Law experts interpret SJ church’s appeals court win: Had local gov’t overreached?
From 2020–2021, San Jose church Calvary Chapel was slapped with record-high fines for disobeying SCC’s COVID mandates. Recently, the local appeals court dropped over $200,000 in Calvary’s fines, calling the contempt-of-court charges “unconstitutional.” Opp Now spoke with several Californian attorneys—including Calvary’s own—about what this case means for the government–community relationship, and discovered a complex legal thicket. To receive daily updates of new Opp Now stories, click here.
Leslie Gielow Jacobs, Anthony Kennedy Professor of Law, McGeorge School of Law:
This is a complex case, but here’s the bottom line: Way back in England, the courts developed “contempt of court” to remedy disobedience of their orders and preserve their authority. This power and the reason for it continues today. As a general rule, when a court issues an order against you, you can’t just violate it, even if it’s debatable. You have to appeal it and argue there that it’s not valid.
So what happened in this case is that the trial court issued orders against Calvary Chapel because it was violating public health rules. Initially, the court issued a series of orders saying, “Don’t violate the health rules.” Then, the church violated them, so as a next step, the government obtained contempt sanctions against it in December of 2020 and February of 2021. Procedurally, it all made sense. It was all appropriate.
What prompted this appeals court ruling was a change in law at the Supreme Court level. Most basically, the court looked at Supreme Court law as it exists now and labeled the orders void and unenforceable and reversed the order to pay contempt sanctions. This could be read to imply that the trial court did something wrong. But it did not.
My concern is timing. When the court issued its orders—and when Calvary Chapel violated them—the Supreme Court hadn’t yet clearly changed the meaning of the Constitution (specifically the free exercise of religion clause). Initially, the Supreme Court had refused to stop California’s covid restrictions on religious practice, finding them likely constitutional, and then, with the switch of Justice Barrett for Justice Ginsberg, it began changing its rulings. But what the new meaning of free exercise would be was not clear, and the rulings were emergency orders, not final judgments, so whether and how they changed constitutional meaning for future cases was not certain. Thus, there wasn’t any overreach by the trial court when it issued the orders or awarded the contempt sanctions.
The appellate court has discretion to annul the orders of contempt and reverse the orders to pay monetary sanctions in light of the change that has occurred in the meaning of the constitutional right on which the underlying orders were based. This does not mean that the trial court was at fault for not being able to predict what the Supreme Court justices were going to do.
Robert H. Tyler, Advocates for Faith & Freedom* President and Attorney:
This was a critical battle to win in the much larger conflict over governmental overreach.
If churches in California did not take a stand to reopen as of the Day of Pentecost 2020, churches may still have been closed today. It takes the courage of pastors like Mike McClure to stand against dark forces who would love to see religious liberty restricted. Pastors led during the revolutionary war, led to free the slaves, and are leading today in the stand for liberty. But not for liberties sake alone, but for the right to spread the Gospel when the country needs it most.
The win we received in the court of appeal yesterday validates the actions of Pastor Mike McClure and other pastors across this country who felt called by the God to continue their calling even when the government was telling them to stay home because they were not essential. Many people had no other place to turn except the local church when they were desperate for connection during the lockdowns.
We are so pleased to have helped pastors like Mike McClure, Rob McCoy, and so many more, fulfill God's calling on their ministries. But our challenges are not over for CCSJ. We are still in Federal Court battling against $3.8 million dollars of illegal fines issued by the County of Santa Clara.
*Editor’s note: Advocates for Faith & Freedom has represented Calvary Chapel in this case.
Nomi M. Stolzenberg, University of Southern California Nathan and Lilly Shapell Chair in Law, Religion and Law Scholar:
At the time that these cases were first filed, the established doctrine concerning how to tell if a regulation violates the Free Exercise Clause held that restrictions on the exercise of religion do not violate the Free Exercise Clause if activities are restricted without regard to their religious or secular character. In other words, so long as religiously-motivated activities were not being singled out for prohibition or restriction, and secularly motivated and religiously-motivated activities were treated alike, the regulation would be deemed to be “neutral” and “generally applicable” and, as such, would not be subject to “strict scrutiny.” Under this lenient standard, it was very difficult to conclude that enforcing the challenged covid regulations against churches violated the free exercise clause.
But then the Court changed the doctrine. The replacement of Ruth Bader Ginsburg by Amy Coney Barrett changed the balance of power on the Court regarding different schools of thought about how to interpret the free exercise clause. One school subscribes to the doctrine described above, according to which a regulation that is “neutral and generally applicable” does not violate the free exercise clause even if it has the unintended effect of burdening the free exercise of religion. It is worth noting that this doctrine, which is vociferously opposed by most conservatives—including Justices Thomas, Alito, Kavanaugh, Gorsuch and Barrett—was established in a Supreme Court decision called Employment Division v. Smith, authored by none other than Justice Scalia. So it would be a mistake to characterize Smith as a liberal decision.
Indeed, the Smith doctrine was initially objected both by liberal civil libertarians and religious conservatives, producing the coalition which supported the passage of the Religious Freedom Restoration Act (“RFRA”). Only a small minority of conservatives (e.g., Scalia) and a small minority of liberals favored the Smith doctrine when it was first handed down. The majority of conservatives and liberals preferred the earlier “Sherbert doctrine,” according to which laws that substantially burden the free exercise of religion trigger strict scrutiny and are unconstitutional absent a compelling state interest that can’t be achieved through less restrictive means even if the law is neutral and generally applicable. Over time, however, many liberals and progressives, who used to support overruling Smith and returning to the Sherbert doctrine, changed their view, as it became apparent that the Sherbert doctrine could be used to carve out religious exemptions from civil rights laws and other regulations that protect important rights, like access to contraception. Meanwhile, conservative voices in favor of Smith have now disappeared. When Coney Barrett replaced Ginsburg, there was no longer a 5:4 majority in favor of continuing to adhere to the Smith doctrine.
Still, the Court has not yet gone all the way in getting rid of Smith, largely because of hesitations expressed by Coney Barrett. In the face of that hesitation, the conservative Justices have resorted to a highly convoluted reinterpretation of the Smith doctrine, according to which a regulation is presumptively deemed to be “discriminatory” against religion (and violative of the right to the free exercise of religion) if any secular activity or enterprise is exempted from the regulation. The Court said that the restrictions on religious activities would only be deemed to be presumptively religiously discriminatory and unconstitutional if comparable secular activities were exempted. But if the Court really meant what it said, then it would be possible to argue that the secular activities exempted from covid regulations (e.g., grocery shopping) are not comparable (because the risks are lower). Indeed, this is exactly what the state courts had argued in the Calvary Church cases. But the Supreme Court simply rejected this account of the facts, insisting that the exempted secular activities are comparable to the religious activities, notwithstanding scientific evidence to the contrary. With the Supreme Court having decreed that the secular activities exempted from the covid regulations are comparable to the religious activities for which constitutional protection is sought, the lower courts have no choice but to go along with that ruling, even if it is factually false.
Many people, in particular, religious and economic conservatives, view religious exemptions as a libertarian principle and applaud the Supreme Court’s recent decisions denying states the right to enforce covid regulations as a vindication of the libertarian “right to be let alone,” free from government regulation. In this they are sorely mistaken.
Just as there is no such thing as a free lunch, there is no such thing as a cost-free religious exemption. The point is vividly borne out by religious exemptions from covid regulations. Every time an individual or group succeeds in escaping from the duty to adhere to covid regulations, that has the effect of subjecting other individuals and society at large to significant social costs. Church members attending church in defiance of restrictions spread covid to people who didn’t attend the church gathering and had no choice about whether or not to take that risk. Employees who refuse to get vaccinated infect coworkers and customers. Employers face potential lawsuits from employees who feel endangered by their unvaccinated employees in addition to having to contend with a sick workforce. And society at large bears the costs of religious exemptions in the form of overwhelmed hospitals and emergency, labor shortages, and mass illness and death.
In addition to all of these social costs with which we are now so sadly familiar, there are huge administrative costs. Granting religious exemptions is an inherently administrative practice. It requires an administrative apparatus, a body of decisionmakers whose task it is to make all kinds of difficult and intrusive decisions about whether people’s claims to have religious objections are really based on religious beliefs and whether their claims are sincere. When the number of claims to religious exemptions are small and the social costs of granting them are negligible, the powers that be may decide to dispense with any administrative apparatus and simply grant requests for religious exemptions on demand. That lends the appearance of a self-executing, costless right. But this is an illusion which disappears as soon as the costs and the demand for religious exemptions scale up, which is exactly what has happened in the pandemic. All of this puts the lie to the idea that religious liberty is a libertarian right which limits the power of government and has no effect on others. To the contrary, religious exemptions impose significant social costs and entail a potentially large-scale regulatory apparatus.
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This article is part of an exclusive Opp Now series.
In the first article, Californian law experts dissect the appeals court win of SJ’s Calvary Chapel, through which over $200,000 in COVID-related fines were dropped for being “unconstitutional.”
The second article features commentary from the Pacific Legal Foundation on local government overreach during the recent pandemic.