9th Circuit OKs ban on indoor religious services in some counties

A federal appeals court upheld Monday a ban on indoor church services in counties in the most restrictive tier of California's reopening blueprint.

Rejecting claims that other essential activities are allowed to operate more freely, the 9th U.S. Circuit Court of Appeals found that the state's plan does not discriminate against religious worship and is warranted to curb the spread of COVID-19.

"It is difficult to see how allowing more people to congregate indoors will do anything other than lead to more cases, more deaths, and more strains on California's already overburdened health care system," Judge Kim M. Wardlaw wrote in a unanimous opinion.

South Bay United Pentecostal Church attorney Paul Jonna said an appeal for an emergency injunction was filed to the U.S. Supreme Court, requesting relief by Sunday.

"If it's OK for Costco, it's OK for churches," the LiMandri and Jonna LLP partner said.

Harvest Rock Church and plaintiffs' attorney Mat Staver of the Liberty Counsel, who also sought to block the state's reopening blueprint but were denied by the federal appeals court, said in a statement that they will similarly appeal the ruling. Harvest Rock Church, Inc. v. Newsom, 20-cv-06414 (C.D. Cal., filed July 17, 2020).

"We will return to the Supreme Court for the second time," the statement read. "California's total ban on worship since July 13 is the most severe in the country."

While the three-judge panel ruled that the state sufficiently proved that its restrictions are necessary in the hardest-hit regions of the state since religious gatherings encourage large groups of people to congregate together for extended periods of time, it also ruled that Gov. Gavin Newsom cannot place limitations on indoor services against Harvest Rock Church or its member churches in counties in less restrictive reopening tiers, such as Trinity, Mariposa and Alpine.

California's orders, Wardlaw said, met the heightened standards to uphold restrictions on constitutionally protected activities that the U.S. Supreme Court set in November when it struck down New York's limits on religious services. The high court found in that case that New York implemented rules that were more restrictive on synagogues and churches than on comparable secular entities, such as grocery and alcohol stores and bicycle repair shops. Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020)

Unlike in New York, the 9th Circuit panel concluded that Newsom's plan does not single out indoor worship for unconstitutionally restrictive treatment. South Bay United Pentecostal Church v. Newsom, 20-cv-00865 (S.D. Cal., filed May 8, 2020).

Responding to claims that retail and grocery stores are unfairly allowed to operate more freely indoors, Wardlaw found that California sufficiently proved that they pose a lower transmission risk since they do not involve people congregating to participate in a group activity.

The three judge-panel made identical conclusions over plaintiffs' claims that the personal care, public transportation and film production industries, among others, got preferential treatment. It adopted much of the reasoning by the Supreme Court when it enjoined New York's orders that the question of when restrictions on certain activities should be lifted during the pandemic is a "fact-intensive matter subject to reasonable disagreement" and that local officials' authority should be especially broad.

"Indeed, the state treats religious services more favorably than several of these comparable secular activities," Wardlaw wrote.

But Jonna challenged the panel assessing the risks imposed by California's order since the case should solely be decided on whether religious groups are treated differently than other essential entities, he said.

"The same exact case was made to the Supreme Court by New York -- that we have all these experts who said why churches are more dangerous," he said. "It rejected all of that and basically just focused on the narrow constitutional question."

In a separate concurrence by Judge Diarmuid F. O'Scannlain in denying Harvest Rock Church's motion for a preliminary injunction, he denounced the circuit for issuing decisions "woefully out of step" with court precedent on indoor religious worship cases. He found that California has not narrowly tailored its reopening measures so that they do not discriminate against church services.

"A simple, straightforward application of these controlling cases compels what should be the obvious result here: California's uniquely severe restrictions against religious worship services -- including its total ban against indoor worship in nearly the entire state -- are patently unconstitutional and should be enjoined," he wrote. "The court's refusal to do so in South Bay cries out for correction."