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

Dear Riverside County Supervisors and Dr. Kaiser:

As you may know from our letter dated April 3, 2020, our office represents Pastor Tim Thompson and 412 Church of Murrieta (the “Church”). The previous letter requested reconsideration of the County of Riverside and City of Murrieta’s denial of permission to hold a drive-in church service in the parking lot of Murrieta’s Reading Cinema. On April 4, 2020, the day after we submitted our letter, we received an Amended Order (“Order”) of the Health Officer for the County concerning COVID-19 limitations on religious practices which specifically prohibited drive-in church service. The Order was further Amended on April 6, 2020.

On behalf of our client, we must first acknowledge the significant efforts you have made to protect the health and safety of the residents in Riverside County. Your efforts are appreciated, and we believe you had the best interests of Riverside residents in mind when you implemented the current coronavirus restrictions. However, in addition to my client’s desire to be good citizens and his concerns over the coronavirus, he has 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 18, 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 “all public or private ‘gatherings,’ [] regardless of venue or size.” It goes on to define “gathering” to include “church” and “any other indoor or outdoor space used for non-essential purpose including, but not limited to [] church services…” The order makes exceptions for gatherings involving “[o]perations at essential businesses included in the designated section 1 [], where many people are present but are able to practice social distancing.” It further excepts “[f]unerals and burial services [] with not more than 10 persons present.”

The Order incorporates the State Public Health Officer’s designated list of “Essential Critical Infrastructure Workers.” These essential businesses include:

• Grocery stores;
• Certified farmer’s market;
• Convenience stores;
• Liquor stores;
• Cannabis retail;
• Workers supporting the entertainment industries, studios, and other related establishments;
• Hardware and home improvement stores;
• Delivery and carry out restaurants;
• Businesses that provide products needed for persons to work from their places of residence;
• Professional services, such as legal or accounting services, when necessary to assist in compliance with legally mandated activities; and
• Commercial construction.

Based on the County’s orders, numerous nonessential businesses find themselves deemed essential. Some of those businesses include, for example, Starbucks, Home Depot, recreational cannabis dispensaries, liquor stores, tobacco stores, and Baskin Robbins Ice Cream. We have no desire to see these businesses closed; however, it reflects upon the arbitrary nature of determining what businesses are “essential.” To the chagrin of religious observers, religious organizations are generally deemed nonessential by the State and County.

Pastor Tim Thompson intends to hold drive-in style church services in the parking lot of 412 Church in a manner that respects the current social distancing restrictions and the health and safety of the community. He intends to comply with all CDC guidelines and the Social Distancing Protocol described in the Order just as any “essential business” is required to do. In fact, he is willing to consider implementing any additional safety measures that may be proposed by the County. However, he will not cease gathering together because members of 412 Church hold a sincere religious belief that the Bible calls them to gather in the same physical location for worship. The County’s Order places attendees of 412 Church in the difficult position of abiding by the Order or violating 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 assembling together for worship 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 states that all public or private gatherings of two or more people are prohibited regardless of the size of the venue or gathering. The Order is overbroad because it makes no exceptions for religious institutions taking extensive protective measures, such as drive-in services in which participants remain isolated in their cars, or in-person services in which participants practice CDC guidelines and are separated by more than six feet. Instead, the County instituted restrictions, banning religious worshippers from gathering at all, and this ban will be in place for an indefinite period.

There is no indication that this ban will be lifted any time soon. In fact, on April 14, Governor Gavin Newsom stated that the prospect of “gatherings is negligible at best until we get to herd immunity and we get to a vaccine.” Governor Newsom explained that restaurants and diners would likely start opening up soon, although he was silent on religious worship. Presumably the County would follow the lead of the Governor and continue this drastic ban on religious exercise for months ahead while lifting restrictions on restaurants.

In addition to being overbroad, the Order is also under-inclusive because multiple people can gather at, in, and around a liquor store, ice-cream shop, grocery store, post office, carry-out restaurant, bed and breakfast, but not in or around a church. Why is it impermissible for a church to hold a drive-in service complying with all CDC and County guidelines while a grocery store, hardware store, or liquor store can have large amount of people in the same location? Several cars can be lined up in a Starbucks drive thru but not in a church parking lot. The Order even allows faith leaders to minister to a maximum of ten people at a funeral service. It is ironic; however, that they can minister to the dead but not the living.

Moreover, the rate of Coronavirus cases in Riverside County does not justify the draconian measures taken by the County. 6 If the situation in Riverside were as dire as the peak of pandemic in New York, an argument could be made for these current 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 religious gathering practicing social distancing and complying with the same CDC and County instructions for “essential businesses” is any less safe than the Home Depot, a cannabis store, or a Starbucks drive thru.

The Order is overbroad, under-inclusive, 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 similar 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