US judge denies churches’ restraining order on stay-home orders

A federal judge on Wednesday tentatively denied a temporary restraining order filed by a group of church pastors hoping to block what they say is unequal enforcement of the state's stay-at-home order.

Judge Jesus G. Bernal of the Central District of California tentatively sided with lawyers for Attorney General Xavier Becerra and Gov. Gavin Newsom, finding the state has executive authority to provide for emergency remedies, which could infringe on fundamental constitutional rights. Even if that weren't the case, Bernal said, a rational basis test would apply to evaluate the state's orders, rather than the strict scrutiny standard.

Plaintiffs' lawyer Harmeet K. Dhillon of Dhillon Law Group in San Francisco filed the lawsuit challenging how far the state and local governments could restrict normal activities, particularly constitutionally protected ones, such as religious gatherings. Wendy Gish v. Newsom, 5:20-CV-00755 (C.D. Cal., filed April 13, 2020).

In her arguments Wednesday during the teleconference hearing, Dhillon questioned why there are restrictions for churches that aren't being applied to commercial entities as long as they practice social distancing.

Deputy Attorney General Todd Grabarsky contended the allowed essential activities aren't for prolonged periods of time, and the secular activities, like quick restaurant takeouts or grocery shopping, aren't analogous to church gatherings inside a building for a longer period of time.

"What plaintiffs want is large groups of people gathering indoors, sharing a communal experience, coming together for the same time inside the same enclosed space," Grabarsky said. "The proper comparison is with similarly situated activities like theaters, schools, concert halls, sporting events, dining rooms, jury trials and all of those secular gatherings which are prohibited by the state's order."

Given the devastating impact of COVID-19, California is fortunate to have done the best job it could in minimizing the spread of the virus, due in large part, to the stay-at-home orders, argued Grabarsky. Any harms plaintiffs claim to suffer are significantly outweighed by the harm that threatens the public, which is severe illness and death to large groups of people, he said.

Dhillon said religious activity cannot be compared to a concert, a music festival or some other frivolous entertainment. The state should expand the limited rights allowing secular activities to also be extended for religious purposes, and not characterize them as entertainment or concerts, she said.

"It's clear we don't have law of general applicability, and there are so many evolving exceptions that was cited in the state's opposition," Dhillon said. "There must be a rule of general applicability to be applied to those of faith, and allow them to practice the way secular activities are allowed."

The state's orders have been rapidly evolving, and there are no temporary limitations assigned to some essential activities that abide by the rules of general applicability, Dhillon argued. For instance, the order could set time limits for a shopper to purchase groceries or set a cap on the number of shoppers inside a store at a time, but that's not the case here, she argued. Dhillon warned that absent the consistency in rules, some churchgoers could take advantage of loopholes within the state's orders and eventually hold underground services.

"My clients aren't seeking to be exempt from the shutdown. Instead, they're just asking for the least restrictive aspect of the orders -- social distancing and limited gatherings -- to be permitted," Dhillon said. "They've been willing to submit themselves to reasonable restrictions, but we're not dealing with a short epidemic. We're dealing with, according to some analysis by the governor, a situation that will last into next year. We ask the least restrictive means necessary as required under strict scrutiny be allowed."

Most Californians don't have bandwidth or teleconferencing access to use videoconferencing in lieu of physically attending church, Dhillon argued.

"Someone who wanted to hold a gathering could technically do it at a Costco, do it 6 feet apart and stay for an hour," Dhillon countered. "There are no restrictions on that. What we're seeking is a uniform rule about occupancy and duration in secular institutions. To say there's one rule for churches or mosques or synagogues versus a Walmart doesn't pass the rational basis scrutiny or strict scrutiny standard."

Bernal said he would issue an official ruling within two days but congratulated both sides for their arguments.

"This is probably the best argument I've had in a teleconference of all hearings I've had so far," he said.

Bernal said he would also consider Dhillon's request for a preliminary injunction hearing in the future, as there is no date for when the state's restrictions will be lifted.