Among the beachgoers denied, the indignant gun shop owners and frustrated parents who want schools reopened, one set of plaintiffs against Gov. Gavin Newsom’s pandemic shutdown restrictions have scored a big win: churches.
A 6-3 U.S. Supreme Court ruling issued late Friday (Feb. 5) sided with house-bound pastors and their congregants in their claim Newsom’s bans on worship services in an effort to stop the spread of coronavirus unfairly singled out churches, in violation of the First Amendment.
“Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses.” wrote Justice Neil M. Gorsuch in one of three concurring opinions. “California worries that worship brings people together for too much time. Yet, California does not limit its citizens to running in and out of other establishments; no one is barred from lingering in shopping malls, salons, or bus terminals,” wrote Justice Neil M. Gorsuch in one of three concurring opinions.
The court said the state could limit worship service capacity to 25% and prohibit singing and chanting.
“Today the court displaces the judgments of experts about how to respond to a raging pandemic,” wrote Justice Elena Kagan in a dissent. “The court orders California to weaken its restrictions on public gatherings by making a special exception for worship services.”
That still leaves plenty of plaintiffs who have filed other challenges to the state’s restrictions, including irked gun store owners, frustrated gym trainers and irate parents who want schools reopened despite the pandemic.
Wedding plans ruined
And, not to be forgotten, an extremely disappointed bride-to-be. Among those filing to challenge the state’s response to the coronavirus pandemic, Monica Six, an Orange County resident, is suing California’s Democratic governor for civil rights violations after his executive order “caused her significant financial hardship as well as ruined her idyllic wedding plans to get married in a special anniversary.”
In suing the state, Six is in crowded company. As of mid-January 2021, the State of California, and Newsom in particular, have been the target of 64 lawsuits over their response to the coronavirus pandemic. About 50 remain active.
The courtroom backlash is no surprise. The restrictions imposed on California civic and economic life are without precedent in state history. Partial reopenings in many counties led to coronavirus spikes, which in turn prompted some retreat back to restrictions. Many health experts say such drastic measures have been necessary to keep hospitals from being overwhelmed and more Californians from dying.
But drastic measures they are. Beyond shuttered school houses and canceled weddings, it has spelled financial calamity for households, business owners, nonprofits and city governments across the state. They have also tested the limits of executive power and the negotiability of many constitutional rights.
Many of the lawsuits against Newsom challenge the broad restrictions imposed by the shelter-in-place orders. Others contest the governor’s offer of state assistance to undocumented immigrants, his targeted closure of beaches in Orange County, the refusal to list gunshops as essential services and the arrest of two protestors.
Though the state has taken flak from an array of aggrieved Californians — gondoliers, conservative politicians and a Butte County musician reduced to playing his saxophone over Zoom are among the plaintiffs — there is a common denominator for many of these lawsuits: Her name is Harmeet Dhillon.
The San Francisco attorney and Republican Party bigwig is representing plaintiffs in many of the suits.
The governor, Dhillon said, “went from ‘let’s flatten the curve for two weeks’ to ‘let’s put everyone under house arrest until we find a cure.’”
Roughly 3 million Californians have tested positive for the virus thus far and more than 33,700 have died of COVID-19, the respiratory disease it causes. Dhillon has said she does not make light of that tragedy, but does not believe it justifies shuttering society.
“We do not shut down our highways because people die in car accidents,” she said. “We do not ban commerce because people die of lung disease after buying cigarettes. There’s a whole range of health issues that we manage with an acceptable level of risk.”
Public health experts argue that because the coronavirus is so contagious, unlike car accidents and lung cancer, “managing” the risk of an overwhelmed medical system requires tighter restrictions on social control.
A study published with the National Bureau of Economic Research estimated that the state’s shelter-in-place order resulted in 1,661 fewer deaths, which, the authors reasoned, works out to “about 400 job losses per life saved.”
Dhillon has long played the role of counterpuncher to the progressive ambitions of state Democrats, who now hold every state constitutional office and a big supermajority in the Legislature. When lawmakers passed a bill requiring President Donald Trump to publish his taxes in order to appear on the ballot, it was Dhillon, the Republican Party’s national committee chair from California, who filed suit on behalf of the California GOP. Last year, she sued Secretary of State Alex Padilla for, she argued, failing to do enough to exclude non-citizens from county voter rolls.
Along the way, Dhillon has cobbled together a small phalanx of California Republicans to help her wage war against the liberal powers that be. Mark Meuser, who ran for Secretary of State in 2018 on an anti-voter-fraud plank, is on her team. In a handful of the pandemic-era cases, she’s joined by Bill Essayli — a young former prosecutor who unsuccessfully ran for Assembly in 2018.
Even when she isn’t suing the state, Dhillon’s name has a way of popping up whenever a new culture war flashpoint breaks out in California.
Recall when software engineer James Damore sued Google after being fired for circulating a memo asserting that the underrepresentation of women in tech had a biological basis? Or the student groups who took UC Berkeley to court for cancelling a planned talk by conservative firebrand Ann Coulter, citing security concerns? Or the Trump supporters in San Jose who got roughed up by counter protesters then sued the police? Or the Orange County anti-abortion activist who sued a former Planned Parenthood doctor for bad mouthing him during a TEDx talk?
Dhillon is the plaintiffs’ lawyer in each of these cases.
Dhillon is in fact a regular on the conservative media circuit. She’s a contributor to Fox News and a frequent guest on that network’s “Tucker Carlson Tonight,” and the “Ingraham Angle,” whose host, Laura Ingraham, Dhillon has cited as a “long time mentor.” At the Conservative Political Action Conference last year, Dhillon earned what might be the most coveted of all endorsements on the American right: “She’s a great lawyer,” President Donald Trump said to Hayden Williams, a conservative activist who was physically assaulted on UC Berkeley’s campus. “Sue the college, the university, and maybe sue the state.”
She hasn’t. “Not yet,” she said.
Born in India, Dhillon grew up in North Carolina before going to Dartmouth where, like many members of the American right’s intelligentsia, she edited the Dartmouth Review.
After going to the University of Virginia law school and working at various firms in New York and London, she opened her own office in San Francisco in 2006. Though her views have skewed right all her life, with a practice in the Bay Area, she has not always seamlessly fit in with the rest of her party.
For one, there’s the fact that she is a Sikh woman of color in a party dominated by white men.
During the height of the War on Terror, she sat on the board of the American Civil Liberties Union’s northern California chapter, to the chagrin of some GOP stalwarts. When she ran for state Senate in San Francisco in 2012, she made an effort to steer clear of incendiary social issues like abortion.
You don’t hear much aversion to controversy from her these days.
In fact, more shutdown lawsuits against Newsom may soon be on the way. Dhillon said her office has been inundated with requests from potential clients.
‘People are getting fed up’
“We have some quality control. We don’t just crank these out like sausages, even if it seems that way” she said. “People are getting fed up.”
Many of the cases brought by Dhillon are paid for by a nonprofit she founded, the Center for American Liberty. Dhillon said her law office is one of many hired by the Center and that her office in turn works with other clients.
Funding for the center, which pays for her office’s legal services, comes from individual donors whose contributions to the nonprofit are tax exempt. Dhillon said that she is probably the top donor and that “more than 50 percent” of the center’s money comes from her seed funding and three other major donors, whom she would not name.
Filings with the IRS show that the center, under its prior name Publius Lex, received less than $50,000 in contributions in 2018 and was therefore not required to itemize its contributors. The filing for 2019 has not yet been made available.
Since the pandemic began, Dhillon said that the nonprofit has received tens of thousands of dollars in donations, but that the legal bill incurred by repeatedly suing the state “significant exceeds” that figure.
“I haven’t been paid a penny for these cases yet,” she insisted. “I’m not sure I will be.”
Many of the lawsuits filed against California’s shelter-in-place order are funded in part by conservative-leaning nonprofits. One of the challenges to Gov. Newsom’s allocation of state funds to undocumented immigrants is supported by Judicial Watch Inc, a longtime legal antagonist of Bill and Hillary Clinton, which recently sued the U.S. Department of Justice for information regarding ties between former Vice President Joe Biden and Ukraine.
Other nonprofit backers of the cases filed against California include the National Center for Law & Policy, which made headlines in 2015 when it sued the Encinitas public school district for treating its students as “religious ‘guinea pigs’” by subjecting them to yoga classes, and Freedom X, a Los Angeles-based organization that lists combating “intellectual McCarthyism” and “creeping Sharia” as its main campaigns.
As for the lawsuits challenging COVID restrictions, Erwin Chemerinsky, dean of the UC Berkeley law school, contends they face long odds.
“Simply put, these lawsuits are very likely to lose, as most of these challenges around the country have failed,” he said in an email. “The government has broad powers to take emergency actions to stop the spread of communicable diseases. This includes the power to order quarantine or shelter in place, to order closure of businesses, and to limit assemblies, including for religious purposes. So long as the government’s action is reasonably related to stopping the spread of COVID-19, the government is likely to prevail.”
Dhillon said she is playing the long game. As judges have slapped down her petitions to put the statewide order on hold — she said their rationales were “fairly lacking in analysis” — she may appeal to a higher court.
“One day I hope to find a judge in California who has a similarly broad view of the Constitution,” she said.
This lawsuit tracker is reported by Ben Christopher and created by web developer John Osborn D’Agostino.
CalMatters.org is a nonprofit, nonpartisan media venture explaining California policies and politics.