Supreme Court Allows California Churches To Hold Indoor Services While Appeals Continue

The U.S. Supreme Court on Friday night in Gateway City Church v. Newsom, (Sup. Ct., Feb. 26, 2021) issued an injunction that will allow petitioner churches to hold indoor worship services while their appeal is disposed of by the 9th Circuit and a petition for certiorari is filed and acted upon by the Supreme Court. In the case, the U.S. 9th Circuit Court of Appeals refused to enjoin enforcement, while the appeal is ongoing, of a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. (See prior posting.) In granting an injunction, the Supreme Court said:

The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021).

Justice Kagan, joined by Justices Breyer and Sotomayor dissented. 

SCOTUSblog reports on the Court's order, pointing out that the county had informed the Court that the current ban will soon be lifted and indoor gatherings with capacity restrictions will be allowed.

Canadian Court Refuses To Order Churches To Follow Health Orders Pending Hearing On Constitutionality

In Beaudoin v. British Columbia, (BC Sup. Ct., Feb. 17, 2021), a trial court in the Canadian province of British Columbia refused to issue an interlocutory injunction requiring three churches who are petitioners in the case to comply with COVID-19 public health orders banning in-person religious services in the province. The churches, clergy and another plaintiff filed suit challenging the public health orders as being in violation of the Canadian Charter of Rights and Freedoms. A hearing on this challenge is scheduled for March 1.  Pending that hearing, the government sought immediate injunctions to prevent the churches from continuing to hold in-person services. Refusing to issue the requested injunction, the court said in part:

I am left to wonder what would be achieved by the issuance of an injunction in this case....

When asked, counsel for the respondents said that the respondents accept that the petitioners’ beliefs are deeply held, but in response to my question as to why an injunction was sought, responded that while the petitioners and others like them are not dissuaded from their beliefs and practices by the impugned orders, an order from this Court is more likely to accomplish their compliance.

Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotees.... 

Vancouver Sun reports on the decision.

9th Circuit Rejects Church's Challenge On COVID Restrictions

In Gateway City Church v. Newsom, (9th Cir., Feb. 12, 2021), the U.S. 9th Circuit Court of Appeals upheld a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. The court said in part:

The challenged ban on indoor “gatherings” ... applies equally to all indoor gatherings of any kind or type, whether public or private, religious or secular. The Directive, which appears to affect far more activities than most other jurisdictions’ health measures, does not “single out houses of worship” for worse treatment than secular activities.

Santa Clara County issued a press release announcing the decision.

New Arkansas Law Limits COVID Restrictions On Religious Organizations

On Feb. 9, Arkansas Act 94 (Religion Is Essential Act) (full text) was signed by Gov. Asa Hutchinson and immediately went into effect. The new law provides that the Governor nor the State Board of Health

shall not prohibit or limit a religious organization from continuing to operate or engage in religious services during a disaster emergency under this subchapter.

The law however does permit requiring: 

religious organizations to comply with neutral health, safety, or occupancy requirements issued under state or federal law that are applicable to all organizations and businesses.

The law goes on to provide, however, that such requirements may not impose a substantial burden on a religious organization unless it is shown to be essential to further a compelling governmental interest and is the least restrictive means of doing so.

"Religious organizations" are broadly defined in the new law to include houses of worship, religious educational institutions and religious leaders, among others.

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Court Says Quebec Worship Limits Apply To Capacity for Each Room

Canadian Lawyer reports on a decision interpreting Quebec's COVID-19 limits on indoor worship services:

Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.

Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion....

New York COVID-19 Restrictions On Houses of Worship Enjoined

In a case on remand from the 2nd Circuit, a New York federal district court (without opposition from the state) has issued an injunction against New York state's COVID-19 restrictions on houses of worship.  The court in Agudath Israel of America v. Cuomo, (ED NY, Feb. 9, 2021) said in part:

In light of the decisions by the Supreme Court, Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo ... and the Second Circuit, Agudath Israel of Am. v. Cuomo ..., specifically finding that “both the fixed capacity and percentage capacity limits on houses of worship” in  the red and orange zones “are subject to strict scrutiny,” ... Defendant has agreed to an injunction against enforcement of the 25% and 33% capacity limits in red and orange zones, respectively.... Subsequently, Defendant’s counsel has represented in status conferences that before the end of February 2021 EO 202.68 will be amended to remove houses of worship.

For the foregoing reasons, the court grants a permanent injunction against enforcement of EO 202.68’s 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones.

Becket issued a press release announcing the decision.

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion. 

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

AP Report Critical of Catholic Church's Participation In Paycheck Protection Program

AP yesterday published an investigative report critical of the Catholic Church's participation in the COVID-19 Paycheck Protection Program.  The report says in part:

As the pandemic began to unfold, scores of Catholic dioceses across the U.S. received aid through the Paycheck Protection Program while sitting on well over $10 billion in cash, short-term investments or other available funds....

Overall, the nation’s nearly 200 dioceses, where bishops and cardinals govern, and other Catholic institutions received at least $3 billion. That makes the Roman Catholic Church perhaps the biggest beneficiary of the paycheck program....

Church officials have said their employees were as worthy of help as workers at Main Street businesses, and that without it they would have had to slash jobs and curtail their charitable mission as demand for food pantries and social services spiked. They point out the program’s rules didn’t require them to exhaust their stores of cash and other funds before applying....

By using a special exemption that the church lobbied to include in the paycheck program, Catholic entities amassed at least $3 billion — roughly the same as the combined total of recipients from the other faiths that rounded out the top five.... Baptist, Lutheran, Methodist and Jewish faith-based recipients also totaled at least $3 billion. Catholics account for about a fifth of the U.S. religious population while members of Protestant and Jewish denominations are nearly half....

Virginia Governor Protected By 11th Amendment In Church's Suit Challenging COVID-19 Orders

In Lighthouse Fellowship Church v. Northam, (ED VA, Jan. 27. 2021), a Virginia federal district court dismissed a church's suit against Virginia's governor challenging COVID-19 restrictions on worship services. The court held that under the 11th Amendment, the governor is immune from suit challenging his orders. The suit contended that the orders violated federal and state constitutional and statutory provisions. Christian Post reports on the decision. The Department of Justice had filed a statement of interest supporting plaintiff in the case. (See prior posting.)

Another Decision On California COVID Limits On Worship Services

In Gateway City Church v. Newsom, (ND CA, Jan. 29, 2021), a California federal district court, discussing recent 9th Circuit and Supreme Court precedents, upheld portions of COVID-19 state and county restrictions on worship services, while preliminarily enjoining other parts of the state's orders.  The court upheld the state prohibition on indoor worship in Tier I high risk areas. It also upheld the county's general prohibition on gatherings of all sorts. The court however enjoined enforcement of state 100- and 200- person capacity limits in Tier II and III recovery-- but allowed percentage-based capacity limits. Finally it enjoined restrictions on activities other than worship services in houses of worship.

Church Again Asks Supreme Court To Invalidate California COVID Restrictions

In its continuing challenge to California's COVID-19 restrictions on worship services, a California church is again seeking an emergency injunction from the Supreme Court.  The application for an injunction (full text) in Harvest Rock Church, Inc. v. Newsom, (Sup. Ct., filed 1/26/2021) challenges the 9th Circuit's decision earlier this week upholding California's total ban on indoor worship services in highest risk (Tier I) areas, while striking down 100- and 200-person limits at places of indoor worship in Tier 2 and 3 areas. In December, the Supreme Court had remanded the case for further consideration. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the latest application with the Supreme Court.

9th Circuit Again Upholds Some of California's Restrictions On Indoor Worship; Enjoins Others

In Harvest Rock Church v. Newsom, (9th Cir., Jan. 25, 2021), the U.S. 9th Circuit Court of Appeals, relying on the South Bay decision handed down by a different 9th Circuit panel three days earlier (see prior posting) enjoined California from enforcing its COVID-19 related 100- and 200-person limits at places of indoor worship. It however upheld the total ban on indoor worship services in higher risk areas. Judge O'Scannlain concurred specially, criticizing the South Bay decision and arguing that the total ban on indoor worship should also be enjoined. Orange County Register reports on the decision.

Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

Supreme Court Dismisses and Vacates Judgment Below In Temporary Texas Abortion Ban Controversy

The U.S. Supreme Court today granted certiorari in Planned Parenthood v. Abbott, (Docket No. 20-305, Jan. 25, 2021) (Order List), summarily vacated the judgment below and remanded the case to the 5th Circuit with instructions to dismiss the case as moot. The case began as a challenge to Texas Gov. Greg Abbott's order temporarily barring most elective abortions during the COVID-19 crisis. Subsequently the Governor permitted abortion services to resume. At issue in the case now was whether the Supreme Court would vacate the Court of Appeals judgments below so that they would no longer serve as precedent in other cases. (See petition for certiorari.) The SCOTUSblog case page has links to all the pleadings in the case.

9th Circuit Upholds California's Temporary Ban On Indoor Worship Services

 In South Bay United Pentecostal Church v. Newsom, (9th Cir., Jan. 22, 2021), the U.S. 9th Circuit court of Appeals affirmed a California federal district court's denial of a preliminary injunction to a church that objects to the state's COVID-19 ban on indoor religious services. The court describes the current restrictions:

California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services “essential,” but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk....

South Bay argues that the current restrictions on indoor services prohibit congregants’ Free Exercise of their theology, which requires gathering indoors.

In upholding the state's requirement, the court said in part:

Notably, in response to the State’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks—100% occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures—would be effective to meet California’s compelling interest in controlling community spread. South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshipers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.

The court concluded, however, that 100- and 200-person caps for later stages of recovery are unconstitutional "because California has imposed different capacity restrictions on religious services relative to non-religious activities and sectors."

Supreme Court Allows Enforcement of FDA Rule On Medical Abortions While Appeals Are Pending

The U.S. Supreme Court in Food & Drug Administration v. American College of Obstetricians & Gynecologists, (US Sup. Ct., Jan 12, 2021), stayed a Maryland federal district court's injunction pending appeal of an FDA rule on access to medical abortions. The FDA requires mifepristone, one of two drugs necessary for a medical abortion, to be picked up in person by the patient at a hospital, clinic or medical office.  The district court had continued to enjoin that requirement during the COVID epidemic, even though in October the Supreme Court had sent the case back for further consideration by the district court.  Now, in a case on its so-called "shadow docket" (cases seeking emergency relief without full oral argument) the Supreme Court in an unsigned opinion has granted a stay of the injunction pending disposition of appeals in the 4th Circuit and Supreme Court.

Chief Justice Roberts filed a brief concurring opinion, stating in part:

The question before us is not whether the requirements for dispensing mifepristone impose an undue burden on a woman’s right to an abortion as a general matter. The question is instead whether the District Court properly ordered the Food and Drug Administration to lift those established requirements because of the court’s own evaluation of the impact of the COVID–19 pandemic. Here as in related contexts concerning government responses to the pandemic, my view is that courts owe significant deference to the politically accountable entities with the “background, competence, and expertise to assess public health.”

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

Due to particularly severe health risks, vastly limited clinic options, and the 10-week window for obtaining a medication abortion, the FDA’s requirement that women obtain mifepristone in person during the COVID–19 pandemic places an unnecessary and undue burden on their right to abortion....

What rejoinder does the Government have to the possibility that refusing to suspend the FDA’s in-person requirements for mifepristone during the COVID–19 pandemic will cause some women to miss the 10-week window altogether? No cause for concern, the Government assures this Court, because even if the FDA’s in-person requirements cause women to lose the opportunity for a medication abortion, they can still seek out a surgical abortion. What a callous response.

Justice Breyer dissented without filing or joining an opinion.  SCOTUSblog has further coverage of the decision.

Massachusetts COVID Requirements For Church Services Upheld

In Delaney v. Baker, (D MA, Jan. 6, 2021), a Massachusetts federal district court rejected plaintiff's claims that COVID-19 orders imposing maximum occupancy limits and requiring a mask and social distancing at Catholic religious services, as well as more general mask requirements, violate his free exercise rights. The court held that plaintiff's claims as to restrictions at religious services should be dismissed for lack of standing:

Delaney’s ... challenge ... that his First Amendment right to freely exercise his religion is infringed by the maximum occupancy limits, fails.... This injury is not concrete and particularized, nor is it actual or imminent.... The joint finding is devoid of any evidence that Delaney was ever denied access to his parish church, let alone that such a denial was due to Governor Baker’s occupancy limit....Delaney also argues that the mask mandate violates his religious beliefs and therefore his First Amendment right to the free exercise of his religion and that the social distancing guidelines for churches are an affront to the free exercise of his religion.... Setting aside, for a moment, the mask mandate outside of Delaney’s parish, the mask mandate within his parish and Delaney’s injury from the social distancing guidelines within his parish fail to allege a redressable injury.... Delaney is claiming that Governor Baker’s orders are the cause of his parish’s protocols which are infringing on the exercise of his religion.... There is no evidence, however, that the Archdiocese instituted its protocols only because of Governor Baker’s orders, and even had it done so, there is no evidence that a favorable ruling would result in redress of Delaney’s injury....

As to the more general mask requirement, the court said in part:

Governor Baker’s orders for all residents to wear masks are rationally related to the interest in stemming the spread of COVID-19 because, as the parties stipulated in the joint finding, “[i]t has been proven that the wearing of masks can slow the transmission of the spread of the coronavirus.”....

Delaney’s challenge suffers the same fate under the more deferential Jacobson standard.

9th Circuit Hears Oral Arguments in Harvest Rock Church Appeal

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of arguments) in Harvest Rock Church v. Newsom. In the case, a California federal district court, on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. (See prior posting.) Plaintiffs then asked the 9th Circuit for an emergency injunction pending appeal. (Links to briefs and supplemental briefs filed in the 9th Circuit.) That motion was the subject of yesterday's arguments.

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.