Thousands of churches say they will defy California governor and hold services May 31

Buoyed by a letter from the U.S. Justice Department to Gov. Gavin Newsom that emphasizes the right to worship, a lawyer for a church suing over California’s coronavirus ban on in-person services says he expects thousands of congregations to return to their churches a week from Sunday.

The move comes as the fight over whether the state has the right to prohibit church services for now has moved to the 9th U.S. Circuit Court of Appeals, where a Lodi church is seeking an emergency injunction against the ban, and as hundreds of pastors have signed a petition declaring that their services are “essential.”

“More than 1,200 pastors have signed the ‘declaration of essentiality’ that we were asked to put together,” said attorney Robert Tyler, one of the lawyers fighting for the right of Lodi’s Cross Culture Christian Center to reopen. “We expect more than 3,000 individual churches to open May 31, with or without permission.”

Tyler said the churches that choose to reopen will practice physical distancing and other safety guidelines that the state has outlined to allow restaurants and other businesses to begin reopening in recent days.

“We are not trying to say that churches are somehow exempted from engaging in protective measures that are required of secular enterprises,” Tyler said. “We are simply saying that it’s unconstitutional to require that churches stay closed when they can engage in the same protective measures as a grocery store, restaurant or other similar businesses.”

That is essentially the same argument put forth in a letter to the governor Tuesday from Eric S. Dreiband, assistant attorney general for the U.S. Justice Department’s civil rights division.

“The Department of Justice does not seek to dictate how States such as California determine what degree of activity and personal interaction should be allowed to protect the safety of their citizens,” Dreiband wrote. “However, we are charged with upholding the Constitution and federal statutory protections for civil rights.

“Whichever level of restrictions you adopt, these civil rights protections mandate equal treatment of persons and activities of a secular and religious nature.”

California plans to allow in-person services weeks from now

Newsom’s plans indicate churches can resume in-person services under Phase 3 of the state’s plan to gradually reopen businesses and other facilities. Phase 3 includes movie theaters, hair salons and other operations considered to be higher risk for spread of the virus.

California is currently working through Phase 2, allowing retail stores to reopen with proper precautions, and Sacramento County currently is allowing only drive-in religious services.

But Dreiband warned that California’s planned phases may not be constitutional.

“The of nonreligious workers who are not so restricted by the Executive Order and essential workforce list when telework ‘is not practical’ is expansive,” he wrote. “For example, the list includes ‘Workers supporting the entertainment industries, studios, and other related establishments, provided they follow COVID-19 public health guidance around social distancing.

“Likewise, ‘workers supporting e-commerce’ are included as essential, regardless of whether the product they are selling and shipping are life-preserving products or not. This facially discriminates against religious exercise. California has not shown why interactions in offices and studios of the entertainment industry, and in-person operations to facilitate nonessential e-commerce, are included on the list as being allowed with social distancing where telework is not practical, while gatherings with social distancing for purposes of religious worship are forbidden, regardless of whether remote worship is practical or not.”

The governor’s office did not comment on the plan by the churches, saying only that “we are in receipt of the DOJ letter.”

Courts differ on whether church services can be banned

Three federal judges in California so far have declined to issue temporary restraining orders that would allow church services to be held while the issue is fought out in court. But appeals have been filed with the 9th Circuit. The Lodi church is seeking an emergency injunction that would allow the resumption of such services, and the Justice Department says the judges’ rulings “do not justify California’s actions.”

Other court rulings elsewhere in the nation have gone in favor of some churches, and last week the Wisconsin Supreme Court tossed out that state’s stay-at-home order.

One First Amendment expert said established precedent makes clear that religious services cannot be treated differently than other pursuits.

“Basically, the U.S. Supreme Court says there has to be neutrality, you can’t treat similar traditions differently when it comes to religion,” Sacramento attorney Bradley Benbrook said. “It would not surprise me if there are a number of lawsuits filed over this.”

The announcement by the churches that they plan to reopen at the end of the month, contained in a letter sent to Newsom on Wednesday, tells the governor that “we believe religious practices to be as essential as any grocery store or hardware store.”

“Again, we believe you are attempting to act in the best interests of the state, but the restrictions have gone too far and for too long,” the letter declares. “In order to restore the proper balance between public safety and individual liberties, the clergy we represent have declared their intent to begin holding in-person church services beginning on Sunday, May 31, 2020.

“All services will be held in compliance with CDC and state guidelines for social distancing as is required of ‘essential businesses.’”

Defiance of Newsom’s orders growing

The move comes as there is continued rebellion against the governor’s stay-at-home restrictions, even as California continues to loosen some rules.

Some casinos have announced plans to reopen, a card room in Grass Valley reopened without permission and was raided the next day, and a Butte County pastor held a Mother’s Day service where an estimated 180 people were exposed to someone who tested positive for COVID-19.

The ban on church services, which the governor has said could continue for several more weeks, also has been the focus of repeated demonstrations at the state Capitol. Yet another protest, billed as being the largest in the nation this weekend and dubbed Liberty Fest, is scheduled for noon Saturday.

The event is expected to draw people from around the state, including some pastors who signed the petition to Newsom, but is not expected to take place on the Capitol grounds because the California Highway Patrol has banned such protests during the governor’s state of emergency declaration against large gatherings.

This story was originally published May 20, 2020 at 2:10 PM with the headline "Thousands of churches say they will defy California governor and hold services May 31."