Over the objections of Judge Diarmuid O’Scannlain, the Ninth Circuit on Friday and today issued a pair of rulings in South Bay United Pentecostal Church v. Newsom and Harvest Rock Church v. Newsom that rejected the claim by churches that California, in its fight against the covid pandemic, violated their Free Exercise rights by completely prohibiting indoor worship services in “Tier 1” (highly infected) counties. Judge Kim McLane Wardlaw wrote the unanimous 51-page panel opinion in South Bay. The panel in Harvest Rock determined in a brief order that the South Bay ruling, as circuit precedent, bound it to reach the same result.
In a concurring opinion in Harvest Rock, Judge O’Scannlain protested that the South Bay decision “is woefully out of step with both the Supreme Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo and our own court’s decision in Calvary Chapel Dayton Valley v. Sisolak.” Some excerpts:
In an effort to combat the spread of COVID-19, California’s “Blueprint for a Safer Economy” and its December 3 Stay at Home Order completely prohibit indoor worship services in nearly the whole state. Even in the midst of the present pandemic, these measures are drastic: 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….
The South Bay decision itself proves the point that there are many ways that the State might safeguard indoor activities that stop well short of a total prohibition. The opinion discusses at great length the variety of less severe measures that California has taken to allow all manner of secular activity to take place safely indoors, including occupancy limitations; facemask, physical-distancing, and disinfection protocols; installation of plexiglass barriers; regular COVID-19 testing practices; and penalties the State might enforce for failures to comply with such requirements. The obvious conclusion should be that, because the State has found measures like these sufficient to safeguard indoor activities as varied as running a daycare center, shopping in a mall, working in a warehouse or factory, riding public transportation, practicing a professional sport, attending a college class, or filming a movie, then surely some combination of similar measures might work for indoor religious worship as well.
Even if it weren’t otherwise clear that the State’s total ban is not the narrowest way by which it might make indoor worship safer, the Supreme Court’s decision in Roman Catholic Diocese dictates such a conclusion. There, the Court held that New York’s 25-person cap on attendance at worship services was a restriction “far more severe than has been shown to be required to prevent the spread of the virus.” The Court observed that “there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services,” including, “[a]mong other things,” tying “the maximum attendance at a religious service . . . to the size of the church or synagogue.” Our court subsequently held that even a 50-person cap on attendance at worship services was too inflexible to be narrowly tailored. Calvary Chapel.
If fixed attendance caps of 25 or 50 people are too rigid and too extreme to withstand strict scrutiny, how can a complete ban not be?
[Some citations omitted.]
I will note that California’s ban applies to “indoor congregate activities”—political protests and movie theaters as well as worship services. But as Judge Wardlaw acknowledges, under the Supreme Court’s decision in Roman Catholic Diocese, although the ban does “not single out religious practices for harsh treatment,” strict-scrutiny review applies “whenever a state imposes different capacity restrictions on religious services relative to non-religious activities and sectors.”