, a fact in a case to be true, unless one of the lawyers is able to prove that it’s not. Rebutting that presumption. OK?

Told you it was technical.

Well, our legal reporter and my colleague Jenny Rough will bring coverage of that wetlands case and the voting rights case next week. And since we’re just talking, I think this is a good time as any to remind the listener to this podcast to try out Legal Docket Podcast. That’s where Jenny and I do a deep dive into big cases from the just- past term of the Supreme Court.

We have one more episode to go before season three is finished; then we start right in preparing season four!

EICHER: And that’s no exaggeration! I know how much goes into it. We’re talking hours of research, interviews, travel, writing, rewriting, editing, production, and I think Legal Docket podcast listeners really appreciate all that goes into it, based on the feedback, because the finished product really shines. So, worth the effort.

REICHARD: And it’s all thanks to the people who support WORLD financially. I will never forget that and I am grateful.

Well, for today’s final summertime legal docket, more legal fallout from the COVID-19 vaccine mandates and restrictions.

Litigation was practically guaranteed to happen after so many levels of government imposed restrictions in an uneven and at times unconstitutional manner.

EICHER: Today we turn to litigation against the county of Santa Clara in California.

That’s where Pastor Mike McClure leads Calvary Chapel San Jose. He and his church have been tangling with the county’s Covid restrictions.

Now last month, the County lifted almost all restrictions, leaving only a requirement for masking in higher-risk settings.

But from May through October 2020, restrictions were in place and the church defied them. It continued to hold indoor services and didn’t put limits on attendance.

And here is Pastor McClure talking with Newsmax TV:

MCCLURE: I mean, we had so many people hurting, we had a huge amount of just suicide attempts. And we looked at just the church, and people needed to be in church. I mean, that's what church is for. If we look at the hospitals in America, all the hospitals are started by the church, it's like, they're not gonna close the hospital. So why should we close worship services, when really that's the most important thing?

REICHARD: Litigation between the county and the church has many twists and turns.

Briefly, in fall of 2020 the county filed a civil complaint against the church for failure to comply with public health orders. The trial court issued an order telling the church to comply.

But the church didn’t do that. The county then sought an order of contempt along with fines and penalties of nearly three million dollars. The court granted that.

In September 2021, the church and its pastors sued state and county officials for violating their civil rights under the First and Fourteenth Amendments, including the Eighth Amendment’s prohibition against excessive fines. The complaint alleged the county targeted religious organizations with harsher restrictions than similar secular settings and then imposed crippling fines.

EICHER: So the state appeals court in California in August agreed with the church. It found the restraining orders and injunctions unconstitutional, under the state constitution, and cited guidance from the the U.S. Supreme Court on numerous occasions. It also reversed the order to pay money sanctions.

The opinion says it’s improper to treat religious settings more harshly than similar secular ones. Specifically, such an order, quoting here, “is not neutral and of general applicability if the public health order permits any other type of indoor secular activity … ” In other words, it’s likely to fall short of the U.S. Constitution’s Free Exercise Clause.

REICHARD: But the dispute’s still not over. On September 26, the county and its Health Officer appealed that decision.

I reached out to the County for comment by phone and by email, but didn’t hear back.

I did hear from the lawyer for the church and its pastors, Robert Tyler. He’s general counsel for Advocates for Faith and Freedom, a nonprofit law firm.

TYLER: The County of Santa Clara first launched the lockdowns, a few counties around them followed, then the state of California followed, then the Feds followed thereafter on a federal level. So here we are, we're basically at Ground Zero, where this litigation that we're involved with, on behalf of Calvary Chapel, San Jose, it all started there.

The government assessed that pet shops and marijuana dispensaries were essential, whereas religious activity expressly protected by the First Amendment was not. Well, that didn’t set well:

TYLER: And we had over 3000 pastors in California sign a declaration that said we are essential as a church, and we're going to reopen on May 31 2020, the day of Pentecost, and we’re not asking for permission.

Not only that:

TYLER: Pastor Mike McCluer said, I'm willing to be placed in jail if necessary. And even though the judge has ordered us not to meet, we're going to continue to meet because there are people hurting, lives are at stake, souls are at stake.

Even though the church won on appeal to get the contempt convictions overturned, the county now seeks $2.8 million in fines that it levied on the church.

The church is again contesting that, and more:

TYLER: And so we just recently filed a motion…in federal court to obtain a judgment in our favor asking the court to rule that these health orders are unconstitutional. Even the mask orders and the social distancing orders.

This is somewhat of a very new issue, because you might recall the Supreme Court held that these limitations on how many people can gather for church were unconstitutional. However, the Supreme Court never addressed masks or social distancing. These other requirements. And so this is going to be an important issue for the future.

Aside from the big fines, Tyler says it’s important to clarify the boundaries of the First Amendment when it comes to government action:

TYLER: …and even though the Supreme Court had used this, what they call this neutral and generally applicable principle, where if all assemblies and all gatherings are required to socially distance, to wear masks, or to shut down altogether, then arguably the same has to be true for a church, the government came and picked winners and losers, not based upon risk, not based upon anything other than what the government deemed to be essential.

Government picking winners and losers can’t withstand legal scrutiny, especially given how the restrictions permitted large secular gatherings, say in a big box store:

TYLER: This cannot stand because these individuals, these people are coming together. They're there for really a common purpose: that's to shop, whether they're there for any other reason, it doesn't really matter what their reason is for gathering together when looking at these COVID-19 Health orders, the government cannot come in and, you know, pick winners and losers, unless they're doing so based upon some legitimate risk analysis. But across the country, the government didn't do that. The government looked at churches and said, “you are not as important as going out to go to a grocery store, to go to a liquor store, to out in California, to go to a marijuana dispensaries.”

It’s the failure to understand what “essential” really means.

TYLER: I made the argument early on that a person's spiritual and mental health is as important as someone's physical health. So if I'm allowed to go to the grocery store, because it's important for my physical health? I know many people who struggle from anxiety, depression and other issues that for them, going to church is as important and in fact, in many cases, more important to them than their physical health.

The church and pastors are now asking the court to lift the millions of dollars in sanctions the county seeks.

To be clear, the county is no longer fining churches and the prior health restrictions are for the most part over. But the government push for vaccines and a state of emergency still in effect in the state means questions remain unanswered:

TYLER: You know, as an evangelical Christian, I believe that there are Christians who could differ on this absolutely. And It's for each individual to decide. And many individuals looked upon this and said my spirit is against this, it's telling me that I need to avoid taking this.

Many cases like this are winding through the courts, and it’ll take some time for consistent, organized principles of law to be sorted out.

And that’s this week’s Legal Docket.

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