9th Circuit sides with church, San Jose judge holds one in contempt

Attorneys for churches are attempting to make the most of two recent U.S. Supreme Court decisions in favor of religious groups that challenged Covid-19 restrictions.

On Tuesday, the 9th U.S. Circuit Court of Appeals sided with a San Diego County church while a judge in San Jose held another in contempt.

In a very brief order, the appeals court denied an injunction sought by a Chula Vista church. But the panel sent the case back to the district court, citing the recent Supreme Court ruling. South Bay United Pentecostal Church v. Newsom, 20-55533 (9th Cir., filed May 16, 2020).

"In light of the Supreme Court's orders in Harvest Rock Church Inc. v. Newsom, 2020 DJDAR 12946 (Dec. 3, 2020) and Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020), we vacate the district court's October 15, 2020 order denying the motion for injunctive relief filed by South Bay United Pentecostal Church (South Bay), and remand to the district court for further consideration of this matter," wrote Judges Kim M. Wardlaw, Richard R. Clifton and U.S. District of Massachusetts Judge Timothy S. Hillman, who was sitting by designation.

But in San Jose, Santa Clara County Superior Court Judge Peter H. Kirwan said the Supreme Court decisions had limits. Kirwan agreed with attorneys from the county that Calvary Chapel San Jose pastor Michael McClure should be held in contempt for defying orders limiting in-person gatherings. County of Santa Clara v. Calvary Chapel San Jose, 20CV372285 (Santa Clara Super. Ct., filed Oct. 27, 2020).

"I don't look forward to contempt hearings," Kirwan said near the end of the hour-long hearing. "I don't like them. But we do issue contempt orders for a purpose."

Lead Deputy County Counsel Melissa R. Kiniyalocts was a spectator for much of the hearing as Kirwan sparred with McClure's attorney about the meaning of the high court's orders.

"California's Blueprint for a Safer Economy is a dead letter," said Robert H. Tyler, president of Advocates for Faith & Freedom and managing partner at Tyler & Bursch LLP in Murrieta. "This court should not be looking at that and interpreting it to be valid."

This was a reference to the state's framework for emergency orders placing an ever-changing array of limits on normal activities. But Kirwan told Tyler he was taking an overly expansive view of the high court's rulings.

In the Diocese of Brooklyn case, Kirwan said the court found Gov. Andrew Cuomo's policies unfairly singled out religious gatherings for harsher treatment than other activities -- something he said was not at play in the current case. He also cited multiple declarations from public health officers and video and photographic evidence showing people attending services were not following health guidelines.

Tyler replied the church had posted signs encouraging people to follow safety guidelines but did not explicitly enforce them.

"Is a church going to tell someone, 'You can't come in here, you're not wearing a mask?'" Tyler asked. "This church has a unique philosophy that wants people to come as they are."

"It doesn't look like the encouragement is working," Kirwan replied. "The declarations clearly set forth that people aren't wearing masks, they aren't social distancing."

Tyler and Kirwan then clashed over whether asymptomatic people could spread the virus, whether the orders were properly applied to the 1,900-seat church, the effectiveness of health guidelines in stemming the pandemic, and whether the declarations by county officials were valid. Kirwan encouraged Tyler to subpoena the county's health officers if he wanted to question them, but added, "At least according to the county, there is some urgency to this hearing."

Kirwan did not specify the total amount he would force McClure to pay, but according to a news release from Tyler, his client could face jail time and nearly $800,000 in fines. Tyler told the judge he plans to appeal.