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Ninth Circuit:
California May Ban Indoor Worship Services During Epidemic
By a MetNews Staff Writer
A temporary ban on indoor religious services in counties such as Los Angeles with a high number of persons afflicted with the coronavirus—which is all but four counties in the state—is constitutional, the Ninth U.S. Circuit Court of Appeals has declared in two cases.
One decision was filed Friday, and another yesterday. The later decision was controlled by the first, under the view that a precedential decision by one panel binds other panels within the circuit.
That rule, however, did not preclude Judge Diarmuid O’Scannlain from protesting yesterday:
“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.”
Friday’s opinion was authored by Circuit Judge Kim McLane Wardlaw. On the panel with her were Circuit Judge Richard R. Clifton and District Court Judge Timothy Hillman of the District of Massachusetts, sitting by designation.
District Court Affirmed
Wardlaw’s opinion affirms the denial by District Court Judge Cynthia A. Bashant of the Southern District of California of injunctive relief sought by the South Bay Pentecostal Church in San Diego County’s City of Chula Vista. San Diego County—like Los Angeles County—is in the highest risk classification: “Tier I” (the “Purple Tier”), under the state’s “Blueprint for a Safer Economy,” promulgated on Aug. 28, 2020.
In counties in that tier, before and since yesterday’s lifting of the regional stay-home orders, religious services may only be held outdoors. Wardlaw wrote:
“Because we conclude that the district court did not abuse its discretion, we affirm its denial of South Bay’s request to enjoin California’s temporary prohibition on indoor worship under the Regional Stay at Home Order and Tier 1 of the Blueprint. We also conclude that South Bay has not demonstrated a likelihood of success on the merits with respect to its challenge to California’s state-wide ban on indoor singing and chanting.”
Singing and chanting, it has been determined, tend to spread the disease.
First Amendment Concerns
While recognizing that the freedom-of-religion aspect of the First Amendment is implicated, Wardlaw said of the indoor-services ban:
“[G]iven the contagiousness of this deadly virus and the dire circumstances facing Southern California’s healthcare system at this moment in its history, there exist no less restrictive means to alleviate the situation.” She noted that California “leads the nation with its seven-day average of total new cases,” pointing out that “[a]s of January 19, the state’s test positivity rate sat at 15.2% and ICU capacity has disappeared.” Acknowledging that retail and grocery stores are open—at reduced capacity—Wardlaw explained the disparate treatment by saying:
“[P]atrons typically have the intention of getting in and out of grocery and retail stores as quickly as possible…, whereas the very purpose of a worship service is to congregate as a community. To preserve perishable products and comply with applicable health and safety codes, grocery stores are ‘almost always’ equipped with high-functioning air-conditioning systems that increase ventilation and air flow….Singing, chanting, and shouting is uncommon in these establishments.”
Under the blueprint, infection in Tier 1 counties is “widespread”; in Tier 2 counties (Alpine, Mariposa and Trinity) it is “substantial,” while in Tier 3 counties (Sierra) it is “moderate,” and in Tier 4 counties (of which there are none), “minimal.”
Wardlaw went on to say:
“We cannot…conclude that the 100- and 200-person attendance caps on indoor worship under Tiers 2 and 3 of the Blueprint survive strict scrutiny.”
The case is South Bay United Pentecostal Church v. Newsom, No. 20-56358.
Yesterday, a three-judge panel, comprised of O’Scannlain and Circuit Judges Morgan Christen and Johnnie B. Rawlinson, partially granted an emergency motion for an injunction pending appeal sought by Harvest Rock Church, a Pasadena church with satellite “campuses,” and a related alliance of churches. The order enjoins the state from enforcing the indoor restrictions in Tier 2 and Tier 3 counties.
The plaintiff/appellant’s Jan. 19 brief sets forth:
“Harvest Churches comprise Harvest Rock Church, Inc., a Christian church with multiple campuses in California, including in in Pasadena, Irvine, and Corona, and Harvest International Ministries, Inc., a Christian ministry organization based in Pasadena, with numerous member churches throughout 18 comities in California.”
It is not mentioned in the brief nor in yesterday’s order whether any church that is a member of Harvest International Ministries is located in a Tier 2 or Tier 3 county.
The order specifies that the injunction “does not prevent the State from enforcing…the total prohibitions against indoor worship under Tier 1 of the Blueprint” or “the State’s restrictions on singing and chanting at indoor worship services.” Christen noted in a concurring opinion that “because the South Bay panel has priority, the relief ordered here mirrors the relief granted in South Bay.”
O’Scannlain, “specially concurring,” agreed that South Bay must be followed, but said of the total prohibition on indoor services in Tier 1 counties:
“…California is the only state in the country that imposes such a ban, according to the brief filed in this case by an organization participating as amicus curiae….Yet, in exactly the same locales where indoor worship is prohibited, California still allows a vast array of secular facilities to open indoors, including (to name only a few): retail stores, shopping malls, factories, food-processing plants, warehouses, transportation facilities, childcare centers, colleges, libraries, professional sports facilities, and movie studios.”
He continued:“We should have little trouble concluding that these severe measures violate the Free Exercise Clause of the First Amendment.”
He went on to say:
“Because the State’s restrictions violate the Free Exercise Clause of the First Amendment, there ‘can be no question’ that their continued enforcement would cause irreparable harm to the religious believers and places of worship currently prohibited from worshipping indoors….
“An injunction to protect these constitutionally guaranteed rights undoubtedly serves the public interest.”
The case is Harvest Rock Church, Inc. v. Newsom, No. 20-56357.
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