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A Santa Clara County judge issued a temporary restraining order Monday against Calvary Chapel San Jose preventing the church from conducting indoor services in excess of a hundred people or outdoor services in excess of two hundred.

The ruling is the latest development in a running dispute between the church and county health officials over the application of county Covid-related health restrictions to public gatherings for religious worship.

In a separate case filed in June and currently pending in federal court in San Jose, the church is suing Dr. Sara Cody, Santa Clara County Public Health Officer, and several county officials, seeking to enjoin them on First Amendment grounds from applying the county’s covid restrictions to the church. In that case, the federal court has scheduled a hearing on Nov. 5 on the county’s motion to dismiss the matter.

Both disputes turn on the same issue. Dr. Cody has issued a series of health orders in response to the pandemic. For nearly seven months beginning in March, no indoor gatherings were permitted in Santa Clara County, according to the county’s court filing. In the most recent iteration of the order, effective October 13, indoor gatherings are allowed but only up to the lesser of a hundred people or 25 percent of capacity. Two hundred people may gather in an outdoor setting.

The church has an indoor capacity of 600 people and has been holding indoor services since May 31 without limiting the number of people in attendance, according to the filings in the case. The church does not believe the county’s health orders are constitutional, citing their infringement on the right of the church and its members to the free exercise of religion under the First Amendment.

Google Maps The Calvary Chapel San Jose was issued a temporary restraining order Monday, November 2, 2020 by a Santa Clara County judge in a legal battle over the church’s ongoing indoor worship services beyond the limits of what’s permitted under the local Covid-19 health orders.

Because the church has “chosen to flagrantly and repeatedly violate the orders,” the county “began serving weekly notices of violation… and has fined the Defendants hundreds of thousands of dollars,” according to the county’s filing.

The county alleges that the defendants “continue to flout the orders,” and that continued gatherings run the risk of “serious illness and death for Defendants’ congregants and the broader community.”

According to the county:

“It is only a matter of time – if it has not happened already – before Defendants’ conduct will lead to a significant Covid-19 outbreak.”

Lawyers for the church vehemently disagreed. According to the church’s filings:

“The virus, by all scientific measures, is no worse than the season(al) flu.” Moreover, the church alleges that the county has “supported super spreader events like protests in the streets.”

The church maintains that there is no suitable option for outside worship and in the time since May 31, the church has not experienced any known Covid-19 case. However, the Church claims it has experienced significant increase in spiritual and mental distress, including people who are suffering from “anxiety, depression, and even thoughts of suicide.”

While the church asserts a number of arguments, its central contention is that the right to worship is a protected First Amendment right. While First Amendment rights may have to give way in the face of compelling health threats, the government cannot impose harsher restrictions on worship than on other forms of protected speech. The church alleges that the county has declined to apply the health orders against protesters exercising free speech rights and therefore cannot do so against the church without violating the U.S. Constitution.

In issuing the temporary restraining order, Santa Clara Superior Court Judge Peter H. Kirwin disagreed with the church. He found that:

“[T]here is an immediate threat to public health and safety…and the conduct of Defendants violates…orders aimed at abating the pandemic.”

The court said:

“(Those violations) present a grave risk and immediate threat to public health, including the risk of serious illness and death.”

Based on those findings, the court entered an injunction to block large gatherings at the church until a further hearing on Dec. 1. The court further authorized county personnel, including the Santa Clara Sheriff’s Office, to “enter onto the (church property) to monitor and ensure compliance with this Order… at any time services or gatherings are held….”

The issues in this dispute are not the first to arise in California. In September, a Los Angeles federal court considered a challenge by a place of worship to a similar restriction imposed by the state of California and approved the restriction against a First Amendment challenge. The plaintiffs in that case asked the U.S. Court of Appeals for the 9th Circuit to suspend the ruling pending appeal.

A divided panel of that court rejected the request for a stay on grounds that the restrictions on worship were based on the health risks of group activity and were similar to restrictions placed on other indoor non-religious activities in the same counties, such as lectures, movie theaters, concerts and sporting events.

The dissenting judge in that case said that believed that neutral regulation of religious worship to combat a serious danger to public health would be appropriate, but he added:

“[T]he Constitution, emphatically, does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities.”

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