Grace Under LawMichael D. Peabody January/February 2021
When California governor Gavin Newsom first ordered churches closed down to “flatten the curve” and prevent the spread of COVID-19, Grace Community Church in Sun Valley, California, initially volunteered to abide by the order and only hold virtual services. The church wanted to live at peace with government authorities. Its pastor even cited the apostle Paul’s instruction to obey civil authorities.
However, as it became clearer that churches would be required to close indefinitely, for months or longer, the Grace Community Church elders, led by Pastor John MacArthur, voted unanimously to reopen. They believed that church was essential, and the state requirements were simply unworkable with their large congregation.
Those orders prohibited indoor meetings of any kind. Only the preregistered might step onto church property, and only for scheduled events. All were to be screened, and temperatures had to be taken. Six feet away from anybody else is the standard, and every other parking spot needed to be vacant. Restrooms had to be monitored to make sure only one person was inside. No hymnbooks. No communion. Disposable seat covers had to be changed between services. And services had to be shorter. At maximum an outdoor, socially distanced tent can hold 350 to 400 people. All who had been in proximity with anyone outside their family who might have COVID-19 would be required to self-quarantine for two weeks.1
When John MacArthur, the 81-year-old pastor of a large congregation read these restrictions, he said, “Obviously this is not constitutional, and more important, it goes against the will of the Lord. He calls us together.”
Founded in 1956, Grace Community Church is a nondenominational 8,000-member congregation on the northeast side of Los Angeles. The church asserted that a church operates separately from government control. In a statement released July 24, 2020, the elders wrote, “Christ is Lord of all. He is the one true head of the church. He is also King of kings—sovereign over every earthly authority. Grace Community Church has always stood immovably on those biblical principles. As His people, we are subject to His will and commands as revealed in Scripture. Therefore, we cannot and will not acquiesce to a government-imposed moratorium on our weekly congregational worship or other regular corporate gatherings. Compliance would be disobedience to our Lord’s clear commands.”
The County of Los Angeles responded by threatening the church, and MacArthur, with a daily fine of $1,000 or arrest. The church hired attorneys from the Thomas Moore Society to defend their position, and attorney Jenna Ellis responded that “Grace Community Church has every right to assemble without impossible and unreasonable infringement from the state, and the state has absolutely no power to impose the restrictions it is demanding. Church is essential, and the government has no power to arbitrate whether religious organizations are essential. This is not about health and safety; it is about targeting churches.”
The church filed a lawsuit against the state of California and the local county and city governments. The complaint argued that the church was being treated differently from other groups that had met to protest racism and police brutality. The suit claimed that the public health orders were not enforced and that government officials had granted a “de facto” exception for the “favored protesters.”
On August 9 the church reopened, and MacArthur welcomed parishioners to “the Grace Community Church peaceful protest.”
The county did not give up so easily. The fight escalated to the point where the county revoked the 45-year-old lease of a church parking lot on adjacent property.
The litigation went back and forth, and at one point a superior court judge ruled that the county had a burden of showing why they should be able to infringe on the church’s right to worship. The court ruled that the church could meet indoors so long as people used masks and observed social distancing.
The county did not relent, and demanded that the court issue a contempt order against the church; but the church argued that the issue of the constitutionality of the no-meet orders needed to be determined before contempt proceedings could begin. In a press release the church’s attorney, Jenna Ellis, said, “It’s tyranny to even suggest that a government action cannot be challenged and must be obeyed without question.”
As of this writing, the church is continuing to meet; without face masks and no special social distancing. In ignoring these two rather commonsense requirements, that would not compromise religious freedom and rather tend to safeguard health, the church is also acting on a view that the pandemic is exaggerated and that little risk exists. It may be the weakness of their position.
Some may think it is fatalism that MacArthur and his congregation meet despite the shutdown orders, and despite specific enforcement action brought against the congregation by Los Angeles County. The county is the most populous county in the United States, with more than 10 million inhabitants in a state of 39.5 million. As of September 22, 2020, 15,203 Californians, or 0.03 percent of the state’s population, had died, with 6,401 of them in Los Angeles County.
Although COVID-19 deaths are significant, the problem of the costs associated with sickness continued to prevail.
MacArthur and his attorneys have stood firm on the idea that not only was the enforcement unreasonable—it also represents a significant departure from church-state separation.
In July 2020 the Supreme Court ruled 5-4 against a Nevada church’s request to strike down Nevada’s 50-person limit on worship service attendance. Justices Alito, Kavanaugh, Thomas, and Gorsuch vehemently disagreed with the majority’s position on the subject.
Wrote Gorsuch: “This is a simple case. Under the governor’s edict, a 10-screen ‘multiplex’ may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here, and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all.”
Gorsuch continued: “In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.”2
Gorsuch’s opinion is interesting; but it places the church at the same level of privilege as other businesses and relies on a discrimination standard to reach its conclusion. But as Justice Kavanaugh noted in his concurrent dissent in Sisolak, there is a two-step inquiry to religious claims against secular claims. The first step is whether the law creates “a favored or exempt class of organizations and, if so, do religious organizations fall outside of that class?” If religious organizations are not favored, “the second question is whether the government has provided sufficient justification for the differential treatment and disfavoring of religion.”
Religion cannot be relegated to a second-tier status below secular organizations. In many places in California, restaurants and stores were open, while authorities did not describe churches as “essential.”
The concept of the essentiality of congregational gatherings has come under direct scrutiny. Many pastors and congregational boards recognized the risks of gathering and decided to go online exclusively. At first it seemed a weeks-long attempt to “flatten the curve,” but months later it seems permanent. During times of national calamity, people often seek out the fellowship of other believers to provide spiritual clarity. Yet during the pandemic, with attendant economic and social issues, churches were physically closed, leaving many of the most vulnerable to grapple alone with their problems and fears.
Some church leaders tried to argue that perhaps meeting in a church was not all that essential after all. The early church facing Roman persecution did not meet in a building, and churches in Communist countries famously met “underground.” Why not volunteer for this kind of experience? Catholics wondered whether there was a need to partake in the Eucharist. Parents wondered if all their effort in taking their children to church had been worthwhile when it was just a click away. If meeting together during times of extreme stress is not essential, why would it suddenly become more “essential” in times of peace and good health?
While people will eventually seek out restaurants and gyms when all this is over, churches that have rolled over and allowed themselves to be shelved and labeled “nonessential” by overreaching authorities may find that their congregants will leave them on the shelves.
It is here where Grace Community Church and several others that took the risk to remain open shine. Instead of rolling over and allowing authorities to label it “nonessential,” they stayed open. John MacArthur stood up in front, under threat of arrest and fine, and welcomed the congregation to worship. Amid scenes of social unrest outside and threats of violence, the church filled with thousands of attendees, all aware that there was a risk but also of the need to meet, and the songs of hymns rose to the rafters. It may seem foolish or even dangerous, but if no churches stood up and affirmed the fact that they matter, all churches that remain quiet would run the risk of sinking into obscurity.
“We’re under the authority of the Lord Jesus Christ, and He says to have church, and we will,” MacArthur told CNN on September 10, 2020, soon after the church was denied an injunction that would have allowed services to continue legally.3
Grace Community Church is hardly alone in resisting the orders to hold services outdoors with minimal attendance. In the northern California city of Santa Clara, North Valley Baptist Church finally gave up on indoor services after the county fined the congregation $112,000. The church announced they would be meeting outdoors in line with guidelines, and the county has refused to release the fines.4
In Newbury Park, California, Ventura County fined Godspeak Calvary Chapel $3,000 for holding services in violation of local orders. As of this writing, the congregation continues to meet openly and litigate.
Enforcement has been uneven—protesting social injustice has not been prosecuted, as it is a right to assemble issue. But churches, even those who claim to be holding “protest services,” have not been afforded a similar right.
The law has previously recognized that some religious practices that may seem antithetical to health and safety rules, and that propose a statistically more significant danger than COVID-19, are permitted because the state does not interfere with the church without good cause. Examples include Jehovah’s Witnesses, who do not believe in blood transfusions; Christian Scientists, who do not go to doctors; and even ritualistic poisonous snake handlin.g
COVID-19 is a highly unusual situation in which large churches that have been well regarded in their communities have been placed at odds with local governments. Because of the nature of COVID-19 there is an increased risk, particularly if churches decide to ignore masks and social distancing recommendations. In a very few highly publicized cases, even churches that followed restrictions have experienced outbreaks and some deaths.
If churches agree that they should close down now, shutdowns will inevitably happen over and over as new issues arise in which there is a hint of “emergency.” Rather than having a recognized autonomy, secured by a strong wall separating church from the government, churches that submit without question may create a precedent that lowers the level of protection for religion. In legal terms, instead of the state having to show a compelling governmental interest in shutting down churches, they may instead only have to offer some rational basis for doing so. This could have broad-reaching implications. For instance, there has been a decrease in pollution as a result of the stay-at-home order. A state could make a decision that for the sake of the environment, nonessential work should cease one Saturday or Sunday a month. Churches that agreed in 2020 that it is “just as good to meet online” during COVID-19 could find themselves among the ranks of the nonessential during the new “environmental crisis,” and face fines if they met.
Churches have a constitutional right under the free exercise clause to govern their affairs unless there is a compelling governmental interest in a specific issue, and those interventions must be very narrowly defined to resolve the issue. When churches give the keys to their doors to the government and allow the government to decide if and when they can open, they’ve surrendered themselves to the state. It will be tough to get those keys back. So far the sanctions are only financial, but pastors who refuse to compromise and continue to hold worship services as they did before the pandemic might find themselves in handcuffs. This type of overreach is precisely why the Founders recognized the value of keeping church and state separate.
1 “COVID-19 Industry Guidance: Places of Worship and Providers of Religious Services and Cultural Ceremonies,” https://files.covid19.ca.gov/pdf/guidance-places-of-worship.pdf, retrieved September 22, 2020.
2 Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. ___ (2020); https://www.supremecourt.gov/opinions/19pdf/19a1070_08l1.pdf, retrieved September 22, 2020.
3 See https://www.youtube.com/watch?v=YTdcR-y3x90&feature=youtu.be, retrieved September 22, 2020.
4 “Calif. Pastor Moves Worship Outdoors After County Fines Church $112k for Indoor Services,” Christian Post, https://www.christianpost.com/news/calif-pastor-moves-worship-outdoors-after-county-fines-church-112k-for-indoor-services.html, retrieved September 22, 2020.
Article Author: Michael D. Peabody
Michael D. Peabody is an attorney in Los Angeles, California. He has practiced in the fields of workers compensation and employment law, including workplace discrimination and wrongful termination. He is a frequent contributor to Liberty magazine and editsReligiousLiberty.TV, an independent website dedicated to celebrating liberty of conscience. Mr. Peabody is a favorite guest on Liberty’s weekly radio show, “Lifequest Liberty.”