Noah spent less time surviving a global flood in his ark than it has taken for Pastor John MacArthur and Los Angeles County to sort out their fight over public health restrictions due to the threat of a global pandemic.
Noah’s legendary journey of 40 days and 40 nights is nothing compared to the two months already elapsed since MacArthur and his Grace Community Church announced they would hold indoor public worship services against the county’s health order — setting up a nationally significant showdown over religious liberty versus public health.
In the minds of the megachurch’s leaders, this is a fight of biblical proportions, although more on the order of David and Goliath. The church continues to portray itself as the godly underdog being taunted by the giant force of an antagonistic government.
And as if the already 60-day journey has not been long enough, the trip got extended Sept. 24 when the California Superior Court judge hearing the case, Mitchell Beckloff, determined to allow more time for “further briefing” and scheduled a next hearing date for Nov. 13, which will be 113 days from when this legal saga began. Court observers predict the legal wrangling likely will stretch into 2021.
By then, it is possible the root cause of the dispute — a massive public health threat due to a rising tide of coronavirus cases in California generally and Los Angeles specifically — could have subsided.
The Los Angeles Daily News reported Sept. 23 that coronavirus cases in Los Angeles County had begun to abate just enough to see the potential of moving from the high-alert “purple” status to the next-level “red” status.
Moving to the “red” tier would allow restaurants, movie theaters, personal care services and places of worship to resume indoor operations at 25% capacity or 100 people, whichever is fewer.
However, the next day, county officials reported a slight rise in cases again, which did not bode well for moving from “purple” to “red” status. That downgraded status would require new cases of COVID-19 to be held to no more than 7 per 100,000 people for two consecutive weeks. The newspaper reported that more than 2.5 million people in the county have been tested for the coronavirus and 9% of those tested were found to be positive.
The latest ruling
The church and its attorneys immediately celebrated the court extension as a victory.
“MacArthur Prevails – California Court Says Church and Pastor Entitled to Trial” headlined a news release sent out within hours of the Sept. 24 hearing and ruling.
Attorneys working for the conservative Thomas More Society once again called the county’s request for the church and its leaders to be held in contempt of court “constitutionally invalid.”
The church legal team insisted there must be a trial on the constitutionality of the public health orders and the two previous court rulings that said the church could not hold indoor services while the threat of viral transmission remained so high.
“This is significant because no person can or should be held in contempt of a constitutionally invalid order,” asserted attorney Jenna Ellis, who works for the Thomas More Society on behalf of the church and is a personal attorney to President Donald Trump. “Los Angeles County continues to presume that its order is valid, with utter disregard for First Amendment protections. It’s tyranny to even suggest that a government action cannot be challenged and must be obeyed without question.
“This case goes to the heart of what our founders designed for the purpose of legitimate government — not to be above the rule of law. Pastor MacArthur is simply holding church, which is clearly his constitutionally protected right in this country.”
No comment on the ruling was immediately provided by county officials.
In its most recent written submissions to the court, county attorneys said the church’s leaders “have declared themselves above the law and openly flouted the court’s preliminary injunction. Indeed, defendant MacArthur appeared with his counsel of record, Jenna Ellis, on national television to announce the church’s intent to defy the court’s order.”
What’s going on here?
What’s not clear is why both the county and the Superior Court judge have so far declined to use the enforcement tools at their disposal. Both the original public health order — which the California Court of Appeal in August said should be enforced — and the Superior Court’s own Temporary Restraining Order carry potential fines and jail time as punishments. Yet to date, church leaders have been neither fined nor jailed for their public and willful defiance of both mandates.
In an interview with BNG, noted church-state law professor Douglas Laycock assessed that what’s playing out in Los Angeles “really is a matter of political will.”
Laycock is the Robert E. Scott Distinguished Professor of Law at the University of Virginia Law School and has represented parties in four religious liberty cases before the United States Supreme Court.
“There is ample authority to enforce that restraining order,” the professor explained “It’s a matter of the county and the judge having the spine to do it. … It requires willingness to take the public relations heat.”
Given MacArthur’s status as a hero to the conservative evangelical and Calvinist world, his arrest or imprisonment by the county would no doubt create a firestorm. Already his defenders have taken to social media daily to praise him and defend him for his stance against the county.
MacArthur is an 81-year-old pastor with a radio, TV and internet presence around the world.
If MacArthur or other church leaders were to be held in contempt of court for violating the court order — something they don’t deny doing — this would be a criminal offense that could be enforced with fines or jail time, Laycock said. “They could send the pastor to jail until he agrees to comply. There’s plenty of power there.”
The injunction “also is binding on all the employees and agents of the church and on anybody acting in concert with the church,” he added. In its original legal filing against the church, the county listed MacArthur by name as a defendant and reserved the right to add up to 100 additional names as defendants.
MacArthur, for his part, has taunted the government officials by daring them to arrest him.
The Christian Post reported that MacArthur “took an insouciant attitude toward threats of jail time over his church’s decision to hold indoor services amid ongoing COVID-19 lockdowns, saying he’ll simply open a ‘jail ministry’ should he find himself behind bars.”
The publication quoted MacArthur’s interview with Laura Ingraham on Fox News, where he said he had received a letter threatening up to six months in jail if he continues holding indoor worship services at his church in defiance of the public health orders.
“I don’t mind being a little apostolic — if they want to tuck me into jail, I’m open for a jail ministry,” he said. “I’ve done a lot of other ministries and haven’t had the opportunity to do that one. So bring it on.”
Elsewhere in California, another evangelical pastor faced $112,000 in county fines for holding indoor services and decided to move worship outdoors. Jack Trieber, pastor of North Valley Baptist Church in Santa Clara, chose to obey Santa Clara County’s mandates against indoor services, according to ABC7News. The church reportedly was fined $5,000 for every service it held, in addition to fines for other violations.
As in Los Angeles County, Santa Clara County included churches in a larger group of institutions not allowed to hold indoor meetings due to fear of spreading the virus. James Williams, an attorney for Santa Clara County, told The Mercury News that these restrictions were “essential” to public safety. “The reality that churches and other religious institutions across our county were successfully holding outdoor services, drive-in services, remote services — and have been — just completely undermines the notion that they needed to have an indoor gathering and create that huge risk of danger,” he said.
“Defendants admit that they will continue to conduct indoor, in-person worship activities.”
In its most recent court filings, the Los Angeles church admitted to nearly everything the county has alleged it has done and declared emphatically: “Defendants admit that they will continue to conduct indoor, in-person worship activities.”
MacArthur has refused to hold only outdoor or online services and has said his church’s normal operation of indoor, closely packed worship with no masks and no social distancing is “essential” to their faith. Even the outdoor overflow worship space on church property does not include required social distancing or mask-wearing, according to legal documents filed by county officials.
“The Lord Jesus requires us to meet together, and we will continue to do that because we are commanded to and because it is our right,” MacArthur said Sept. 24. “The reality is that the county cannot show that their order is even rational, much less necessary. They have also applied their orders arbitrarily and discriminatorily against churches, and we enjoy a heightened protection in America to hold church. I’ll continue to stand firm and we will continue to fight to protect religious freedom for the church.”
The church in its most recent court filings argued that the Temporary Restraining Order cannot be enforced until the constitutionality of the county’s health mandate is determined. “Just like any criminal defendant in a contempt proceeding, Grace Community Church and John MacArthur … are entitled to prove the unconstitutionality of the order they are alleged to have violated through expedited discovery and an evidentiary hearing.”
In a contempt of court case, however, that’s not the way it works, Professor Laycock said.
“In criminal contempt, it doesn’t matter whether the injunction is valid constitutionally or not. The offense is that you have violated the court’s order.” As a result, the county and the court have “all the legal tools they might need” to charge MacArthur already. But they have not.
Public relations is likely one part of the strategic reason behind not pressing those charges yet, Laycock said, but “it’s not just about public relations. If you go to the maximum enforcement at the beginning and they still defy you, what do you do next? Judges want to avoid getting in the situation where they do something draconian and still don’t get compliance.”
Who is Judge Beckloff?
Judge Beckloff is a graduate of Loyola Law School and was appointed to the bench by then-Gov. Arnold Schwarzenegger in 2007. In California, Superior Court judges may be appointed by the governor when a vacancy occurs, but the judges must stand for election every six years to remain on the court. Beckloff most recently was reelected to the bench in 2016 with no opponent and will not stand for election again until 2022.
He has gained public notoriety for his role in two high-profile cases. He has been and remains the judge hearing all matters related to the Michael Jackson estate, including alleged sexual harassment claims. He also presided over probate of the estate of Mark Hughes, founder of Herbalife, who died at a young age and left a $350 million fortune to his 8-year-old son.
Beckloff’s current court assignment is in the area of writs and receivers, meaning cases about administrative licensing and seizure of certain property and assets. The church on several occasions has filed requests to have the MacArthur case moved from his courtroom to another, claiming it is not the most suitable match.
A recent interview with the Receivership News described Beckloff thusly: “For recreation, he is likely to be found in NYC at his apartment on the upper east side where he and his husband, Clay Williams, enjoy all that NYC has to offer including theatre, music in all forms and unending arts and museums. They travel frequently, including such lands as Africa and Japan just to mention a couple. … Judge Beckloff is smart, personable, presumably hard working and dedicated.”
Religious liberty implications
In his Sept. 10 ruling granting the Temporary Restraining Order against the church, the judge made meticulous mention of recent U.S. Supreme Court rulings relevant to this case and the understanding of religious liberty. He particularly noted recent opinions by Chief Justice John Roberts.
That 18-page opinion took apart the church’s claims of singular persecution by the county. “While the court is mindful that there is no substitute for indoor worship in the ‘spiritual refuge’ of a sanctuary, the court cannot ignore the county health order does not dictate a ban on worship,” Beckloff wrote.
MacArthur and church leaders have claimed churches were targeted for closure by the county health order, while the county has argued that churches have not, in fact, been ordered to close and have not been singled out. Church leaders repeatedly have pointed to events and businesses they oppose — Black Lives Matter protests and cannabis dispensaries — as receiving more favorable treatment than churches.
The most recent court filings by the church seek to require county officials to answer pointed questions about this, including: “Explain in detail why you have not sought a temporary restraining order against any political protestors or protest organizers” and “Explain in detail all efforts you have undertaken to enforce your health orders against any George Floyd related political protestors or protest organizers.”
Churches and other performance venues, the county has said, present a significant risk of creating “super-spreader” events of coronavirus.
The county has previously countered that indoor mass gatherings like church services are different than outdoor events where people are wearing masks and socially distancing and are different than retail stores where customers come and go in small numbers. Churches and other performance venues, the county has said, present a significant risk of creating “super-spreader” events of coronavirus. Churches have not been treated differently than similar indoor sporting or performance venues.
Beckloff — who three times earlier delayed taking immediate action against the church — said in his Sept. 10 ruling that the text of the county health order “does not discriminate on its face. It does not specifically target religious practice. That is, the county health order limits religious worship only because it applies to all ‘events and gatherings’ — regardless of their purpose — unless such ‘events and gatherings’ are otherwise permitted by the order. Thus, the county health order is facially neutral. In fact, religious services are ‘specifically allowed’ by the order.”
Professor Laycock of the University of Virginia said the judge likely has put his finger on exactly the reason MacArthur and the church will not prevail in higher courts if they keep pressing their case against the county. “They can appeal it all the way up,” he said. “I don’t think they’re going to get a different result.”
That view is shared by Caroline Mala Corbin, law professor at the University of Miami, who has written an article in the Duke Law Journal Online titled “Religious Liberty in a Pandemic.”
“Even assuming worship services are equally ‘essential’ in terms of religion’s centrality to people’s lives, gathering in person to worship may not be necessary in the way that heading to the market is,” she wrote. “That is, there may be no other way to procure an exempted essential service but to physically go somewhere in person, while alternatives exist for religious services.”
The Miami professor concludes: “Bans on all mass gatherings, including religious ones, are both sensible and constitutional in the midst of a pandemic. Indeed, in rejecting a religious liberty challenge to a child welfare law in 1944, the Supreme Court noted, ‘The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.’ That sentiment still holds true today. Our constitutional rights are precious, but none of them are absolute. Even the right to religious liberty is not absolute, especially if exercising it endangers others. ‘After all, without life, there can be no liberty or pursuit of happiness.’”
“Bans on all mass gatherings, including religious ones, are both sensible and constitutional in the midst of a pandemic.”
In an interview with the Dallas Morning News, Corbin said churches must not be treated differently than other similar bodies in a state or region. In Texas, for example, the governor has declared all churches “essential” and not bound by public health restrictions.
“It undermines public health to grant them an exemption, because coronavirus doesn’t distinguish between religious gatherings and secular gatherings,” Corbin told the newspaper. “There seems to be a trend of letting religious schools, for example, have their cake and eat it too.”
And the same is true with faith-based private schools, she added. “They want to be treated as every other school when it comes to government funding, but they want to emphasize the religious part when it comes to special benefits. It’s sort of like, which one is it? Are you like every other school, or do you want to be treated as distinct? Because if you insist on distinctive treatment, there are both pros and cons to that distinctive treatment. They want to have all the benefits and none of the responsibility.”
Grace Community Church in its most recent court filings has alleged 20 causes of action against the county, including violations of freedom of religion, freedom of assembly and freedom of speech. “It is a tragic state of affairs when the government would now use an iron fist to prevent its citizens from worshipping their God. Such an approach may be expected in a totalitarian state, but it is anathema to the heretofore free people of these United States,” the filing declares.
For now, what the church has is time. Since neither the county nor the court appears inclined to enforce the mandated penalties against the church for defying both the county health mandate and the state court’s injunction, nothing is likely to change until a full trial is held — maybe next year.
By then, the threat of coronavirus could be much different — if a vaccine has been approved and if current measures to curtail the virus prove effective. And if Grace Community Church continues its lucky streak of not having any known coronavirus within the congregation.
Timeline of events in the MacArthur/Los Angeles County dispute
On May 29, the United States Supreme Court ruled 5-4 that churches could not be exempted from California’s statewide mandate against mass gatherings that includes churches and other performance or event venues.
On July 18, the Los Angeles County Department of Public Health issued an updated public health order prohibiting mass indoor gatherings — such as at churches, theaters and sporting events — to prevent super-spreader events of coronavirus.
On July 24, the Grace Church elder board issued a declaration that the megachurch would defy the government order and meet for worship anyway. “We cannot and will not acquiesce to a government-imposed moratorium on our weekly congregational worship or other regular corporate gatherings,” the elders said. “Compliance would be disobedience to our Lord’s clear commands.”
On July 26, Grace Community Church held the first of what would be weeks of indoor public worship services without observing the public health order. The county quickly sought relief from the California Superior Court to force the church to comply with the health order.
On Aug. 13, MacArthur and the church filed suit against the county over the public health order, and the county promptly countersued, arguing that Grace Community Church’s compliance with state and county health mandates is “necessary for the health and safety of the citizens of the county and the state as a whole, and immediate and irreparable injury will result if defendants do not comply.”
On Aug. 14, Superior Court Judge James C. Chalfant issued an order granting in part and denying in part the county’s request for a Temporary Restraining Order against the church and MacArthur. Handed an incomplete victory, the county immediately sought emergency relief with the California Court of Appeal on Friday night, Aug. 14.
On Aug. 15, the Court of Appeal overturned Judge Chalfant’s order refusing to allow the county’s right to enforce the public health order’s ban on indoor religious activity. However, the county did not take direct action against the church for violating the public health order, instead continuing to pursue the case through the courts.
On Aug. 16, MacArthur and the church held additional indoor services in direct defiance of the Court of Appeal ruling.
On Aug. 20, the county filed an ex parte application with the Superior Court of the State of California demanding that the church and MacArthur show cause why they should not be held in contempt of court.
On Aug. 24, a hearing was held in the Superior Court before Judge Mitchell Beckloff. The church filed 18 pages of new documentation defending its position, and the county filed eight pages of documentation restating its case against the church.
On Aug. 25, Judge Beckloff denied the county a Temporary Restraining Order against the church but also affirmed the county’s right to adopt and enforce its own health restrictions.
On Aug. 30, MacArthur told the assembled congregation “there is no pandemic” and was applauded by the congregation for his statements defying the county and state governments.
On Sept. 10, Judge Beckloff issued an order granting preliminary injunction against the church holding indoor, in-person services, and requiring them to adhere to the county health order.
On Sept. 13, the church defied Judge Beckloff’s order by holding indoor public worship services without social distancing or masking.
On Sept. 16, the county’s attorneys gave notice of their application seeking a court order to hold MacArthur and the church in contempt of court for the documented defiance of the court’s own order.
On Sept. 24, Judge Beckloff put off further rulings on the restraining order until later, scheduling a next court date on Nov. 13.