ACLJ Asks U.S. Supreme Court To Review Case of Church Punished for Worshiping According to Its Beliefs

“At issue in this case is the ability of government to referee religious services in a house of worship.” That’s the opening line of our petition for a writ of certiorari – our formal request that the United States Supreme Court review the case of Calvary Chapel San Jose v. California. As our previous coverage explained, this is a case in which California and Santa Clara County, with the approval of state courts, slammed a local Christian church with over a million dollars in fines. Why? For not requiring its congregants to wear face masks during church services. (Congregants were free to wear them if they wished.)

Santa Clara County and the state government imposed a host of ever-changing rules on “businesses” – defined to include churches! – during the COVID pandemic. Among other things, at various times, the government authorities told our clients, Calvary Chapel San Jose (CCSJ) and its pastor, Mike McClure, that the church had to limit the number of congregants, socially distance the worshippers, ban them from singing, and require them to wear face masks. CCSJ and McClure objected to these restrictions as interfering with their faith-based worship practices and thus violating the First Amendment right to freely exercise their religion.

Take action with us and sign the petition: Defeat the War on Christians.

Now, the various COVID rules had lots of exceptions (see below) – but not for churches! And aside from the government-approved exceptions, the government officials tolerated no dissent. They cited CCSJ for violating the restrictions and then marched into state court to get orders forcing CCSJ to obey. The state trial court obliged, ordering CCSJ to submit to the government protocols. When the church stuck to its religious principles, the court held the church in contempt and imposed sanctions in excess of $200,000. Meanwhile, thankfully, the U.S. Supreme Court was issuing a series of rulings decreeing that governments (specifically including California!) could not subject churches to harsher rules than secular entities like casinos or big box stores. Those rulings persuaded the state appeals court – the California Court of Appeal, Sixth Appellate District – that the injunctions and contempt sanctions against CCSJ were unconstitutional and “void.”

That was a great victory for CCSJ! But the state and county government were not about to give up their efforts to assume the role of protocol secretary for churches. Instead, the government plaintiffs continued citing CCSJ for violations of the COVID rules, amended their complaint against CCSJ, and requested over $3 million in penalties against the church, among other things, for CCSJ’s failure – refusal – to require all its congregants to wear face coverings.

CCSJ objected. Not only would the penalties violate the Free Exercise Clause of the First Amendment, CCSJ argued, but the massive fines would violate the Eighth Amendment to the U.S. Constitution. That Amendment provides, in part, that “excessive fines” shall not be imposed.

The state trial court (Superior Court of Santa Clara County) rejected almost all of CCSJ’s arguments, though it did reduce the total penalty to $1,228,700 in “face covering fines.” CCSJ appealed, but the California Court of Appeal upheld the fines.

Up to this point, CCSJ and Pastor McClure had been ably and zealously represented by our friend, attorney Bob Tyler, and his team at Advocates for Faith and Freedom. After the Court of Appeal denied their request for a rehearing, and the Supreme Court of California declined to review the case, Bob asked ACLJ Chief Counsel Jay Sekulow for help in taking the case to the U.S. Supreme Court. The ACLJ agreed, and on December 12, 2025, along with Bob and his team as co-counsel, we filed our petition for writ of certiorari.

Here’s our summary of why the Supreme Court should hear the case:

This Court should grant review to clarify that restrictions on religious worship services trigger strict scrutiny, under the Smith test, where the restrictions are subject to secular exceptions; or, in the alternative, that the church autonomy doctrine shields not just the selection of ministerial personnel but also a religious body’s managing of its religious rituals. If Smith does not require strict scrutiny or autonomy for religious services, then this Court should overrule Smith.

This case also presents the question whether the Eighth Amendment bars as excessive the imposition of million-dollar fines for the refusal to submit to government dictation of the intimate details of religious services.

Let’s unpack those points.

First, the Supreme Court has repeatedly held that when a restriction contains exceptions, then the restriction is not of “general applicability,” which under the test of Employment Division v. Smith (1990) (the Smith test), means those restrictions must face “strict scrutiny,” a standard that is extremely hard to satisfy. And the restrictions in CCSJ’s case were chock full of exceptions:

For example, the County’s October 10, 2020 mandatory directive for collegiate and professional athletics stated: “Athletes and officials may remove their face coverings . . . while they are actively engaged in athletic activity.” . . . (Picture wrestlers, football linemen, and basketball players huffing and puffing in very close proximity to each other.) . . .

[T]he COVID restrictions denied religious worship comparable treatment in at least the following respects: the restrictions had exceptions (1) for medical reasons but not for religious reasons . . .; (2) for engaging in sports, including contact sports, but not for engaging in praise and worship; (3) where needed to communicate but not where needed to worship in accord with one’s beliefs; (4) where government officials determined in their discretion that extending an exemption was warranted, though no such exception was afforded to houses of worship; (5) to engage in services involving the viewing or use of the face, but not to participate in religious services that may involve the face, such as Communion; (6) for persons gathered for a meal but not persons gathered for a commemoration of the Last Supper, a seder, or other religious ritual; (7) for outdoor work or recreation, but not outdoor religious services; (8) when in a prison, but not in a church.

The state and local government (and the state courts) tried to minimize this list of exceptions. But in so doing, they asked the wrong legal question. As we explain:

The assessment of a restriction’s general applicability does not entail merely a comparison of the activities as such, but rather a comparison of the risk to the government interest (here, the spread of COVID):

[W]hether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. [Roman Catholic Diocese of Brooklyn,] 141 S. Ct. [at] 67 (per curiam) (describing secular activities treated more favorably than religious worship that either “have contributed to the spread of COVID-19” or “could” have presented similar risks). Comparability is concerned with the risks various activities pose, not the reasons why people gather. . . .

Tandon, 593 U.S. at 62. “A law . . . lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” Fulton v. City of Philadelphia, 593 U.S. 522, 534 (2021). That analysis suffices here to trigger strict scrutiny. . . . The COVID virus does not care whether the mask is off (1) for medical or religious reasons; (2) for intense sports or for intense prayer; (3) to communicate or to worship; (4) pursuant to government discretion or not; (5) to engage in facial services or religious services; (6) for a meal or a religious ritual; (7) for outdoor work or recreation or outdoor religious services; (8) in a prison, or in a church. For that matter, the virus does not care if the breathing person is age two or under. But cf. supra pp. 7, 10 (exempting those age two or younger from masking requirement).

Therefore, the lower courts should have reviewed the restrictions on CCSJ under “strict scrutiny,” a standard under which the church almost certainly would prevail in the litigation.

Second, we are asking the Court formally to recognize special constitutional protection for worship services under the Free Exercise Clause. The Court already had embraced a “church autonomy” doctrine, which means governments have to keep their hands off a religious body’s “faith and mission.” The Court has specifically held that “church autonomy” includes a “ministerial exception” – that is, government cannot use secular laws (e.g., employment laws) to interfere with a church’s selection of its ministers. We argue that the same rule should apply to a “liturgical exception.”

A government’s prohibition of worship services, or dictating how such rituals are to be conducted, is something one would expect from the Soviet Union or Communist China. Government suppression of or interference with religious worship is anathema to American principles of religious liberty enshrined in the Constitution. . . .

Indeed, if anything qualifies as “essential to the institution’s central mission,” it is the conduct of worship itself. For most religious bodies, worship services constitute their raison d'être. While hiring decisions affect how a religious institution pursues its mission, liturgical decisions often represent that mission itself.

As we point out, a liturgical exception

would not be a carte blanche for criminal acts contrary to legitimate police power. Child sacrifice, for example, as homicide remains homicide, regardless of one’s theology. But government micromanagement of such matters as health protocols would be constitutionally off the table . . .

And, of course, the government remains free to warn people about health risks:

Importantly, the government can always seek to educate the public with its advice on healthier living and avoidance of risks. And congregants are free to attend or not attend a house of worship that observes (or not) such government advice, or to take personal measures as they see fit. But government dictation of the rules for religious rituals is the hallmark of totalitarian governments, not the United States of America.

Third, we argue that if the 1990 Smith precedent still blocks CCSJ’s right to worship as it sees fit, despite the exceptions and despite the special protection church services should receive, then the Supreme Court should overrule the Smith case. In other words,

Smith would stand for the proposition that government can, in the name of “health,” prescribe the details of religious services. If that is so, then Smith is fundamentally incompatible with religious freedom and should be overruled.

There have been repeated calls – from Supreme Court Justices and from legal scholars – to overrule Smith. The Court may decide in this case that it is time to do so.

Fourth, and finally, we argue that a $1.2 million fine for adhering to one’s faith regarding worship services is unconstitutionally excessive under the Eighth Amendment. As the Supreme Court has explained,

Like the Eighth Amendment’s proscriptions of “cruel and unusual punishment” and “[e]xcessive bail,” the protection against excessive fines guards against abuses of government’s punitive or criminal-law-enforcement authority. This safeguard, we hold, is “fundamental to our scheme of ordered liberty,” with “dee[p] root[s] in [our] history and tradition.”

The Excessive Fines Clause should protect CCSJ in this case. As we explain:

Here, Calvary Chapel stood up resolutely for its religious beliefs. As the church phrased it in its briefing below,

while Calvary Church did continue to operate in violation of the ordinances, it was not out of ill will, but because it believed, and still believes, it has a constitutional right to meet in person, gather in groups larger than 25 people, sing, perform communion, and worship without masks.

We conclude:

Standing up for one’s beliefs against government prescriptions has a long and venerable tradition in this country, a tradition running through such iconic figures as the children in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (refusing to pledge allegiance), and the automobile owners in Wooley v. Maynard, 430 U.S. 705 (1977) (refusing to display “Live Free or Die” motto on license plate). Government overreactions to such principled noncompliance, by contrast, constitute shameful episodes in our history [citing brutality against civil rights protesters].

Here, CCSJ has stood up against “government overreach in its efforts to exact total obedience to health protocols against assertions of constitutional rights.” For their courageous witness, we should be grateful to CCSJ and Pastor McClure. Now, let’s see if we can get those fines overturned!

The Supreme Court is likely to announce sometime next spring whether it will hear the case of Calvary Chapel San Jose v. California.