Removal sought for order targeting Jewish Holy Days

A nonprofit law firm defending religious liberties has asked Los Angeles County to rescind its public health order prohibiting extended families from celebrating religious holidays, as the language specifically targets Jewish communities in violation of the First Amendment.

Stephanie N. Taub, senior counsel at First Liberty Institute, wrote county officials Wednesday on behalf of Rabbi Yisrael Gelb, who like others in the Jewish community, is preparing to observe the High Holy Days of Rosh Hashanah and Yom Kippur. The tradition typically includes a series of meals in households with gatherings of friends and family.

Los Angeles County's COVID-19 public health order states that "having dinner with extended family and friends to honor the High Holidays" was not permitted. The rule applies to gatherings of any size among people who don't live in the same household.

Taub argues the initial policy, issued Sept. 2, specifically listed the Jewish holy days as one of several examples of prohibited conduct before it was amended to read "having a meal with extended family and friends for a religious or cultural holiday."

The county hasn't vigorously enforced household gatherings, "and now has the opportunity to demonstrate whether it intends to follow through on its threat to criminalize the observance of the High Holy Days at a family's dinner table or whether its profoundly disrespectful language was a mere empty threat," Taub wrote.

Her letter was also sent to U.S. Attorney General William P. Barr, who earlier this year during the onset of the stay-at-home orders, directed federal prosecutors around the nation to step in if situations arise where constitutional liberties are being violated by state and local governments.

In a statement, Los Angeles County's media relations division said it was committed to protecting public health and safety during an unprecedented crisis "that has tragically claimed thousands of lives and upended life for millions of people -- not just in Los Angeles County but across the nation and around the world."

"We recognize that religious services are central to many of our residents' lives, especially in these trying times, and religious services have been allowed to be held online and outdoors with physical distancing and the use of face coverings, and they may continue to be held with those public health safeguards in place," the county's statement read.

Taub contends the recent heat wave, unhealthy air quality and ash from wildfires and civil unrest targeting outside diners make outdoor gathering unhealthy and dangerous. There is no public health emergency exception to the U.S. Constitution nor the free exercise clause of the First Amendment, she said, citing Berean Baptist Church v. Cooper, 4:20CV00081 (E.D.N.C. May 16, 2020). The Berean court stopped the government from taking enforcement actions against those gathering for religious worship.

"Los Angeles County has not vigorously policed its stated ban on small gatherings with friends or extended family. Yet, despite the county's lack of enforcement, the county's policy threatens enforcement against the upcoming holiday of a religious minority faith," Taub wrote. "Los Angeles County appears to favor First Amendment guarantees when applied to hundreds of thousands of its citizens marching in close proximity, singing, chanting and looting, but would single out a small Jewish family peacefully sharing a meal with friends or extended family inside their own home."

The county's enforcement order targeting the Jewish community's traditions and religious observances won't withstand strict scrutiny as it is not the least restrictive alternative for fulfilling its interests, Taub wrote.

"The fact that they're threatening to do this and listing this as an example of prohibited conduct in this context is just disrespectful," Taub said in an interview Thursday. "Why have this language at all? The fact they changed their language once is an admission that it wasn't proper."

UCLA law professor Eugene Volokh, who is not a party to any COVID-19 challenge filed by religious groups, said he believed the county must be able to prohibit such home gatherings, including religious ones, "partly because an exception for religious gatherings would swallow the rule."

"If people have a right to gather at someone's home for Rosh Hashanah, they'd be equally able to get together at someone's home for Bible study or Shabbat dinner or any other gathering that they can plausibly say has religious significance to them," Volokh said. "And unlike in churches and other public places, where at least in theory there could be monitoring to make sure various social distancing and masking rules are followed, they can't feasibly be done in people's homes."

If the county has the power to limit gatherings inside homes, which the courts would likely say that it does, the county must be able to state so categorically, with no religious worship exception, Volokh reasoned.

"Of course, practically speaking, the County has very limited practical power to enforce these rules," Volokh said.