Metropolitan News-Enterprise


Thursday, April 1, 2021


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Ninth Circuit Denies Emergency Relief Permitting In-Home Bible Studies


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals Tuesday denied an emergency injunction pending appeal sought to bar enforcement of California restrictions on private gatherings in light of the pandemic, with Judge Patrick J. Bumatay arguing in a partial dissent that banning in-home Bible studies is violative of the Free Exercise Clause of the First Amendment.

Circuit Judges Bridget Shelton Bade and Milan D. Smith Jr. signed the order denying emergency relief, which was sought following the denial of a preliminary injunction by the District Court Judge Lucy H. Koh of the Northern District of California on Feb. 5.

Two of the plaintiffs are Associate Pastor Jeremy Wong of Orchard Community Church in Santa Clara County and Karen Busch, who formerly hosted bi-weekly Bible study sessions at her home in that county before the pandemic struck. Other plaintiffs’ challenges were on different bases.

Distinctive Litigation

Koh noted that the two “seek to enjoin the restrictions insofar as they (1) ban indoor religious gatherings at their homes, including Bible studies, theological discussions, collective prayer, and musical prayer; and (2) limit outdoor religious gatherings at their homes to three households.” She said the preliminary injunction they sought “is distinct from other lawsuits that have challenged restrictions on attendance at houses of worship.”

There is no affront to religious rights, Koh concluded, saying that “the State’s private gatherings restrictions treat religious and secular gatherings alike and make no reference to religion.”

She wrote:

“If the Court overrode the State’s and County’s public health officials and enjoined these restrictions, then more deaths, more serious illnesses, and more strain on California’s already overburdened healthcare system would result.”

Neutral Regulations

Bade and Smith agreed, saying:

“The gatherings restrictions at issue here do not impose a total ban on all indoor religious services, but instead limit private indoor and outdoor gatherings to three households. There is no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings.”

The order also denies injunctive relief pending the appeal sought by a man who ran for Congress last year, intends to run next year, and wants to hold political gatherings in homes, and by a couple who want to host such gatherings, as well as by businesses.

Bumatay said he agrees with the decision denying relief, except as to Wong and Busch. He wrote:

“The State makes exemptions based on the subject matter of the garnering by lifting household caps for political expression but not for religious expression. If people want to gather to engage in an outdoor political rally or protest. California’s message to them is, ‘Go right ahead!’ But if those same people wish to gather outdoors to pray, unless at a place of worship, California says, ‘Not so fast!’ Political rallies and protests are favored—even though the State admits that they ‘present special public health concerns for high risk of COYID-19 transmission.’ Religious gatherings are not. This sort of religious gerrymander is odious to the First Amendment and to the Supreme Court’s precedents.”

He went on to say:

“Nothing in the record supports the view that Wong’s and Busch’s in-home worship is more dangerous for the spread of COVED-19 than the operation of other businesses open for customers without household caps.

“…California has amply demonstrated that such alternatives are available given that hair salons, tattoo parlors, and piercing shops are all operating without strict household limitations.”

Bumatay continued:

“The purpose of the Constitution was to place certain freedoms beyond the whims of the government. Even in times of crisis, we do not shrink from our duty to safeguard those rights. Freedom of worship is one of those enshrined rights, and the Supreme Court’s instructions have been clear, repeated, and insistent: no COVID-19 restriction can disfavor religious practice. Yet our court today trudges out another denial of relief to those seeking to practice their faith in the face of discriminatory restrictions.”

The case is Tandon v. Newsom, 21-15228.


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