A viable challenge to California’s ban on religious services?

The COVID-19 pandemic has caused states to impose unprecedented restrictions on their citizens, leading to a perhaps equally unprecedented wave of lawsuits. While these lawsuits have challenged many aspects of the states' COVID regulations, state limits on worship services have arisen as a key flashpoint. When the debate reached the U.S. Supreme Court this summer, a divided court denied churches' requests for relief.

To many observers, that ruling signaled that other suits challenging similar restrictions were doomed to fail. But as this article will explain, new developments in one of those cases -- and in the Supreme Court itself -- could pave the way for a different outcome.

South Bay United Pentecostal Church v. Newsom

In South Bay United Pentecostal Church v. Newsom, the public had its first glimpse into the Supreme Court's -- and in particular Chief Justice John Roberts's -- view of state limits on religious services. The church in South Bay sought to enjoin California's guidelines, which at the time allowed religious services but limited attendance to 25% of building capacity and no more than 100 attendees.

The Supreme Court denied the request, with Chief Justice Roberts casting the deciding vote. In a concurring opinion, Chief Justice Roberts wrote that California's restrictions "appear consistent with the Free Exercise Clause of the First Amendment." He noted that "more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances," while businesses not subject to the limits -- such as grocery stores, banks, and laundromats -- were "dissimilar."

Justice Brett Kavanaugh, joined by two other justices, dissented, arguing that California's guidelines discriminated against places of worship in violation of the First Amendment. "The basic constitutional problem," he wrote, "is that comparable secular businesses" -- such as restaurants, shopping malls, hair salons, and cannabis dispensaries -- were not subject to the cap.

As a bellwether, the Supreme Court's South Bay decision didn't bode well for other litigation challenging state restrictions on worship services. Even so, litigation over various states' restrictions has continued apace.

Harvest Rock Church, Inc. v. Newsom

At the very least, one might have thought that South Bay settled the question of California's limits on religious services. But California has since updated its extensive array of COVID regulations, prompting a new lawsuit on the heels of the Supreme Court's ruling in South Bay.

Despite being filed just over a month after South Bay, Harvest Rock Church, Inc. v. Newsom challenges a new (and evolving) set of restrictions in the Golden State. In particular, the new suit challenges the state's ban on indoor "singing and chanting," as well as its decision to once again completely ban indoor worship services for millions of Californians living in counties assigned to the state's top risk tier.

Harvest Rock claims these limits draw an arbitrary line between houses of worship and other activities. For example, the new guidelines allow churches to use church premises with no numerical cap to provide "necessities of life" such as food, shelter and counseling. Yet if the same people in the same building engage in religious worship, they violate the governor's orders and risk criminal fines.

Those differences did not sway the district court, however, which denied Harvest Rock's motion for a preliminary injunction. Tracking Chief Justice Roberts's rationale in South Bay, the district court reasoned that "religious activities are only restricted similarly to or less than comparable non-religious activities." And as for the state's allowing churches to provide food, shelter and counseling with no numerical cap, the district court said those activities were "analogous to a grocery store, not an indoor event such as a concert," and the court had to deter to the state's determination that those services were essential.

This past Thursday, a divided motions panel of the 9th U.S. Circuit Court of Appeals denied Harvest Rock's request for a temporary injunction while the appeal plays out. In the majority's view, the orders "apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters."

Dissenting from the motion's denial, Judge Diarmuid O'Scannlain wrote that in the same counties where indoor worship services are banned, "the State still allows people to go indoors to: spend a day shopping in the mall, have their hair styled, get a manicure or pedicure, attend college classes, produce a television show or movie, participate in professional sports, wash their clothes at a laundromat, and even work in a meatpacking plant."

Prospects in the Supreme Court

Now that the 9th Circuit has denied Harvest Rock's injunction request, the church may seek temporary relief from the Supreme Court. Such a request might seem a lost cause, given Chief Justice Roberts's position in South Bay. But as noted, Harvest Rock's claims challenge a new set of limits.

California justifies banning religious services because those services involve gatherings of people from different households meeting close together for a long time. And, the state says, the risk of transmission increases when people speak, chant and sing near one another indoors. But as Judge O'Scannlain noted, many exempted activities "involve gatherings of people from different households for extended periods of time -- in many cases, hours on end." Many -- like haircuts and manicures -- are carried out in close proximity. And some "involve speaking loudly or shouting -- for example, on an indoor television studio set filled with actors projecting lines and directors barking orders."

Perhaps most telling, California allows a church in a Tier 1 county "to host a group of people for some non-religious purpose"--such as food service, daycare services, and counseling -- "but the same church would be prohibited from hosting an event for the same people in the same setting for the same length of time simply if it were for purposes of religious worship."

The panel majority offered no answer to this point. The district court, however, did. According to the district court, the non-religious activities could be exempted because "the Governor has determined that these activities are essential services, and therefore must be exempted" -- and that determination "is entitled to this Court's deference." But such reasoning is problematic. It is one thing to compare the relative health risks of religious and secular activities, as the chief justice did in South Bay. But it is quite another for a secular court to find that non-religious activities on church premises are "essential" while religious activities are not.

Judge O'Scannlain makes a strong case. But it seems doubtful Harvest Rock's nuances will be enough to persuade Chief Justice Roberts to change his view. Soon, however, Chief Justice Roberts might no longer be the decisive vote. If the Senate confirms Amy Coney Barrett to fill Justice Ruth Bader Ginsburg's seat, the new justice could join with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Kavanaugh to grant relief to religious groups.