ACLJ Files Pivotal Brief in Supreme Court Showdown Over Church Targeting by Gavin Newsom and California

California wants this case to go away. We won’t let it.

During the COVID-19 pandemic, Santa Clara County issued a mask mandate requiring face coverings at all indoor gatherings (with a laundry list of exceptions for everything from sporting events to bars, but not church services). Calvary Chapel San Jose refused to enforce the mandate on its congregation, citing its faith-based approach to worship. After multiple warnings, the county began issuing daily fines in November 2020. Both the California superior court and the California Courts of Appeal upheld the fines. After the California Supreme Court declined review, the ACLJ petitioned the U.S. Supreme Court.

These fines were part of California Governor Gavin Newsom’s ever-shifting rules on how, when, and where worship could occur, and the total judgment now exceeds $1.2 million, with attorney’s fees still pending. California filed its opposition brief urging the Court not to take the case. We just filed our reply brief.

The ACLJ is proud to represent Calvary Chapel San Jose and its pastor, Mike McClure, alongside co-counsel Robert Tyler and Advocates for Faith & Freedom.

California and Santa Clara County want the Supreme Court to believe this case is over – that because the mask mandate has been rescinded, there’s nothing left to decide. That argument doesn’t hold up. The $1.2 million judgment against the church for worshiping according to its beliefs hasn’t been rescinded. The constitutional injury is ongoing and growing. And the legal authorities that let government officials issue these orders in the first place remain fully intact – ready to be used again the next time officials decide churches need to be managed.

Sign the petition: Defeat Newsom’s War on the Church at the Supreme Court.

We filed our reply brief, which made four arguments for why the Supreme Court must take this case.

1) The Mask Mandate Was Full of Secular Exceptions – That Triggers Strict Scrutiny

Supreme Court precedent is clear: When a law exempts comparable secular activities from its reach, it is not “generally applicable” and must survive strict scrutiny before it can be enforced against religious exercise.

Santa Clara County’s mask mandate was riddled with secular exceptions for the mask requirement – for athletes, restaurant diners, personal care services, and more. But Calvary Chapel’s congregation was told it could not worship without masks.

As our brief puts it, the COVID virus does not care whether a mask comes off for a meal or for Communion, for intense athletic competition or for intense prayer. The California Courts of Appeal severely distorted the “general applicability” test to reach its result. And notably, the Supreme Court has already corrected California courts five times for doing exactly this during the pandemic. Defiance of Supreme Court precedent does not earn immunity from review.

2) The Government Has No Business Refereeing How a Church Worships

Beyond the general applicability argument, our brief urges the Court to recognize what we call a liturgical exception as part of the church autonomy doctrine. The Supreme Court has already held that the government cannot second-guess a church’s selection of its ministers. The case for protecting a church’s conduct of its own worship services is even stronger. Just as courts don’t tell a church who to hire as its pastor, they shouldn’t be telling a church how to hold its services.

3) If Smith Permits This, Smith Must Go

If Employment Division v. Smith – the 1990 decision that weakened Free Exercise protections – truly permits government to dictate the details of religious services, then Smith is fundamentally incompatible with religious freedom. The legal frameworks that authorized these mandates are still on the books. Officials who issued these orders still hold their offices. The next public health emergency will not announce itself in advance. The time to resolve these questions is now, not in the chaos of the next crisis.

4) A $1.2 Million Fine for Following Your Faith Is Unconstitutionally Excessive

The Eighth Amendment’s Excessive Fines Clause independently bars this punishment. The same government that fined Calvary Chapel $5,460 per day had no problem permitting unmasked NFL players to huddle, crash into each other, and hand off a ball for hours on Sunday. As the amicus brief filed by West Virginia and other states pointed out: If those same 103 players had walked into a church, sat in pews, and prayed together, they would have been in violation of the same guidance that permitted the game. Calvary Chapel’s daily fine also exceeded the Santa Clara County Code’s own maximum penalty for improper storage of hazardous materials. That is not proportionality. That is punishment for worshiping.

We won’t have a warning for the next public health crisis. If the Supreme Court declines to act now, the message to every health officer in California and dozens of other states is clear: You can do this again. That’s why 20 states, along with others, have already filed amicus briefs urging the Court to take this case. This coalition understands what’s at stake.

Take action with the ACLJ. Sign the petition: Defeat Newsom’s War on the Church at the Supreme Court.