California Churches Sue Gov Newsom Over No Singing In Church Order

I continue to be puzzled at the lack of timely coverage or comment in corporate and social media across the board on California Gov Newsom's rollback of reopening. On Wednesday, three Northern California Evangelical churches, working through the American Center for Law and Justice, sued Newsom over his July 1 order specifically prohibiting singing or chanting in churches, reinforced by his July 14 order prohibiting indoor services in most parts of the state.

Via the Sacramento Bee

In the latest challenge to Gov. Gavin Newsom’s restrictions aimed at curbing the threat of coronavirus, three Northern California churches sued Wednesday seeking to overturn his ban on singing and chanting inside houses of worship.

The lawsuit, filed in federal court in Sacramento on behalf of Calvary Chapel of Ukiah, Calvary Chapel of Fort Bragg and River of Life Church in Oroville, seeks an injunction against the state health department’s July 1 order that places of worship “must therefore discontinue singing and chanting” as part of the effort to slow the spread of COVID-19.

The suit, filed by Southern California attorneys who have filed other lawsuits challenging Newsom’s previous restrictions on in-person church services, says the governor banned singing and chanting inside churches but not in any other locations, and notes that at the same time he “has been unwavering in his support of massive protests” against police brutality.';“On or about July 2, 2020, following implementation of the Worship Ban, when asked to explain whether people should heed Newsom’s mandate and avoid large crowds and gatherings, Newsom refused to place the same restrictions on protesters and explained ‘we have a Constitution, we have a right to free speech,’ and further stated that ‘we are all dealing with a moment in our nation‘s history that is profound and pronounced ... Do what you think is best,’” the lawsuit says.

The suit quotes Scripture to emphasize the importance of singing in church, saying that “singing and praying aloud as a body of Christ is an integral part of worship for believers and plaintiffs.”

“Let me be clear, the state does not have the jurisdiction to ban houses of worship from singing praises to God,” Robert Tyler, one of the lawyers filing the suit, said in a statement.

Neither Legal Insurrection, a blog run by William A Jacobson, nor Instapundit, a blog run by Glenn Reynolds, both highly prestigious professors of constitutional law, has mentioned the suit so far, although it was filed Wednesday. My impression is that this was brought by law firms with experience in this particular field, with an eye to the reasons the previous California suit from South Bay United Pentecostal Church didn't get an injunction from the US Supreme Court on May 29.

For instance, I feel pretty sure they were aware of a so far successful New York suit, which succeeded in getting a New York federal judge to block Gov Cuomo from enforcing a 25% capacity limit on churches when other venues are restricted to 50%. The South Bay United Pentecostal suit primarily argued that the state couldn't restrict religious expression. The counter argument would be that the state had a compelling interest in controlling the "epidemic".

The new suit follows the New York suit more closely in arguing that whatever the state's compelling interest may be, it isn't imposing consistent orders, and those inconsistencies are enormous. The suit is available here. It says,

52. The Worship Ban, on its face and as applied, is neither neutral nor generally applicable, but rather specifically and discriminatorily targets places of worship.

53. The Worship Ban, on its face and as applied, constitutes a substantial burden on Plaintiffs’ sincerely held religious beliefs as they are prevented from practicing the teachings of their religious texts.

54. Defendants lack a compelling, legitimate, and rational interest in banning singing and chanting only in places of worship while allowing the same at similar secular gatherings and secular businesses.

55. Even if the Worship Ban were supported by a compelling interest, which it is not, the ban does not employ the least restrictive means to accomplish the government’s purported interest and is not narrowly tailored to that interest.

The whole basis for the near -universal ban on singing in church was a single choir practice in Mount Vernon, WA on March 10, when an alleged "superspreader" is claimed to have infected 87 other members of the choir. This has been explained by the "droplet" theory of contamination, whereby people singing emit infected droplets at a farther distance than people just speaking or breathing.

The "droplet" theory has come under increasing question, especially as masks are required in California, but "cases" are said to be "skyrocketing", even as people continue to social distance and in particular as churches have generally refrained from singing since in-person services resumed in early June.

We'll have to see how this proceeds -- but we apparently won't have the analysis of the prestigious constitutional law profs, whose public personae are narcissistic and their intellectual interests desultory.