Demand for Immediate Rescission of April 6, 2020 Amended Order of the Mendocino County Health Officer

Dear Mendocino County Supervisors and Dr. Doohan:

In conjunction with the National Center for Law and Policy and Advocates for Faith & Freedom, our law firm has been retained by faith leaders in Mendocino County (“County”), including Pastor Kevin Green of Calvary Chapel Fort Bragg and Pastor Les Boek regarding the County’s adoption and enforcement of the April 10, 2020 Order of the Mendocino County Health Officer (“Order”) concerning COVID-19 limitations on religious practices.

On behalf of our clients, we must first acknowledge the significant efforts you have made to protect the health and safety of the residents in Mendocino County. We are informed that there are no COVID-19 infections or reported deaths in your County. Your efforts are appreciated, and we believe you had the best interests of Mendocino residents in mind when you implemented the current coronavirus restrictions. However, in addition to our clients’ desire to be good citizens and their concerns over the coronavirus, they have serious concerns about preserving their fundamental liberties enshrined in the U.S. and State Constitutions.

In times of national crisis, we should reflect upon our founding documents and the concerns of our forefathers when establishing our democratic republic. The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness. (emphasis added.)

James Madison once said, “All power is originally vested in, and consequently derived from, the people.” And Thomas Jefferson said, “Governments are instituted among men, deriving their just powers from the consent of the governed.” Our founding fathers did not intend to allow a single individual to establish law that permits the infringement upon individual liberties recognized in the Constitution. 1

Our client is convinced that “we the people” are ultimately responsible to protect the individual liberties that may be lost unnecessarily during times of crisis regardless of whether public officials’ actions are well intentioned. With you, we struggle with finding the right balance of public safety and individual liberty considering the coronavirus. It is for these reasons that our firm is representing the public’s interest in preserving individual liberties and serving as a counterbalance to unchecked regulatory action.

As explained below, the Order violates the Religious Land Use and Institutionalized Person’s Act and the First Amendment of the United States Constitution. Accordingly, we ask that the County immediately rescind the unlawful portions of the Order and notify our office and the public of the rescission by 5:00 p.m. on April 21, 2020. If the County fails to do so, we are prepared to file a lawsuit and seek immediate injunctive relief.

Factual Background

The Order of the County prohibits churches from recording or live-streaming involving “singing or use of wind instruments, harmonicas, or other instruments that could spread COVID- 19 through projected droplets [] unless the recording of the event is done at one's residence, and involving only the members of one’s household or living unit.” According to the order, if one person were to live-steam themselves singing in a church, it would be “a misdemeanor punishable by fine, imprisonment, or both.” This order was issued on Friday, April 10, right before Easter Sunday.

Both Pastors Kevin Green and Pastor Les Boek have held, and intend on continuing to hold, live-steam services in their churches involving worship music. Signing of praise and worship songs to God during their live-stream services is integral to their faith.

The pastors have carried out their worship in a manner that respects the current social distancing restrictions and the health and safety of the community. Pastor Green’s live-stream services involve a total of three church personnel at his 13,500 sq. ft. church that can legally seat 320 people. He sings and plays guitar in the sanctuary along with a sound engineer who is approximately 60 feet away in the sanctuary. There is also one security guard outside the sanctuary, in the lobby. According to the Order, Pastor Green could be arrested for this. Despite his previous communications with the County, the continues to maintain this restriction.

Pastor Boek likewise sings and plays the guitar during his live-stream services on Sunday mornings. There are only two others present: a camera person and an individual that helps with the streaming. All three of them remain at least 10 feet apart during the live-stream. In addition to being a pastor, Pastor Boek is a phlebotomist who has been on the front lines during this pandemic.

Both pastors hold a sincere religious belief that the Bible calls them to worship God through singing and worship music at their regular Sunday worship service. The County’s Order places the pastors in the position of violating the order based on their religious beliefs.

Legal Argument

The County’s Order violates both the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and the First Amendment of the United States Constitution because the Order is not narrowly tailored to serve the County’s interest in preventing the spread of Coronavirus.

 1.  RLUIPA

RLUIPA was passed unanimously by Congress in 2000. Congress considered the right to assemble together for worship at a physical location to be the very core of the free exercise of religion.2 In particular, the Substantial Burden prong of RLUIPA provides that a government may not impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a religious assembly or institution.3 The only exception is if the government is able to show the imposition of the substantial burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 4 RLUIPA explicitly requires courts to construe the statute “in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.”5

Here, the County effectively implemented a land-use restriction when it barred religious institutions from signing worship songs on their properties. There is no question that the County has a compelling interest is containing this pandemic. However, the Order does not impose the least restrictive means to advance the County’s interest in preventing the spread of coronavirus.

The Order is overbroad because it makes no exceptions for religious institutions taking extensive protective measures, such as performing worship services in which participants practice CDC guidelines and are separated by more than six feet. Both pastors are taking measures that exceed the CDC guidelines. The Order prohibits singing in a church even if there was only one- person present.

Moreover, the rate of Coronavirus cases in Mendocino County does not justify the draconian measures taken by the County outlawing singing in churches. 6 If the situation in Mendocino were as dire as the peak of pandemic in New York, an argument (though far-fetched still) may be made for some restrictions. However, that is not the case here. The ban imposed on religious gatherings is simply more restrictive than necessary. There is no legitimate reason why a worship band singing in a church and practicing social distancing, or even a single, solitary worship singer complying with CDC guidelines poses a threat to public safety. This is especially true because there are no existing cases of COVID-19 in the Mendocino County.

The Order is overbroad and not justified by the numbers. The Order, therefore, violates RLUIPA as it does not impose the least restrictive means of furthering the County’s interest.

2.  FIRST AMENDMENT

The First Amendment to the U.S. Constitution prohibits government actors from enforcing any “law respecting an establishment of religion, or prohibiting the free exercise thereof.”7 The First Amendment, as written and as interpreted, robustly guarantees and protects the freedom of speech (which includes religious speech), free exercise of religion and freedom of assembly of all American citizens. “When faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some ‘real or substantial relation’ to the public health crisis and are not ‘beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’” 8 The U.S. Supreme Court has not lightly dismissed civil rights violations by governmental agencies in these circumstances, but has held that “a violation of an individual’s constitutional rights, even for minimal amounts of time, results in irreparable injury.” 9

On April 11, 2020, a Federal judge from the United States District Court for the Western District of Kentucky granted a temporary restraining order in a case far less restrictive to the one at hand. (This judicial opinion is attached for your reference.) That case involved a church that desired to hold a drive-in church service. The judge explained that the ban on religious assemblies violated the Free Exercise Clause “beyond all question.” 10

The court reasoned that the law was not neutral between religious and non-religious conduct, because while it prohibited drive-in church services, it has not “prohibited parking in parking lots more broadly – including, [] the parking lots of liquor stores.” 11 The court reasoned that “if beer is ‘essential,’ so is Easter” drive-in church. 12 As a result, the court held that the regulation was unconstitutionally overbroad and under-inclusive.

In fact, Attorney General William Barr filed a Statement of Interest in this Kentucky case on behalf of the United States Department of Justice and in support of the Church. In agreeing with the court’s decision, Attorney General Barr stated that despite the pandemic, “religion and religious worship continue to be central to the lives of millions of Americans.” 13

Here, banning singing worship at a church through live-stream is far more restrictive than banning drive-in church services. Worship is essential for a live-stream service, and it cannot be prohibited by the County under these circumstances.