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.)

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."

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.

2nd Circuit Invalidates New York's Fixed Capacity Limits For Houses of Worship

Last month, the U.S. Supreme Court in a widely noted decision enjoined while appeals are pending New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. (See prior posting.) Now the U.S. 2nd Circuit Court of Appeals has come down with a decision in that pending appeal.  In Agudath Israel of America v. Cuomo, (2nd Cir., Dec. 28, 2020), (in a decision that also covers the suit brought by the Catholic Diocese of Brooklyn), the court held that these limits imposed on houses of worship are subject to strict scrutiny, and that they are not narrowly tailored to stem the spread of COVID-19. It remanded the cases to the district court, instructing it to issue a preliminary injunction. It also ordered the district court to determine in the first instance whether alternative limits in the governor's Order of 25% and 33% of capacity can satisfy strict scrutiny. In reaching its conclusion, the court said in part:

[T]he [Governor's] Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. That lack of general applicability is also subject to strict scrutiny.

Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was created based on transmission risk. Instead, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”

Reuters reports on the decision.

Court Again Refuses To Enjoin California's COVID Limits On Church Services

In a case in which the U.S. Supreme Court previously refused to grant injunctive relief, a California federal district court again denied a preliminary injunction against California's COVID orders to a church seeking to hold indoor services. In South Bay United Pentecostal Church v. Newsom, (SD CA, Dec. 21, 2020), the court said in part:

In drawing this difficult balance between religious liberty and public health, the Court must follow the higher courts’ precedents, when the precedents seem to change course as quickly as the various pandemic restrictions. Admittedly, this has been a rapidly evolving—and escalating—pandemic. And in this very case, the Supreme Court declined to intervene after the Court refused to enjoin California’s prior regulation. Now, by all measures, the pandemic is worse and more out of control in Southern California than when that decision was made. Nevertheless, the Court is tasked with deciding whether Chief Justice Roberts’ rationale for not intervening in this case has now “expired,” as Justice Gorsuch’s recent concurrence in another case suggests. See Roman Catholic Diocese of Brooklyn v. Cuomo...

California has carefully designed the different exemptions to match its goal of reducing community spread, based on a neutral, seven-factor risk analysis. The Court does not find that California’s Regional Stay at Home Order is underinclusive as to exceed the boundaries drawn by the First Amendment. Therefore, based on the record before the Court, Plaintiffs are not likely to show that the Regional Stay at Home Order restricts more than is necessary to advance the California’s compelling interest in reducing community spread.

Fox5 News reports on the decision.

1st Circuit: Church's Appeal of TRO Denial Is Dismissed

 In Calvary Chapel of Bangor v. Mills, (1st Cir., Dec. 22, 2020), the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the district court's denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders that prohibited the gathering of more than ten people for faith-based events. The court concluded that denial of a temporary restraining order-- before the district court rules on a preliminary injunction request-- here is not appealable, even though both parties contended that this case fell within an exception to that rule.  The court said in part:

The Chapel contends that the district court's decision to deny it a temporary restraining order functionally precluded any possibility of a preliminary injunction. This contention elevates hope over reason....

... [T]he absence of immediate appealability — like the denial of the temporary restraining order itself — will not cause serious harm. Given the gravity of the situation and the fact that events remained in flux, we discern no sufficient basis for finding that the Chapel can satisfy the second of the three requirements for immediate appealability of a temporary restraining order. In this regard, we deem it important that the Chapel retained other means to organize worship services for its congregants, including the sponsorship of online worship services, the holding of drive-in services, and the hosting of gatherings of ten or fewer people.

On Remand From SCOTUS, California COVID Limits On Worship Services Again Upheld

In Harvest Rock Church, Inc. v. Newsom, (CD CA, Dec. 21, 2020), a California federal district court, in a case on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. The Supreme Court had called for reconsideration in light of its recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. The district court, distinguishing both Supreme Court and 9th Circuit cases, said in part:

The law remains that courts must first assess whether a law is “neutral or generally applicable.” Smith, 494 U.S. at 881. The Court finds that California’s Blueprint is. The Blueprint offers something the New York and Nevada Orders did not: the ability to legally congregate in unlimited numbers for worship—so long as that worship occurs outside. In so doing, the Blueprint treats religious activity better than comparable secular activity and even better than essential services. This is distinct from both the New York and Nevada restrictions and compels the conclusion that the Blueprint is neutral....

California’s Blueprint is also painstakingly tailored to address the risks of Covid-19 transmission specifically....

The First Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms. They just may not do so in ways that significantly increase the likelihood of transmission of a virus which has claimed more than three hundred thousand American lives in less than one year. The Constitution is not a suicide pact. The First Amendment may not be used to make it one.

Courthouse News Service reports on the decision.

UPDATE: Over the objection of Judge O'Scannlain, the U.S. 9th Circuit Court of Appeals in Harvest Rock Church, Inc. v. Newsom, (9th Cir., Dec. 23, 2020), set a briefing schedule for the Church's motion for an injunction pending appeal that failed to grant temporary relief by Christmas.

Federal Court Refuses To Enjoin State COVID Enforcement Proceedings Against Church

In Calvary Chapel San Jose v. Cody, (ND CA, Dec. 18, 2020), a California federal district court, applying the Younger abstention doctrine, refused to issue a temporary restraining order against state court proceedings enforcing a state court's preliminary injunction against a church. The church "blatantly flouted" COVID restrictions on worship service, continuing to hold indoor services for large numbers of worshipers without effectively enforcing mask or social distancing requirements. In refusing the TRO, the court said in part:

Our Federalism properly places this dispute in the more-than-capable hands of the Santa Clara County Superior Court.

Courthouse News Service reports on the decision.

DC Archdiocese Seeks Liberalized Capacity Rules For Its Churches

Last week, the Catholic Diocese of Washington, D.C. sued in federal district court challenging D.C.'s COVID-related 50-person cap on religious gatherings.  It seeks, instead, percentage-based limits similar to those imposed on numerous commercial establishments. The complaint (full text) in Roman Catholic Archbishop of Washington v. Bowser, (D DC, filed 12/11/2020), alleges that half of the churches in the Archdiocese can accommodate 500 or more worshippers, and the largest can accommodate thousands. It contends that the current limits violate its 1st and 14th Amendment rights. The complaint declares:

 Christmas should be a time for reconciliation and joy, and the Archdiocese simply wants to welcome its flock home. It respectfully requests that it be allowed to do so.

Catholic News Service reports on the lawsuit.

UPDATE: In order to resolve the litigation, D.C.'s Mayor on Dec. 16 issued modified rules (full text of Mayor's Order) that allow houses of worship to admit up to 25% of their capacity, not to exceed 250 persons, for worship services. Other events or programs at churches are limited to 10 persons indoors or 25 outdoors. Other safety protocols are also required for religious services. Washington Post reports on the new Order.

9th Circuit Orders Injunction Against Nevada's COVID Limits On Churches

In Calvary Chapel Dayton Valley v. Sisolak, (9th Cir., Dec. 15, 2020), the U.S. 9th Circuit Court of Appeals held that Nevada's COVID-19 restrictions on worship services violate the Free Exercise clause. The court said in part:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.

Nevada Independent reports on the decision.

Supreme Court Sends Two Cases On COVID Limits Back For Reconsideration

In two separate cases today, the U.S. Supreme Court vacated district court opinions (1, 2) denying churches or clergy injunctions against state COVID-19 orders. The Supreme Court ordered those courts to reconsider the cases in light of the Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In one of today's cases, High Plains Harvest Church v. Polis, (Sup. Ct., Dec. 15, 2020), challenging Colorado restrictions, Justice Kagan, joined by Justices Breyer and Sotomayor dissented on the ground that the case is now moot since the challenged capacity limits have already been lifted. In the second case, Kevin v. Murphy, (Sup. Ct., Dec. 15, 2020), challenging New Jersey restrictions, no dissents to the one paragraph order were recorded. SCOTUSblog has more on the decisions. [updated]

9th Circuit Hears Oral Arguments In Church's Challenge To Nevada COVID Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Calvary Chapel Dayton Valley v. Sisolak (video of full oral arguments). In the case, a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting.) Subsequently, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending the appeal that was argued this week. (See prior posting.) After that, plaintiff filed a petition asking the U.S/ Supreme Court to grant certiorari before the 9th Circuit decides the case. (See prior posting.) That petition is still pending.

Supreme Court Remands Church's Challenge To COVID Restrictions

In Harvest Rock Church v. Newsom,(US Sup. Ct., Dec. 3, 2020), the U.S. Supreme Court issued an Order treating the church's application for an injunction as a petition for certiorari before judgment, and granted the petition. It then vacated the district court's order and remanded the case for further consideration in light of the Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In the case, a church challenged California Governor Gavin Newsom's COVID-19 restrictions on indoor worship services. (See prior posting.)  New York Times reports on the Supreme Court's Order.

French Council of State Says Capacity Limits On Worship Services Are Too Strict

Religious freedom challenges to COVID-19 restrictions have spread to Europe. EuroWeekly reports that on Friday French Catholic bishops appealed to the Council of State, the country's highest court, challenging the country's 30-person limit on religious ceremonies. According to Reuters, today the Council of State ordered the government to review the restrictions, saying:

The claimants are right in saying that the measure is disproportionate in light of protecting the public's health ... thus it is a serious and illegal infringement on the freedom of worship.

According to Reuters:

The Conference of French Bishops welcomed the ruling and said that it would meet French Prime Minister Jean Castex later on Sunday to discuss new rules to limit the risk of coronavirus infection during church services.

"No other activity is limited by such a limitation regardless of surface area," it said.

Catholic organisations are proposing to allow churches to utilise 30% of their seating capacity.

Justice Alito Refuses To Enjoin Louisiana's COVID Restrictions On Churches

On Nov. 10, in Spell v. Edwards, a Louisiana federal district court dismissed a suit by megachurch pastor Tony Spell challenging the state's COVID-19 limits on worship services. Plaintiff filed an Emergency Application for an Injunction Pending Appeal with Supreme Court Justice Samuel Alito, contending:

This case presents a threshold question that other applicants did not present to this Court in prior religious liberty challenges: Whether the First Amendment places the decision of whether to assemble solely within the jurisdiction of the Church and not the State.

 On Nov. 27, Justice Alito, without referring the Application to the full court, denied the Application. Law & Crime reports on Justice Alito's action.

Supreme Court Enjoins, Pending Appeal, New York's COVID-19 Capacity Limits On Houses of Worship

The U.S. Supreme Court late last night, in a 5-4 decision, enjoined-- while appeals are pending-- New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (Sup. Ct., Nov. 25, 2020), in a decision that also applies to Agudath Israel of America v. Cuomo, the Court's per curiam opinion said in part: 

[S]tatements made in connection with the challenged rules can be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ”... But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities....

[T]here are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue....

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

Justice Gorsuch filed a concurring opinion, stating in part:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids....

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Chief Justice Roberts filed a dissenting opinion arguing that while the restrictions pose serious concerns, the Court should not rule on them because the houses of worship before the Court are no longer in red and orange zones. He also criticized Justice Gorsuch's attack on the dissenters in the case.

Justice Kavanaugh filed a concurring opinion, explaining why he disagrees with Chief Justice Roberts' approach.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, pointing out that the houses of worship are no longer under the challenged capacity limits and saying in part:

The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

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

It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them....

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, ... New York’s Orthodox Jewish community.... The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.”... I do not see how.... Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,”....

 New York Times reports on the decision.

Church Seeks Supreme Court Relief Against California COVID-19 Restrictions

As reported by Pasedena Now, Harvest Rock Church last Saturday filed an Emergency Application for an Injunction pending appeal (full text) with the U.S. Supreme Court. The Pasadena, California church is challenging Gov. Gavin Newsom's COVID-19 restrictions.

In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Newsom’s Orders that restrict in-person worship services. (See prior posting). Liberty Counsel issued a press release announcing the filing of the petition.

Brooklyn Diocese Asks Supreme Court To Enjoin COVID-19 Church Capacity Limits

Yesterday, an Emergency Application for Writ of Injunction (full text) was filed by the Catholic Diocese of Brooklyn in its challenge to New York Governor Andrew Cuomo's limitations on the number of persons who can attend a worship service during the COVID-19 pandemic. (See prior posting.) The U.S. Second Circuit Court of Appeals, in a 2-1 decision, refused to grant an injunction pending appeal to the Diocese and to a group of Jewish synagogues in the challenge to special restrictions on spots in which clusters of COVD-19 cases have broken out. SCOTUSblog reports on yesterday's filing.

UPDATE: On Nov. 16, the synagogues filed a similar Emergency Application. (Full text). SCOTUSblog has more on the filing.