An Interim COVID Strategy That's Showing Results

At best attempts to invoke the US First Amendment to lift the restrictions placed on in-person worship via the courts have been slow and so far, not very effective. The attorney and YouTube commentator Robert Barnes has observed that there are several reasons for this, in particular that judges are also members of the credentialed class that is imposing lockdowns (and I would add often members of the local political machine). In addition, Barnes points out that as an appeals judge, even Amy Coney Barrett, the great conservative hope for the US Supreme Court, has ruled in favor of lockdowns and against churches in one First Amendment case.

But short of what we must hope is an eventual First Amendment resolution, the legal Achilles heel of nearly all lockdown regimes is that they are health department orders. On one hand, they aren't laws passed by legislatiures. Even now, there's an established consensus among sheriffs and police chiefs that law enforcement does not enforce health department orders, and even attempts by political authorities to force them to do so are contentious.

And attempts by health departments to obtain court injunctions against churches that violate health department orders by holding non-conforming worship services have been largely ineffective. The case of Andrew Wommack Ministries International in Colorado is an illustrative comedy of errors. The Liberty Counsel site provides the latest update. The state and county health departments brought requests for an injunction against the ministries in federal court,

Their motion requested that AWMI be held in contempt and prohibit future conferences.

The judge first denied the request to hold AWMI in contempt, stating the court had not issued an injunction against the ministry. However, the judge then stated she had authority to hear the defendants’ emergency motion under state law. Liberty Counsel argued that the court lacked jurisdiction to rule on state law because neither AWMI nor the defendants brought state law claims before the court. The defendants’ motion lacked any legal basis and it also violated many federal rules. Federal courts under Article III of the Constitution have limited jurisdiction. Such courts have no authority to reach outside the record and the legal claims to decide state law claims not before them.

The health departments' legal case was hampered by the fact that health department counsel appeared to have no experience in trying to enforce their orders via litigation. Among their newbie errors was that they tried to get the Wommack ministries declared in contempt of court when there was in fact no court order against them. Thus Wommack continues to hold its ministers' conference without interference.

If federal courts have been reluctant to rule in favor of churches on First Amendment grounds, local courts have been reluctant to rule against them, on the basis that the First Amendment issues are undecided. Although the Southern California Evangelical churches' cases are all in different local courts, the Grace Community Church case appears to be proceeding generally like those of Godspeak Calvary Chapel and Harvest Rock Church.

In the YouTube interview below, Pastor MacArthur gives a brief outline of the situation. Although LA County tried to cancel the contract that allowed the church to use its property for a parking lot, the judge would not allow this to happen until the First Amendment issues are resolved at trial. Health department fines are placed in escrew until the legal issues are resolved as well.

Beyond that, one of MacArthur's overall points has been that as churches continue to meet in oppositoin to political authorities' attempts to regulate liturgy and attendance, it attracts attention, and this in turn brings more people to church and also brings community support. A neighboring synagugue, for instance, as MacArthur explained, realized it wasn't using its own parking lot on Sundays, so it offered it to Grace Community Church for Sunday use, due to the county threat, now in abeyance, to prohibit church parking on county property.

While there have been exceptions -- North Valley Baptist was forced to surrender to its county health department, for instance -- it appears that having the fortitude to commit civil disobedince, combined with effective counsel, is proving to be an effective short-term strategy.

Whether MacArthur's optimism that this will go away by next year is justified is a different question.