Lawyers for churches say US Supreme Court's support of governor's orders is not final word

This weekend's reopening of churches around the state -- many of them pledged to disregard Gov. Gavin Newsom's orders banning them from meeting -- appeared to lead to few confrontations with authorities. Attorneys representing churches who want to reopen said the U.S. Supreme Court's ruling in Newsom's favor Friday is not the last word.

The high court declined to overrule Newsom's executive order that kept churches from having services for more than 100 people on Sunday. Chief Justice John Roberts, appointed by President George W. Bush, joined with the high court's four liberals to cast the deciding vote declining to enjoin Newsom's latest order, which limits churches to 100 people or 25% of capacity, whichever is smaller. The appeal, South Bay United Pentecostal Church v. Newsom, 2020 DJDAR 4844, was filed by a San Diego County church with thousands of members.

In a emailed, Charles S. LiMandri with LiMandri & Jonna LLP, called the ruling "disappointing" but noted it was only a ruling on a temporary restraining order. LiMandri, who also serves as litigation counsel for the Freedom of Conscience Defense Fund, is listed as lead attorney for the plaintiffs.

"This is not a decision on the merits of the case, there is still a split in the circuit courts of appeal, and this case is far from over," LiMandri said. "We will proceed with our expedited appeal in the 9th Circuit and, if necessary, seek a decision from the U.S. Supreme Court on the merits under a much more favorable standard."

The appellate split LiMandri was referring to includes the 9th U.S. Circuit Court of Appeals ruling in South Bay, which led to the Supreme Court appeal. Meanwhile, in Roberts v. Neace, 20-5465 (6th Cir., filed May 5, 2020), the 6th Circuit panel found Kentucky Gov. Andy Beshear's order relating to churches went too far and violated the plaintiffs' constitutional rights.

In a dissenting opinion joined by Justices Clarence Thomas and Neil M. Gorsuch, Supreme Court Justice Brett M. Kavanaugh wrote that Newsom's order "violates the First Amendment."

"The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap," Kavanaugh wrote before going through a list of business that had been allowed to open, including "cannabis dispensaries."

"As a general matter, the 'government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits,'" Kavanaugh added, citing McDaniel v. Paty, 435 U. S. 618, 639 (1978).

The cap Newsom instituted appeared to be tougher on large churches like South Bay, which regularly hosts multiple services per weekend in its 600-seat facility.

Another plaintiffs' attorney on the complaints, Harmeet K. Dhillon, noted South Bay is one of several federal cases challenging Newsom's orders on church attendance. Other cases are seeking to overturn similar orders in New Jersey and Virginia.

"All of these cases are proceeding in federal court," said the founder of Dhillon Law Group Inc. in San Francisco, adding that Friday night's ruling was "procedural."

She noted the plaintiffs have also been aiming at a moving target. Newsom loosened his policies closing churches last month after a series of statements and policy guidance from President Donald Trump and Attorney General William Barr.

Dhillon also praised the courts for their speed in hearing these cases.

"How many people file a case in May and get a ruling from the United State Supreme Court in May?" she said. "It was very accelerated, and I think that goes to the importance of the issues here."

The disputes between Newsom and his critics have led to confrontations, including one in which the landlords of a Lodi church changed the locks in order to prevent services from being held after police broke up a church service.

But there was little indication of unrest between authorities and the pastors on Pentecost Sunday. Many smaller churches reopened and followed Newsom's orders on wearing face masks, spacing worshippers out among the pews, and limiting the numbers who entered the sanctuaries.

A spokesperson for Advocates for Faith & Freedom, which is involved in the ongoing litigation, declined to answer questions about Sunday services, noting a local curfew order.