Victorious churches aim to fight more limits

Churches that secured a major victory against California's COVID-19 health orders when the U.S. Supreme Court blocked the state from enforcing a ban on indoor services are not done challenging restrictions on religious services. They will also look to overturn capacity limitations and a prohibition against indoor singing and chanting.

"We're advocating for a position that churches should be treated like essential businesses," said Paul Jonna, an attorney for South Bay United Pentecostal Church and a partner at LiMandri & Jonna LLP.

Gov. Gavin Newsom on Saturday issued revised guidance lifting a complete ban on indoor services in areas with widespread or substantial spread of the coronavirus to allow for attendance of up to 25% of a building's capacity. Indoor services in areas with moderate or minimum spread are allowed up to 50% capacity.

"We will continue to enforce the restrictions the Supreme Court left in place and, after reviewing the decision, we will issue revised guidelines for worship services to continue to protect the lives of Californians," the governor's spokesman, Daniel Lopez, said in a statement.

In a momentous ruling over the governor's authority to restrict constitutionally protected activities during the pandemic, the high court in an unsigned opinion cleared the way for churches to hold indoor services until their lawsuits are resolved while maintaining capacity restrictions and a prohibition on singing and chanting. The justices were responding to emergency appeals from South Bay United Pentecostal Church and Harvest Rock Church after the 9th U.S. Circuit Court of Appeals upheld the state's restrictions.

Harvest Rock Church attorney Mat Staver was optimistic that the 9th Circuit will agree to strike down the ban on singing and chanting now that there's guidance from the Supreme Court. South Bay United Pentecostal Church v. Newsom, 20-cv-00865 (S.D. Cal., filed May 8, 2020); Harvest Rock Church, Inc. v. Newsom, 20-cv-06414 (C.D. Cal., filed July 17, 2020).

"We'll have five justices with us on that," he said.

Justice Neil Gorsuch, in a separate statement joined by Justices Clarence Thomas and Samuel Alito, indicated that he would allow churches to reopen without any limitations.

"Today's order should have been needless; the lower courts in these cases should have followed the extensive guidance this court already gave," he wrote.

While he acknowledged that California has expressed understandable concern that singing increases spread of the virus and has similarly banned it at indoor private gatherings, schools and restaurants, the justice noted that the state's entertainment industry is exempted. He found that the policy does not meet the heightened standard to uphold restrictions on constitutionally protected activities that the Supreme Court set in November when it struck down New York's limits on religious services since Newsom denied religious groups the same opportunity as movie studios. Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 DJDAR 12626 (Nov. 25, 2020).

"Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a Plexiglas shield," he reasoned. "Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in."

Justices Amy Coney Barrett and Brett Kavanaugh, meanwhile, found that churches have to prove they are entitled to relief from the singing ban. She said it remains unclear whether it applies across the board or favors certain industries, inviting further briefing on the issue.

Harvest Rock Church will challenge the restriction when the 9th Circuit considers its request for an injunction. South Bay United Pentecostal Church will also seek to have a district court judge overturn the policies.

"The first three would've granted it on record as it exists, and the last two are of the same opinion, but they want more clarification in terms of the exemption," Staver said. "If it is exempted, they will rule with the other three."

Meyers Nave attorney Deborah Fox, who's successfully defended stay-at-home orders in unrelated lawsuits on behalf of the state, cautioned against the precedent it would set if churches prevail in knocking down the prohibition on singing indoors. She warned other constitutionally protected groups, including political activists and artists, could seek similar relief.

"We're going to see more lawsuits for other First Amendment protected activities," she said, noting a case in which a bar justified serving drinks indoors in violation of health orders, saying it was a political protest.

San Francisco International Arts Festival has argued that the arts should be afforded the same rights as similarly constitutionally protected activities, raising the favorable treatment churches have received in a case testing the fairness of the city's pandemic restrictions. The judge overseeing the case has said that there's likely an equal protection of the laws issue. San Francisco International Arts Festival v. Breed, 20-cv-07314 (N.D. Cal., filed Oct. 19, 2020).