Introduction
Recently, numerous articles regarding the California singing ban and the situation of the churches in California have been popping up across the various news platforms, both liberal and conservative. Initially, when churches closed all across the country, there was not a huge public outcry over it because businesses and other non-essential meeting places were also closing. More than that, studies are showing that most people on the whole did the sensible thing and social distanced even without the government order to do so. So why the uproar about it now?
California’s Singing Ban
In the situation with the California singing ban, the governor is being sued over the banning of not only singing and chanting in any gathering but also for trying to close down places of worship once again. Had this come prior to all of the BLM rallies, we might not see such an uproar about these bans. There would be some, of course, since singing clearly targets religious establishments more so than it does most businesses where members of the public might frequent. However, the issue here sparked over the fact that Newsom has shown repeated and staunch support of the giant rallies held by BLM activists and protestors, many of which have included chanting and singing in addition to giant dance parties.
When commenting on the California singing ban and the subsequent lawsuit, Mat Staver, founder and chairman of Liberty Counsel, said “Newsom encourages tens of thousands of people to gather for mass protests, he bans all in-person worship and home Bible studies and fellowship. Such repression is well-known in despotic governments, and it is shocking that even home fellowship is banned in America. This outrage will not stand!”
In talking about the case, LA Times states “Court records cite the governor’s endorsement of the recent Black Lives Matter protests as an example of his inconsistency when it comes to freedom of speech and crowds gathering.”
Several of the churches dealing with the ban at both a local and state level are in counties where the spread is not currently an active threat or issue, but they have faced severe lash back nonetheless from the local city government officials. The Center Square, a news source focused on providing local and state level news that is reliable, reports that “Los Angeles-based evangelical pastor John MacArthur and Grace Community Church have sued Gov. Gavin Newsom, Attorney General Xavier Becerra, Los Angeles Mayor Eric Garcetti, and several state and county public health officials. They allege the state and county have violated six provisions of the state constitution and are demanding a trial by jury.” John MacArthur is simply the most notable of the many pastors facing the shut down orders from state and local authorities following the California singing ban.
The Argument on the Constitutionality of California’s Singing Ban
At the heart of the argument against what Newsom has ordered is the constitutionality of the California singing ban. The defendants argue that Newsom has targeted churches and religious establishments in particular because he has not upheld the same standard across the board. They argue that his continued support of both protests and protests that turned into riots as well as the singing and chanting that often went on there by extension has made it clear that the new order from Newsom is targeted directly and intentionally at churches. They are not disputing the orders to shut down, though in some of the churches’ counties that is a component of the issue as other public places that were non-essential were not required to shut down and as those counties were not on the watch list requiring the closing of establishments of any sorts. However, the main focus of the argument is that Newsom’s contradictory enactment of the new ban has made it about religion, not about the issue of increased risk of spread due to singing.
Furthermore, they argue, the ban on singing singularly affects churches because singing, recitation of Scripture, and Bible reading or sermons are integral parts of worship for the Americans attending the service and are, therefore, protected under our first amendment rights. The Center Square reports that Charles LiMandri of LiMandri and Jonna LLP–the law firm representing MacArthur–stated “[all churches] are entitled to practice their religion without government interference. This is especially the case when the government has given free rein to protestors, and is not similarly restricting marijuana dispensaries, large retail outlets and factories, and abortion providers. The government orders are also unconstitutional because there is no compelling need for the onerous restrictions on the churches at this time.”
The state and Newsom, however, are arguing that there is nothing unconstitutional about it. They argue that in the middle of a pandemic extreme measures may be called for and cite the CDC findings that performances of any kind may increase the transmission of aerosols containing the virus, which is directly correlated to the volume at which an individual speaks.
Constitutional or Not?
Having looked at the facts of the case, we must now look at our Constitution and the laws or orders surrounding the case to determine if what is happening in California is something that is constitutional. If facts and our Constitution prove it is not, then it ought to be roundly condemned by Christians and non-Christians alike because our Constitution protects the “unalienable rights” that Jefferson spoke of in the Declaration of Independence. If they instead prove that there is not in fact anything unconstitutional, then the churches ought to comply with the orders without further complaint.
To make any argument to either side, we must first look at the first amendment and its wording as that forms the basis of the argument made that it is unconstitutional to ban singing. The first amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
This, of course, gives first amendment protection both to the churches and to the peaceful protesters spoken about in the sources quoted above. However, the purpose of this amendment is to ensure that, as Cornell Law School puts it, a guarantee of “freedoms concerning religion, expression, assembly, and the right to petition.” Further, they state, “It forbids Congress from both promoting one religion over others and also restricting an individual’s religious practices. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely. It also guarantees the right of citizens to assemble peaceably and to petition their government.” (The links here are ones Cornell Law School’s website had regarding the highlighted portions of text.)
So, therefore, the government can not show favoritism to one sect or another or restrict individuals in their religious practices in ways that they would not restrict every other citizen.
Therefore, based solely on the first amendment, we must then say that if Newsom’s singing ban is restricting the individual’s religious practice of singing in church, pandemic or no, and it is not applied to everyone–religious or not–then the ban is therefore unconstitutional. As we already observed earlier, Newsom has repeatedly supported the demonstrations and protests as well as those that have turned into riots, which is undeniably unconstitutional per this first amendment. So to say that the ban has not been made to unfairly target religious establishments is a bald-faced lie. If it were intended merely to help stop the spread of the virus, as Newsom and the California department of health have suggested, then they would also have both banned singing/chanting in the protests and banned the protests entirely in the counties on their watch list.
That last note brings us to the second point against Newsom and his clearly unconstitutional ban on singing and now gathering. Newsom made a list of the counties that had the highest risk of transmission, all of which he then ordered to shut down anything non-essential. This order was given across the board for all types of public gathering places from churches to businesses. So fine. Nothing wrong with that. He is not targeting anyone unduly there.
However, this is where things end up going awry. Newsom and the public health department as well as county officials demanded that several churches in counties not on that watch list also shut their doors. This involved cease and desist orders, heavy fines, and threats of arrest. In counties that are on the watch list, this response would have been valid. In counties not on the watch list, it is clear violation of religious freedoms as other locations without religious affiliations were under no such orders, threats, or fines for carrying on as usual with the social distancing policies fully followed. So, on this count as well, Newsom once again has violated first amendment rights and the constitutional rights outlined under California’s own constitution as well. His clear show of favoritism towards rioters and peaceful protesters alike combined with his undue discrimination against the churches renders his ban unconstitutional and therefore wrongful authority that no American ought recognize.
The Response to California’s Singing Ban
The response to California’s singing ban on the part of the courts should be clear if they in any way care about upholding the law and holding even the law makers–or, one might say, especially the law makers in this case–to the laws of the land. No one is above the Constitution or the laws of our land. That is one of the key principles that our Founding Fathers believed in and sought to enshrine in our legal system. It was part of what made us so different from the countries around us and from many of the large countries known to us through the pages of history. We did not follow the example of the Roman Empire and allow our rulers to exalt themselves above the people they ruled as if they were gods to be obeyed.
But that has not been the response of the courts. In MacArthur’s case, a lower court’s ruling that MacArthur should be allowed to continue having services provided social distancing guidelines were followed was promptly overruled by the California Court of Appeals. The response legally has been mixed between those who believe that this unconstitutional behavior should continue and those who roundly condemn it. According to the Hill, “
Jordan Sekulow, the executive director of the ACLJ, criticized the order, calling it an ‘unconstitutional abuse of power. And to do it in the name of a pandemic is despicable,’ he said in a statement. ‘This ban is clearly targeted at religion. It is clearly a violation of the First Amendment and a direct violation of religious liberty.'”
Conclusion
The facts and the Constitution by way of the first amendment make the ruling on Newsom’s California singing ban clear: unconstitutional and targeting religion in an unacceptable way. Should we care? Yes. Whether we are religious or non-religious, we must not stand for any violation of the unalienable rights we possess by virtue of being human beings. Furthermore, we must also refuse to stand for any violation of our clearly state Constitutional rights, for an attack on the rights of one is an attack on the rights of all. As many have said in quoting Evelyn Hall, “I disapprove of what you say, but I will defend to the death your right to say it.”
While the writer was clearly referring more to freedom of speech, we may apply a similar philosophy to the defense of our Constitutional rights. I may not agree with how you choose to use those rights within the framework of our Constitution, but I will defend to the death your right to exercise them. There must be no leniency or quarter provided to those who wish to ignore the supreme law of our land for to give them quarter is to stand by and accept the despotic wishes of any those believe that they should be capable of holding power under the law while acting above it in any case where their despotism is deemed by their judgment to be convenient or desirable.
Sources
Fox News “California church network sues Gov. Newsom over ban on worship, home Bible studies”
Los Angeles Times “Three California churches sue Newsom over singing ban”
CNN “Three California churches take state to federal court over ban on singing during services”
The Federalist “California Court Rules John MacArthur’s Church Must Comply With County Ban On Religious Services”
The Center Square “Pastor, church sue Newsom, Los Angeles County officials over orders”
The Hill “California churches sue governor over singing ban”
Cornell Law School “First Amendment”
