(CN) — The Calvary Chapel Church in San Jose urged a federal judge Thursday afternoon to block California and Santa Clara County’s Covid-19 restrictions so that its congregants can continue gathering to worship.
U.S. District Judge Beth Labson Freeman indicated in a hearing held via Zoom that she was unlikely to grant the request, although she acknowledged the tension between the right to worship and public health orders warranted such a hearing.
“I am inclined to deny the scope of the requested relief,” Labson Freeman said at the beginning of the hearing as she asked the plaintiffs to persuade her otherwise.
Calvary Church Pastor Mike McClure has captured national headlines for defying court orders to close his church, having been found in contempt by Santa Clara County Superior Court Judge Peter Kirwan last week for continuing to hold services despite county orders to cease.
“You have to follow either God or follow man, and I have to follow what God’s word says,” McClure said from the courthouse steps in downtown San Jose after he was charged.
His attorney, Mariah Rose Gondeiro, was in court Thursday, arguing that the recent Supreme Court decision that prevented states and local government entities from treating religious and secular institutions differently meant Calvary Chapel should be allowed to operate.
“The capacity restrictions as construed in California are unconstitutional,” Gondeiro said. “The Supreme Court ruled that the loss of First Amendment rights, even for temporary periods, constitutes harm.”
But Labson Freeman noted that the plaintiffs in the Supreme Court case, which included The Roman Catholic Diocese of Brooklyn, had a history of complying with public health orders, particularly as it related to mask-wearing and social distancing.
Robin Wall, the attorney arguing on behalf of Santa Clara County, took up the judge’s point when it came his turn to argue.
“Plaintiffs do not have a history of compliance,” he said. “They have flouted the rules at every opportunity.”
Perhaps the largest legal obstacle for the plaintiffs is jurisdiction. Given there is a pending state court case, where there are contempt charges among other things, Labson Freeman indicated it would be inappropriate for the federal courts to assert their sway in the matter.
“It’s clear that Judge Kirwan has given plaintiffs the opportunity and will continue to give them the opportunity to address constitutional issues before the court,” Labson Freeman said.
Santa Clara County initially filed a lawsuit in state court in reaction to continued defiance from the pastor, but the church then pursued a lawsuit in federal court.
Generally speaking, federal judges are loath to intercede into matters pending in state courts, although there are exceptions.
Labson Freeman said she wanted to get a full argument from both sides, considering the importance of the issues at the heart of the case.
“No one is suggesting that the issues aren’t very critical as you have the First Amendment issue of freedom of religion and free exercise and the public health crisis that we are now in,” Labson Freeman said.
Todd Grabarsky, arguing on behalf of the state, said the conditions of the pandemic mean it is critical that government entities are allowed to use their authority to prevent gatherings.
“There couldn’t be a worse time to enjoin the state’s orders,” Grabarsky said.
There were about 31,000 new cases of Covid-19 in California on Wednesday, according to the Covid-19 Tracker. It represents an approximately 120% increase in the two-week average.
There were 1,061 cases in Santa Clara County Wednesday, representing a 130% change in the two-week average. Five people died in Santa Clara County last week alone.
Wall argued that Calvary Church is not being regulated by the order, only gatherings at the church.
“Administrative functions at the church may continue, but what you can’t do is gather there,” Wall said.
Gondeiro said the church should be allowed to gather, particularly as there has not been a single case of Covid-19 linked to the services that have continued at the church in defiance of county orders.
“There continue to be gatherings at malls, stores and public transit,” she said.
Labson Freeman said she would rule on whether to grant the temporary restraining order by Monday.