Bench Memos

Law & the Courts

Forceful Dissent from Ninth Circuit Order Allowing Ban on In-Person Religious Services

In a ruling Friday in South Bay United Pentecostal Church v. Newsom, a divided panel of the Ninth Circuit denied a church’s challenge to state and county orders barring in-person religious services. Judge Daniel Collins forcefully dissented.

Collins rejected California’s “extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in ‘good faith’ and has ‘some factual basis’ for his edicts.” The Supreme Court’s 1905 ruling in Jacobson v. Massachusetts does not, he argued, “support[] the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards.” (Emphasis in original.) Therefore, the church’s challenge must be evaluated under the traditional framework that governs Free Exercise claims.

Under that traditional framework, the first question in addressing a Free Exercise claim is whether the challenged restrictions are neutral and generally applicable. Here, the restrictions, Collins explains, explicitly discriminate against religious conduct and are therefore not neutral:

In framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities.

As set forth by the State, the four-stage Reopening Plan assigns “retail (curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and in-store retail, “child care, offices & limited hospitality, [and] personal services” to a later portion of Phase 2…. By contrast, “religious services” are explicitly assigned to a “Stage 3” that also includes “movie theaters” and other “personal & hospitality services.”

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services —the State’s Reopening Plan undeniably discriminates on its face against religious conduct. [Some quotation marks omitted.]

The restrictions are also not generally applicable but instead create a “highly reticulated patchwork of designated activities and accompanying guidelines.”

The restrictions therefore can survive only if they satisfy strict scrutiny, but, Collins determines, they plainly don’t:

The State’s undeniably compelling interest in public health could be achieved by narrower regulations that burdened religion to a far lesser degree. As Plaintiffs have reiterated throughout these proceedings, they will comply with every single guideline that other businesses are required to comply with. [Some quotation marks omitted.]

Update (5/25): I’m glad to learn that South Bay Pentecostal Church has filed an emergency application in the Supreme Court. If the Court reaches the merits of the Free Exercise claim, I’d expect a unanimous reversal of the Ninth Circuit.

Update (5/30): On May 26, a new county order was issued that allows churches to hold in-person religious services so long as they limit attendance to 25% of building capacity or a maximum of 100 people and implement social-distancing measures. On May 29, the Supreme Court, by a vote of 5 to 4 (with the Chief Justice joining the liberal justices), denied South Bay Pentecostal Church’s application for injunctive relief. What bearing, if any, that denial has on the competing positions of the Ninth Circuit judges on the previous set of orders is open to debate.


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