Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Covid

Covid-restrictions on churches likely unconstitutional where secular establishes are exempted, says Cal. Court of Appeal

A trial court hit Calvary Chapel with over $30,000 in sanctions for violating court injunctions that required the church to comply with local Covid restrictions. The church steadfastly refused to enforce the state and local rules that imposed capacity limitations on indoor gatherings, and that required face masks and the submission of a social-distancing protocol. The court enjoined the church to follow the protocols, on pain of daily sanctions.

The church petitioned the Court of Appeal for review from the contempt orders. And in People v. Calvary Chapel San Jose (D6 Aug. 15, 2022 No. H048708) 82 Cal.App.5th 235, the Sixth District agreed with the church.

The Court of Appeal held that the capacity restriction could not satisfy strict scrutiny, because the restriction exempted secular activities like bus stations, airports, grocery stores, restaurants, office buildings, and retail stores. “We are mindful,” said the Sixth District, “that in Tandon, the Supreme Court stated that “at-home religious exercise” was comparable for purposes of the Free Exercise Clause to “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants.” [Citation.]”

In fact, the prosecution did even not dispute that the capacity limitations could satisfy strict scrutiny review.

Takeaway:

If you are interested in how the U.S. Supreme Court has dealt with church challenges to Covid restrictions, the Sixth District Court of Appeal provides a good summary.

In short, the courts must be very suspicious where Covid restrictions are enforced as against churches but exempted as against secular establishments. The Constitution assumes that churches are treated as out-groups, and exemptions raise the specter of favorable treatment toward in-groups. This obliterates the Employment Division v. Smith rule that religions organizations are subject to generally-applicable rules, and restores the pre-Smith strict-scrutiny analysis.

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