Church attendance ruling not likely to have much influence

Among the many constitutional and other legal issues which have arisen and will arise from the coronavirus, perhaps the most attention has been paid to the governmental actions prohibiting in-person church services. It has been forcefully contended that the free exercise clause of the First Amendment is violated by regulations that inhibit or prevent in-person attendance at worship.

The 9th U.S. Circuit Court of Appeals decided a case on May 22 in which it firmly rejected First Amendment arguments which contested the application of San Diego County's stay-at-home ordinance to religious services. It is not likely that the holding will have much influence. South Bay United Pentecostal Church v. Newsom, 2020 DJDAR 4844.

The South Bay United Pentecostal Church, Chula Vista normally holds three to five services every Sunday. Its sanctuary has a capacity of 600; around 300 persons attend each service.

Governor Gavin Newsom's Reopening Plan in four stages categorized churches as "high risk" and placed them in Stage 3. The church contended that it should have been placed in Stage 2, which would have allowed it to open along with retail businesses and dine-in restaurants. The plan explicitly places "churches" in Stage 3.

The church was arguing on appeal to upset the decision of the district court, which had held on May 15 that the order was justified because the church's services "involve people sitting together in a closed environment for long periods of time." Similar restrictions were imposed on secular entitles by the order.

Responding to free exercise arguments, the district court noted that "individuals can practice whatever religion in whatever way they wish, as long as they are not sitting with each other in large groups inside."

On the church's appeal, which involved procedural issues, a three-judge panel of the 9th Circuit jumped over the process issues, and made its decision on the merits by a 2-1 vote, specifically finding that the state's action did not violate the First Amendment.

The majority gave short shrift to the church's argument that the constitutionality of the government's action should be scrutinized under a high level of judicial scrutiny. Citing the important Supreme Court authority of Church of Lukumi Babalu v. Hialeah, it found the protested action to neither infringe religious practices nor selectively impose burdens on religion. Those findings precluded detailed review of the regulatory action.

Its analysis of the facts consisted of one sentence, "We're dealing here with a highly contagious and often fatal disease for which there is presently no known cure."

Possibly because its entire discussion of the merits and its conclusion occupied no more than two sentences, the court threw in a 1949 quote from Justice Robert Jackson, "if a court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." Presumably that quotation was meant to highlight the fact that the U.S. Constitution contains no emergency clause, which would expressly allow invasion of rights in times of extreme need. (The constitutions of many Western countries adopted during the 20th century contain such provisions, which increase executive powers at the expense of rights during an emergency.)

The dissent is considerably longer, more scholarly and more detailed than the majority opinion. Judge Daniel Collins rejected the idea that the coronavirus emergency gave the governor the power to limit constitutional rights. Quoting authorities on a number of points, he pointed out that the regulation in issue categorically assigned all churches to Stage 3 regardless of the number of participants, the space available, or any safety protocols followed. Churches were assigned to State 3 along with "movie theaters" and "personal & hospitality services." There was a complete failure to consider the distinctive nature of religious bodies.

That failure to consider details was considered to be not neutral but discriminatory against religious entities, which subjected the regulation to strict scrutiny. The dissent found that the objects of the regulation could be achieved with a lesser burden on the church. Since the law was not narrowly tailored, it failed strict scrutiny.

The church had argued that the measures it would impose on itself if allowed to reopen met the objectives the regulation sought. The majority declined to consider these measures.

But a footnote to the dissent suggests that the case was moot even as it was being published.

Earlier that day, the Centers for Disease Control and Prevention issued an "Interim Guidance for Communities of Faith." In six pages it detailed practices and standards which churches should follow, paying proper deference to Constitutional standards, and the importance of worship in the life of the nation.

"The federal government may not prescribe standards for interactions of faith communities in houses of worship, and in accordance with the First Amendment, no faith community should be asked to adopt any mitigation strategies that are more stringent than the mitigation strategies asked of similarly situated entities or activities."

And on May 25, Gov. Newsom issued new guidelines for California religious services. On May 26 the Orange County Board of Supervisors passed a resolution declaring religious services "essential," and questioning whether the governor's restrictions on religious observance were to limiting.

The actions cited are only exemplars of many such actions being taken currently nationally by state and local governments. This compels the thought that what the 9th Circuit decides about the application of the free exercise clause to the coronavirus struggle is not very important.

The public has spoken, and state and local governmental officers and official bodies are working hard to reflect the popular view that traditional means of worship should not be materially impacted. Officeholders dependent on the voters have clearly decided that their best course is not to offend the religious establishment. (Dr. Fauci loses again.)

Leaving open the question of enforcement: Churches reopening do so subject to specific codes of defense against the virus. Will local authorities enforce these codes if they are not followed? (Services in two northern California counties that had opened up resulted in local increases in infection.)

But back to the court: In one respect the decision of the 9th Circuit panel reflects the division in the national politics of the coronavirus. The two judges in the majority were appointed by Presidents Bill Clinton and Barack Obama. The dissenting judge, Collins, was appointed by the current occupant of the White House, and confirmed in the fall of 2019 by a 53-46 vote in the Senate. That vote occurred after Sen. Dianne Feinstein vigorously decried the appointment. She (and Sen. Kamala Harris) were incensed by the fact that the Senate Republican majority did not acknowledge that neither of California's two senators had submitted "blue slips," not objecting to the appointment, a Senate practice now being regularly ignored. Judge Collins fits the pattern of current appointments: a committed conservative, a former clerk to the late Justice Antonin Scalia, and, at the time of his appointment, a partner in what Scalia referred to as a "high rise law firm" (Munger Tolles & Olson LLP).

Judge Collins may have lost the vote on the Court of Appeals panel, but his side of the argument has very quickly turned out to be the winning one.

And as to the free exercise clause, it appears to be a winner. As to those battling to limit the coronavirus, it remains to be seen. 