Megachurch Takes on CA COVID-19 Restrictions

In the midst of the COVID-19 pandemic, California issued regulations that banned large social gatherings with an exception for faith-based service gatherings. This exception permits outdoor services, with masks and proper social distancing procedures in place, and indoor services, as long as they do not exceed 100 attendees or 25% of the capacity of the space, whichever is lower. Despite these restrictions, Grace Community Church, a megachurch located in Los Angeles, has continued to hold large, indoor gatherings that do not require masks or social distancing. Los Angeles County filed a lawsuit on August 12th against Grace Community Church to enforce the safety restrictions, but the judge denied the county’s request. This ruling prevents the county from enforcing the ban on large indoor gatherings until a full hearing on September 4, 2020. The judge did, however, order congregants to wear masks and social distance.

After the initial court victory, Pastor John MacArthur held a large indoor service on August 16th, telling his congregants, “The good news is, you’re here, you’re not distancing, and you’re not wearing masks.” Research continues to show the dangers of indoor church services becoming “super-spreading events”: in Washington state, a choir practice led to 45 singers contracting COVID-19, including two people who died. In attempting to enforce the state regulations, L.A. County echoes these concerns. L.A. County public health officer Dr. Mantu Davis said that he reviewed images and videos of Grace Community Church’s indoor, maskless services, and he believes “it is only a matter of time-- if it has not already happened-- until there is a significant outbreak of COVID-19 cases among the attendees.”

As states attempt to respond to the Coronavirus pandemic and implement regulations to limit the spread of the virus, they have collided with the thin line between church and state in America. Lawyers for Grace Community Church argue that “church is essential,” and these restrictions place churches “under assault from our own government simply for holding church.” They argue that the health order unconstitutionally burdens the right of churches to worship, especially when the county has allowed other businesses to operate and protests to take place. The key question at hand is whether the state interest in preventing the spread of COVID-19 is compelling enough to override the First Amendment right to free exercise. Additionally, we must ask what constitutes an attack on free exercise? Does Grace Community Church have a constitutional right to complete and unfettered free exercise of religion? No constitutional right is absolute, however, so in my opinion, temporary restrictions on the churches worship services do not translate to a denial of their right to free exercise.  

The state of California already created exceptions for churches to practice in person, albeit at a limited capacity; this grants churches, like Grace Community Church, safe and viable options for worship. A CNN reporter asked MacArthur why the church doesn’t “get creative” with their response to the pandemic “so you can obey… ‘god’s law,’ but also obey public health regulations?” MacArthur responded by saying that they trust their congregants to make “adult decisions” about their health: “Nobody’s forcing anything, they’re here because they want to be.” In the midst of a global pandemic, however, individual decisions have collective consequences. The personal and “adult” decisions that MacArthur spoke of, could have an incredibly damaging impact on the health of others. Research has shown, as Dr. Davis outlined that Grace Community Church’s indoor, not socially distanced, maskless services are a potential hotspot for the virus to spread. In an opinion piece for The Hill, Law Professor Jonathan Turley argues that “there is nothing more compelling than battling a pandemic,” and limiting gathering size has proven to be highly effective at doing so. 

The context for this issue is everything. The right to free exercise under the Constitution is not absolute, but can be restricted when there is a compelling state interest. The state has a responsibility to protect its citizens, and the continued indoor services of Grace Community Church pose a danger to the general public of Los Angeles County, beyond the few hundred individuals that attend the services. If the issue were confined just to the health and safety of those consenting adults that attend the services, there would be little to no state interest to intervene, but Turley points out that the “free exercise of religion does not allow dangerous acts, even if they are part of a demonstration of faith.” These acts of faith-- worshipping in person and inside, not wearing a mask, and not social distancing-- pose a significant threat to the congregants and everyone that they come into contact with. In my opinion, the state interest to mitigate the spread of Coronavirus justifies the temporary restrictions on the manner in which Grace Community Church may worship and it therefore does not violate their First Amendment right to free exercise of religion. This legal battle is still unfolding as the court will rule on the county’s ability to enforce these restrictions on September 4.

Catholic Charity Fights the Affordable Care Act

 Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

The Little Sisters of the Poor is a Catholic charity which serves elderly women in over thirty countries.  It is run by a group a Catholic nuns whose mission is to serve the elderly and the poor.  The Catholic Church teaches that the use of contraception is immoral under the Catechism of the Catholic Church #2336.  This belief has allowed them to be exempt from certain services in the Affordable Care Act which go against the church’s religious beliefs.  

On October 6, 2017 the Trump administration broadened the cases for exemption.  Nonprofits such as Little Sisters of the Poor could now claim a “moral” exemption when refusing to pay for the coverage of contraceptives included in the Affordable Care Act.   

The State of Pennsylvania sued the Federal government for its protection of the Little Sisters of the Poor.  Pennsylvania and its attorney general, Josh Shapiro, claimed that the exemption was unconstitutional, violated federal anti-discrimination law, and the Administrative Procedure Act.  

The Sisters were granted the notion to intervene in April 2018.  On January 14, 2019 their case was heard and the court ruled against them.  The Sisters appealed immediately and their case was sent to the third circuit.  In the third circuit court of appeals the court again ruled against them.  The lawyer for the charity argued that the government did not need the Little Sisters of the Poor to contribute to funding of contraceptives.  

On January 17, 2020 the Supreme Court agreed to review the decision of the third circuit.  The court ruled 7-2 in favor of the sisters.  They stated that the Department of Health, Labor, and the Treasury, had the authority to exempt organizations for religious or moral reasons.  

The wording in the  Affordable Care Act states, “additional preventive care and screenings . . . as provided for in comprehensive guidelines supported by the Health Resources and Services Administration.”.  The court used the term “as provided for” as a meaning which permits exemptions.  

Justice Ginsburg and Justice Sotomayor offered a dissenting opinion.  They argued that the wording of the Health Resources and Services only permitted the decision of the type of women’s health care provided and not to allow exemptions from it.

Dating further back, in 2013 the Little Sisters of the Poor, represented by Becket, lost a case against the federal government protecting their religious freedom.  They appealed the ruling and lost again in the U.S Court of Appeals.  On the last day of 2013, Justice Sotomayor granted the Sisters emergency protection which gave them temporary protection from any fines.  In 2014 the Supreme Court granted the Little Sisters of the poor a longer injunction, and the case was sent back to the U.S Court of Appeals for reconsideration.  

The Court of Appeals ruled again against the Sisters, but the Supreme Court agreed to further hear the case in 2016.  The Little Sisters of the Poor case was heard alongside five other religious non-profit cases involving Zubik v. Burwell.   During the hearing the Obama administration admitted that the government could find other ways to fund contraceptives that did not involve the Little Sisters of the Poor.  The Supreme Court ruled unanimously in favor of the Sisters.

It was no surprise that the court ruled in favor of the Little Sisters of the Poor given that five of the nine justices are Catholic and may carry some biases.  However, even though they may carry those opinions before the case does not mean that the decision  was wrong.

The arguments that are most convincing in freedom of religion cases are whether or not the religious beliefs are legitimate and whether they are practically permissible.  Without these truths we would have unlimited religious beliefs.  For example let's say that someone has the religious belief that contraceptives are God.  Would the government break the first amendment by endorsing the religion which believes in this?  Obviously that religion does not exist. 

The first amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ”.  This statement implies that there are established and unestablished religions.  The Catholic Church is a Christian religion which dates back to approximately 36 AD.  It is highly institutionalized around the world and has a very organized set of beliefs.  To many this would be considered a legitimate religion.  

Should it be Illegal to Save Lives?

A nonprofit in Philadelphia called Safehouse tried to open a facility to safely use opioids under medical supervision. The purpose for this facility was to allow people to use these drugs in an environment that would have clean needles and drugs to prevent overdoses available. The facility would not provide the illegal drugs itself, only a safe environment which would further offer legal counseling, and information about rehabilitation and housing. Safehouse thought that this would allow trust to be built between the users and the workers so that they would eventually seek treatment and make it to recovery. William McSwain, the U.S. attorney for eastern Pennsylvania, fought against the opening of this facility along with the Trump administration saying that it is illegal to own property where illegal drugs are used and that this strategy to combat drug use is crossing a line. 

Safehouse has defended themselves saying that they should be exempt from the law around owning property because first, they are a medical facility, and second that it is their free exercise of religion to own this facility. Safehouse is a Judeo-Christian group who believes in preserving life and cites the Religious Freedom Restoration Act of 1993. This act prohibits the government from burdening anyone’s exercise of religion. The act specifically states that the government may burden one’s free exercise only if it furthers a compelling governmental interest. Safeway’s lawyer, Ilana Eisenstein, said their board of directors have, “core tenets preserving life, providing shelter to neighbors, and ministering to those most in need of physical and spiritual care”. McSwain wants the facilities to close to bring, “order, reason, and fairness to a potentially explosive situation.” Is it a compelling governmental interest to not allow these facilities to be open because of illegal drug use or is it Safehouse’s religious freedom to have these facilities? Thomas Jefferson in “A Bill for Establishing Religious Freedom in Virginia”, states his belief that the civil government can only interfere with religious freedom when it disturbing ‘peace and good order’. Is having these facilities open disturbing peace and good order in Philadelphia? Or is it helping with an epidemic that is already disturbing peace and good order?

In an early U.S. Supreme Court case, Reynolds v United States, the court unanimously decided to not make an exception for a man named George Reynolds to participate in bigamy based on the fact that polygamy is considered to be a threat to ‘peace and order’ and that marriage is a civil contract that is under the jurisdiction of the state. And that when George Reynolds entered into his second marriage, he did so with knowledge of the law, meaning he had criminal intent. The Crack House Statute Law that William McSwain referenced states that it is a “felony to knowingly open, lease, rent, use of maintain any place for the purpose of manufacturing, distributing, or using any controlled substance." Like George Reynolds, Safehouse had knowledge of the law that prohibited their actions, but thought that they should be exempt because the facility was medical in nature and their purpose was to preserve life which is a Judio-Christian belief. Would not opening these facilities then go against their beliefs? Anytime one does not actively help preserve life, are they betraying their Judeo-Christian beliefs? As Thomas Jefferson also references in his "Bill for Establishing Religious Freedom", I believe that the civil magistrate is not equipped to judge when an individual or group is prohibited to practice their religion or what their religion is.

    In a similar instance in Arizona, a man named Scott Warren fought a law prohibiting people from leaving behind aid, such as water, for immigrants crossing the United States-Mexico border because of his religious belief of helping people. Warren is part of the non-profit ‘No More Death’ which is affiliated with the Unitarian Universalist Church. The judge in this case, allowed Warren to continue giving aid. Should the same be given to Safehouse? In this case, based on the religious freedom argument, Safehouse should be allowed to open these facilities. For Safehouse, allowing these facilities to run is exercising their free exercise of religion in preserving life. It goes against their core religious belief to not help. It is further not going against the Religious Freedom Restoration Act of 1993 because the overall purpose of the facility is not to encourage drug use but to stop drug use. Helping with the opioid epidemic in America is a compelling governmental interest. Safeway is helping prevent the spread of disease with clean needles, stopping overdoses with drugs onsite, and offering people information about treatment. If Safehouse were to be promoting drug use, then opening the facility could then be seen as violating the Religious Freedom Restoration Act. However, their religious beliefs lead them only to help preserve life that they saw harmed by drug use in Philadelphia. Their goal does not go against the government’s because both want to end drug use and Safehouse’s specific strategy should be legal in part because of their free religious exercise to do so.

Bostock v. Clayton County: The Supremacy of Constitutional vs. Federal Law

     On June 15th, 2020, the Supreme Court ruled in Bostock v. Clayton County that Title VII of the Civil Rights Act of 1964 protects LGBT+ workers on the basis of sex discrimination. The majority decision held that if the only distinguishing factor between accepting someone's employment status is sex, and his/her behaviors were the same as someone from the opposite sex, such as engaging in a relationship, that such employment practices are discriminatory per Title VII.

    In an op-ed from the ACLU, Rose Saxe both praises the highest court's decision and raises concerns about future discrimination under the guise of the freedom to exercise religion. Dissenting Justices Alito and Thomas held that "sex discrimination" refers solely to whether the alleged discriminee is biologically male or female rather than sex-adjacent criteria like orientation, and also expressed concern that the ruling would impede upon individuals' right to freely exercise religion. Saxe affirms toward the end of the op-ed that "[i]t is a tremendous victory for the court to say that the plain words of the law protect LGBTQ people, just like everyone else. But that victory is fragile and will be eroded if the court furthers the agenda of the Trump administration by giving anyone who objects on religious grounds a free pass to violate the law."

    This last sentence should arouse suspicion even in legal laymen, as the free exercise of religion is part of the very first amendment to the Constitution—a right we are told by the Founders is guaranteed by the Creator, not by the government. Saxe here also calls into question the sincerity of religious beliefs that would call for discrimination against LGBT+ people. While it was decided in Reynolds v. United States that the government could prohibit religious practices but not beliefs or opinions, the case hardly set a clear precedent to follow. It effectively granted the government carte blanche to prohibit any religious practice. The judge opined that sacrifice was not to be "seriously contended" as protected behavior under the First Amendment, but why not? It may seem obvious to us that murder is wrong, but surely to some people in the world, sacrifice is fervently believed to be the only way into the afterlife. The First Amendment proclaims a freedom to exercise religion, not only to maintain faith in such practices. Where, then, is the line drawn? 

    Arguably at where others' rights begin. According to the Declaration of Independence, technically not codified into American law, but integral to the nation's framework, "all men... are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Liberty and the pursuit of happiness are not so easily defined, but the right to life is clear. Therefore, it stands to reason that murder would not be protected under the free exercise clause. But what about freedom from being fired for sexual orientation or gender identity? Who's to say that one's right to such a freedom trumps the right to freely exercise religion? The question is, which is supreme: the First Amendment or the Civil Rights Act of 1964?

    The supremacy clause of the Constitution states that constitutional law, federal laws, and treaties all supersede state law when the two come into conflict. It does not, however, make a distinction between the three types of federal laws, which is problematic given the Civil Rights Act of 1964 is such a law. Fortunately, there is precedent to work off of in Marbury v. Madison. The judge here asserted that "a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument." We once again find ourselves at a difficult juncture: given the Civil Rights Act's ability to violate constitutional law, should it be void? Or rather, should it be clarified that the limits of the act's powers to prevent discrimination end where free exercise of religion and freedom of speech begin?

        Civil rights legislation was key in allowing minorities and women full access to the American way of life; it would be foolish to strike it out on grounds of a possible interpretation that could infringe upon religious rights. The answer is clearly the latter. Saxe is correct then in worrying that the victory in Bostock v. Clayton County is fragile, as it violates the free exercise clause and should be overturned. When rights come into conflict, legal precedent makes it clear: the Constitution comes first.

California Church Singing Ban

    Over the summer, three churches in northern California challenged the ban on singing in church, put in place to mitigate the spread of COVID-19. Calvary Chapel in Ukiah, Calvary Chapel in Fort Bragg, and River of Life Assembly of God Church in Oroville, represented by the American Center for Law and Justice (ACLJ), filed for a preliminary injunction in July against California’s singing ban. Governor Gavin Newsom issued an order to ban singing in churches because singing and chanting, “present an increased likelihood for transmission of Covid-19 through contaminated exhaled droplets,” according to state health officials. This ban was thought to be necessary after the CDC, “studied how coronavirus spread from one member to 87% of the singers at a Washington Choir Practice.” However, before the ban on singing, the ACLJ expressed that these churches were following CDC guidelines to combat the spread of the virus by mandatory mask wearing, social distancing, and temperature screenings during all services. The ban on singing and chanting in church did not apply to the large scale protests occurring in California at the time, which Governor Newsom shows an unwavering support for. The Churches believe Governor Newsom’s ban is a direct target against Christians and the way they are allowed to practice their beliefs, as singing is an integral part of worship guaranteed by the First Amendment of the Constitution. 

    The Churches argue that the ban on singing and chanting is unconstitutional because it violates their right to free exercise of religion established in the First Amendment. Although the Covid-19 pandemic is a very pressing issue at this time in the United States, the ACLJ asserts that a virus should not suspend any constitutional rights under any circumstances. On the other hand, the state of California and state health officials believe that the singing ban is not a matter of constitutionality, rather a necessary action to help reduce the spread of coronavirus. The state health officials of California suggested other ways to worship that would allow singing or chanting, such as internet streaming where people do not need to congregate in an indoor area. However, the Churches believe that it is their constitutional right to exercise their First Amendment right to determine whether they will congregate together and sing as a type of worship. Under no circumstances will their First Amendment right be infringed upon by the state. The First Amendment clearly states that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In the case of the three Churches, they believe their constitutional right to free exercise is in fact being prohibited by Governor Newsom’s ban on singing and chanting, as these are essential elements of worship and practicing their religious beliefs. 

    As this issue continues in California, I believe that the California ban on singing and chanting in churches should be struck down as it infringes upon the Churches’ guaranteed First Amendment right to free exercise of religion. Although the Covid-19 pandemic is a serious problem in the country, a suspension of what are guaranteed rights is unconstitutional. This is an important issue to address because if the ban is left standing, there is a potential for a dangerous precedent to be set based on the outcome of this case. If states have the authority to ban or prohibit aspects of the first amendment, such as the free exercise of religion in this case, what is next? A precedent where state governments use power to ban or impede constitutional rights they may disagree with, would be detrimental to the individual freedoms every citizen of the United States holds. 

    The ban on singing and chanting in church also undermines the separation of church and state and the intersection between law and religion. State law cannot supersede federal law, which grants the free exercise of religion in the First Amendment of the Constitution. If Governor Newsom’s ban is allowed, state law would essentially be trumping federal law. The 1940 case Cantwell v State of Connecticut further demonstrates how this ban is unconstitutional. Religious soliciting was argued upon in this case, the state attempting to prohibit Jehovah’s Witnesses from soliciting with pamphlets and other religious books or phonographs. The court rules that states have the power to regulate such soliciting such as time and place, but they do not have the power to infringe upon guaranteed religious freedom of the Jehovah’s Witnesses. In the case of the church singing ban, the state does not have the constitutional power to institute this ban, which encroaches upon the Churches’ freedom to exercise their religion in any way. 

    Along with a dangerous precedent and lack of acknowledgment to separation of church and state, I do not believe the California ban on singing and chanting is a neutral law. This ban is not applicable to all groups of people, rather it specifically targets churches and their members, infringing upon the way they practice religion. To make this law neutral, Governor Newsom would have to apply the ban of singing and chanting to other gatherings of people, such as the large-scale protests occurring in California, where social distancing is sometimes difficult to achieve, and mask wearing is not always universally practiced. The ACLJ however, described the church members as adhering to CDC guidelines including mask wearing and social distancing. The lack of neutrality of this ban further demonstrates its unconstitutionality. Even amid the coronavirus pandemic, the First Amendment right to free exercise of religion shall not be hindered or infringed upon in any way, and therefore, the California ban on singing and chanting is unconstitutional, and must be overturned.