Photograph by David Phillipich

Outdoor Sunday services at Horizon Church in Rancho Santa Fe.

Rancho Santa Fe attorney Paul Jonna maintains that Governor Gavin Newsom and county governments around California favored Black Lives Matter protests over churches when it came to how each of them was allowed to assemble. They allowed protesters to gather without a requirement of social distancing or wearing masks. But at the same time, they forbade churches to meet in their sanctuaries. Highlighting that “favoritism,” thought Jonna, might help win a legal battle for a 2500-member church in Los Angeles. Jonna has been in and out of court since the middle of August, defending the right of the church to meet in its sanctuary during the coronavirus pandemic.

Photograph by David Phillipich

Business law stands out as a special interest for Jonna. According to his bio on the website of LiMandri and Jonna, he’s been successful in such areas as securities and investment, insurance, consumer class actions, real estate, and malpractice.

So what lured Jonna to a different kind of case? “It’s the constitutional issue,” he says. “The government has no right to tell people how they can practice their faith.” Section 4 of the California state Constitution asserts: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed.” The words reflect those of the First Amendment to the U.S. Constitution forbidding Congress to prohibit “the free exercise” of religion.

On July 13 and 14, 2020, as the numbers of coronavirus cases were spiking, the county and city of Los Angeles, as well as the state of California, ordered all churches to stop holding worship services indoors. One of many churches in the county that chafed at the new restriction was Grace Community Church of the Valley. In a declaration filed in court, Pastor John MacArthur cooperated with the order until he felt the negative effects on his congregants were too great.

“The government has no right to tell people how they can practice their faith,” says Rancho Santa Fe attorney Paul Jonna.

Courtesy Paul Jonna

On Roscoe Boulevard in the Sun Valley section of Los Angeles, Grace Community Church has eight buildings, which includes the Master’s Seminary for preachers. According to the website Habit Stacker, John MacArthur is a “famous Calvinist” and a renowned preacher. “He appeared on the Larry King Live show many times as an evangelical Christian,” adds the site. “His net worth is over $14 million.”

On August 12, 2020, the Chicago-based Thomas More Society brought a lawsuit in Superior Court on behalf of Grace Community to force the county to lift its order to meet only outside. The society advertises itself as litigating to ensure “the free expression of religion in the public square.” For this suit, it hired Paul Jonna as special counsel.

Many feel that since businesses have to submit, churches should, too. But the Constitution, Jonna tells me, gives churches “heightened protection.” Said Judge James Chalfant, who heard the first phase of argument, “You cannot treat them as a hair salon.”

The U.S. Supreme Court ruled 5 to 4 that South Bay United Pentecostal Church in Chula Vista could not meet in its sanctuary after San Diego County demanded that it stay out.

Photograph by Matthew Suárez

The lawsuit unleashed a minor flurry of legal hearings. It was filed on a Wednesday. The next day, August 13, Los Angeles County filed its own motion to have the court stop the church from holding worship inside. Then, on Friday, Judge Chalfant, sitting in for Judge Mitchell Beckloff, took up both arguments and gave the church the permission it wanted until September 4, when the dispute would be heard for a ruling. He stipulated that, in the meantime, congregants maintain six feet of social distance from each other during the services, and wear masks. The church promised to cooperate. But on Saturday evening, August 15, at the urging of the county, the State Appeals Court instead required the church to conduct its services outside until the September 4 hearing.

The next morning, the church still met inside its sanctuary.

At the start of the legal maneuvering, Reverend MacArthur, in a declaration to the court, outlined his concerns. The “worship-bans” the church received, he wrote, require that members of the congregation meet “in parking lots, in parks, or beaches but never in any church … [and] we view it as a direct ban on engaging in the worship which our faith requires. The size of our congregation means that there is no place for it to meet outdoors…..”

The sanctuary, MacArthur maintained, is “a spiritual refuge for our congregants.”

The county and state prohibitions, he said, amounted to “criminalizing activity directly required by our faith. As a church, we have a moral and religious obligation to continue allowing our congregants to gather in our sanctuary to worship the Lord…. The utter unnecessary deprivation of all our people by completely shutting down the mutual love and care that sustains our people in all the exigencies, pressures and challenges of life, was cruel…. [And] when no one is sick. Our leaders and congregation see no real health threat to warrant such restraint.”

Jonna tells me that he challenged the county’s expert doctor to prove that Grace Community meeting inside its sanctuary is dangerous. “Our expert witness, Dr. George Delgado, paints quite a different picture,” says Jonna.

“Arbitrarily imposing restrictions on religious services,” Delgado wrote, “carries with it certain profound spiritual and psychological risks that, ironically, could … lead to an increase in mortality from covid-19 by negatively impacting immune function and by destabilizing the support systems of vulnerable people.”

The complaint Grace Community filed with the court specifically highlighted Delgado’s claim that “the ‘suicide pandemic’ is greater than the covid-19 pandemic. Suicides and drug deaths are exceeding those from the coronavirus.” Other sources have echoed the claim. San Diego television station KUSI reported on August 27, that for San Diego County at least, “fentanyl overdose deaths are increasing … during the covid-19 pandemic, with cases near triple the number compared with this time last year….” The report cited San Diego County’s Health and Human Services Agency as its source.

Could that mean churches should be placed in the category of “essential” services, every bit as much as food provision, construction, and other activities the state has so declared to prevent them from being locked down? “California has no … power to determine whether churches are essential,’’ argues Grace Community’s complaint. “[Our church] provides a spiritual service to the Los Angeles community that its congregation and its members rightly believe is essential.”

The complaint adds: “With deaths from the ‘Covid-19 suicide pandemic’ exceeding those from the actual coronavirus pandemic, Grace Community Church decided it would no longer sit by and watch its members and their children suffer from an absence of essential religious worship and instruction.”

Which brings us back to the issue of the government’s alleged favoritism. During the second day in court, as the government defended its demand that Grace Community not meet indoors, Jonna countered, “Where was the county when [the] protests were occurring? Why didn’t the county come in and seek injunctive relief to prevent these protests from taking place? There’s 100,000 people protesting side by side with no masks, [and] they didn’t do a thing. Instead, what they were doing was ... participating in the protests themselves — the board of supervisors, the mayor — encouraging people to participate….

“When many went to the streets to engage in ‘political’ or ‘peaceful’ protests purportedly against racism and police brutality, the protesters refused to comply with the pandemic restrictions. Instead of enforcing the public health orders, public officials were all too eager to grant a de facto exception for the favored protesters.

“The same public officials even encouraged these protesters to ‘express’ their ‘rage’ so the public could ‘hear it ….’ And whereas the general public was required to wear masks whenever they went out in public, protesters and rioters were often given a pass by officials.”

But Amnon Siegel, the county’s attorney, maintained that police did their best to control the Black Lives Matter protests.

Transcripts of courtroom discussion seem to show Judge Chalfant reasoning back and forth out loud to reach a decision. On the one hand, “it gives me pause that 2500 people are sitting [in church] shoulder to shoulder without masks and singing hymns.”

Then, in the next moment, “I’d be more interested with respect to the Black Lives Matter issue as to whether these were permitted protests, protests authorized by the county or city of Los Angeles, or were they simply spontaneous. It’s pretty hard to control a spontaneous protest. On the other hand, if [the protesters] had a permit, that’s a problem for the county. If so, what were the conditions of the permit?”

September 4 came and went without a decision. Paul Jonna felt the hearing went well but was “very long.” The appeals court had said the case needed a thorough discussion since there were “complex legal issues” involved. Judge Mitchell Beckloff, who by now had returned to the bench, said he’d have a decision sometime the following week.

Meanwhile, it came to my attention that, in a seemingly relevant case, the U.S. Supreme Court ruled 5 to 4 that South Bay United Pentecostal Church in Chula Vista could not meet in its sanctuary after San Diego County demanded that it stay out. Chief Justice John Roberts, on May 29, wrote the court’s majority opinion.

In part, the opinion reads: “Our Constitution principally entrusts ‘the safety and health of the people’ to the politically accountable officials of the States ….’”

Regarding the specific restriction San Diego County placed on the Chula Vista church, Roberts wrote: “The notion that it’s ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”

“Wouldn’t that control the decision in Grace Community’s lawsuit?” I asked Jonna. “I worked on that [Chula Vista] case, too,” he told me. “But it involved an emergency injunction. So the legal issues were not the same as in the current case.”

Finally, on August 10, Judge Beckloff issued a preliminary injunction forbidding Grace Community Church to hold services inside its sanctuary. “The function of a preliminary injunction,” wrote Beckloff, “is the preservation of the status quo [in this case, the county’s original order not to meet inside] until a final determination of the merits.”

So a final resolution still awaits, although the preliminary injunction is sure to carry weight. In explanation of his decision, Beckloff appealed to the reasoning of Chief Justice Roberts in the South Bay Pentecostal Church case. Public health officials, concluded Roberts, must have broad latitude “when confronting situations involving scientific uncertainty.”

Beckloff addressed potential objections to his decision based on the California State Constitution, which contains, in addition to its reference to the “free exercise and enjoyment of religion” a contiguous statement that: “This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State.”

Additionally, Beckloff cast doubt on Grace Community Church’s providing an “essential service” by asserting that its expert witnesses did not identify sources for a “suicide pandemic” that is greater than that of covid-19.

And the judge made virtually no reference to the government favoring Black Lives Matter protesters over churches.

The decisive issue for Beckloff appears in a section of his opinion he titles “Balance of Harms.” “The County Health Order allows worship to occur outdoors…. This feature of the [order] mitigates — but certainly does not eliminate — the harm that will be suffered by the Church’s congregants through restricting their indoor worship.

“The court finds the balance of harms tips in favor of the county. The potential consequences of community spread of covid-19 and concomitant risk of death to members of the community — associated and unassociated with the church — outweighs the harm that flows from the restriction on indoor worship caused by the County Health Order.”

The following Sunday, Paul Jonna tells me, Pastor MacArthur gathered his flock in the church sanctuary. In response, Los Angeles County tried to hold him in contempt. But the court denied the motion. “We believe that the preliminary injunction was unconstitutional,” says Jonna, “and the court deferred hearing the issue until November 13. Once it’s decided, the court can rule on the county’s attempt to hold MacArthur in contempt. There will be no decision until early next year.”