Judge appears ready to order San Francisco to allow arts festival

U.S. District Judge James Donato resisted ruling Thursday on whether to dismiss a lawsuit testing the fairness of San Francisco's pandemic restrictions.

San Francisco International Arts Festival plans to host an outdoor event in May. The organizers argued that they should be allowed the same rights as similar constitutionally protected activities such as religious gatherings and political protests.

The city has maintained that outdoor recreational performances pose an unacceptable risk of spreading coronavirus. It's pointed to Gov. Gavin Newsom's orders limiting outdoor gatherings to 12 people from no more than three households.

Although Donato has said there's likely an equal protection issue, he refused to issue a final ruling until he's had a chance to conduct settlement discussions.

"If you insist, I'll make the call," he said. "I'm trying to give you the option of working this out."

Plaintiffs' attorney Matthew W. Kumin said the judge was "trying to walk a fine line" between hampering San Francisco's efforts to curb the spread of the virus and ensuring that the arts are afforded the same protections as religious and political activities.

"He just doesn't want to tie the city's hands right now," the Oakland-based attorney said.

Mayor London Breed's office did not immediately respond to requests for comment.

The dispute stems from San Francisco revoking the festival organizers' permit to host outdoor performances for 49 people at a time. San Francisco International Arts Festival v. Breed, 20-cv-07314 (N.D. Cal., filed Oct. 19, 2020).

During the Thursday Zoom video hearing, Donato praised both sides for resolving a dispute in October over whether he should issue a temporary restraining order forcing the city to allow the event. He asked why they are back.

"For reasons beyond me, the city refuses to recognize the right of these activities to go forward with reasonable restrictions," Kumin replied. "For some reason, they don't want to put us in the same tier as these other First Amendment activities."

Consistent with Newsom lifting the regional stay-at-home order on Monday and reinstating the tiered reopening plan, Breed removed the 200-person cap on outdoor religious and political gatherings.

Donato inquired whether the city could tell festival organizers what restrictions might look like a month ahead of the May event.

"The landscape is shifting, both in terms of infection rate and new variance," Deputy City Attorney Tara M. Steeley responded. "We can't say for anyone what the rules will be."

The judge, unsatisfied, indicated that he's inclined to issue an order that the city tell the plaintiff the restrictions on hosting its event by April 1. He said he'll have "a slightly jaundiced eye at any response like 'we don't know.'"

But Kumin, citing the U.S. Supreme Court ruling in November finding that constitutionally protected activities demand heightened protections, said the arts should be allowed to operate in the same fashion as religious and political groups. Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020).

"Why don't we have parity?" he asked.

California and San Francisco, Steeley countered, are simply not allowed to authorize festivals.

Noting the stalemate, Donato agreed to facilitate nonbinding settlement discussions. He said he would revisit dismissing the lawsuit and issuing an injunction that would block San Francisco from barring the festival if they are unsuccessful.

Several lawsuits have been filed on behalf of religious groups challenging pandemic restrictions. They were largely unsuccessful until the high court's ruling striking down New York's limits on religious services. It found in that case that the state 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.

The order has forced lower courts to revisit litigation by religious groups seeking equal treatment.