By Lauren Berg

Law360 (January 15, 2021, 10:17 PM EST ) A San Diego church that failed to beat California's pandemic restrictions at the U.S. Supreme Court urged the Ninth Circuit on Friday to reconsider its request, arguing that a subsequent high court decision striking down rules on religious gatherings in New York favors axing California's rules.

South Bay United Pentecostal Church's attorney Charles S. LiMandri told the three-judge panel during video oral arguments that churches are essential services under the First Amendment, and it's not fair for California to allow grocery stores, marijuana dispensaries and shopping malls to stay open, while denying houses of worship the ability to hold indoor services.

"If Costco is open, your honor, then churches need to be open," LiMandri said, urging the panel to reverse a district court's order denying the church's preliminary injunction against California's coronavirus restrictions on indoor religious services.

Houses of worship are allowed to hold services outdoors, but LiMandri said it's too cold to be comfortable for all churchgoers and that "tens of millions of people" have been attending church in the U.S. throughout the pandemic at no greater risk than any other activity.

Shortly after filing suit in May against Gov. Gavin Newsom, Attorney General Xavier Becerra, California Public Health Officer Sonia Angell and three San Diego public officials, the church sought an emergency restraining order to block enforcement of the state's stay-at-home order, which was denied by the district court, the Ninth Circuit and then the Supreme Court.

The church then requested a remand to present further evidence concerning the state of the pandemic, which was granted, but the district court again denied the motion.

Then, in light of the Supreme Court's Nov. 25 ruling in Roman Catholic Diocese of Brooklyn v. Cuomo , which lifted restrictions on the number of people who could attend services at churches and synagogues in Brooklyn, New York, the church requested another injunction. The high court's unsigned per curiam opinion explained that a whole host of secular businesses deemed "essential" by the state did not face the same capacity limits, and that the rules "single out houses of worship for especially harsh treatment."

The Ninth Circuit denied the church's request but vacated the district court's previous denial and remanded it for further consideration.

The church again moved for preliminary injunctive relief, but the district court again denied the request, finding that the government stay-at-home order is narrowly tailored to stop the spread of the coronavirus.

Pending this appeal, the church asked the Ninth Circuit for another injunction, but the request was denied on Christmas Eve.

On Friday, LiMandri told the appellate panel the church has presented evidence from science and doctors suggesting people can safely attend worship activities with masks, social distancing and other protocols.

But Todd Grabarsky, an attorney for the state, told the panel that the state's own experts say indoor worship services have been shown to be particularly fertile ground for spreading the virus, unlike in grocery stores and other retail establishments where interactions are more fleeting. He said the virus spreads from person-to-person, and spread is far more likely to occur when people are seated together for long periods of time, such as in concerts, lectures and worship services.

When the stay-at-home order was briefly lifted in May and houses of worship were allowed to gather again, Grabarsky said there was a spike in coronavirus cases. He said that, in denying the preliminary injunction, the district court determined that wearing masks and social distancing would not be enough to stem the spread of the virus at indoor worship services.

He said the district court found there have been outbreaks specifically tied to worship services all over the country, including in California.

But LiMandri said the church disputes the state's evidence that indoor worship services are riskier than other activities, arguing that the government can't take away people's religious liberty on speculation.

"As long as secular businesses are open, they can't justify the closure of churches," LiMandri said. "For most people, who follow the protocols, there's no risk going to church."

LiMandri told Law360 on Friday evening that the arguments were a "spirited exchange" and he is hopeful the panel will rule in the church's favor.

"If they do not, then we are optimistic that our clients will ultimately receive justice from the U.S. Supreme Court," LiMandri said. "We have a reasonable expectation that the churches will soon be back open throughout California."

Representatives for San Diego and the state did not respond to requests for comment Friday.

U.S. Circuit Judges Kim McLane Wardlaw and Richard R. Clifton, and U.S. District Judge Timothy S. Hillman by designation, sat on panel for the Ninth Circuit.

The church is represented by Charles S. LiMandri.

The state defendants are represented by Todd Grabarsky of the California Attorney General's Office.

The San Diego County defendants are represented by Jeffrey P. Michalowski of the San Diego County Counsel's Office.

The case is South Bay United Pentecostal Church et al. v. Gavin Newsom et al., case number 20-56358, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Jimmy Hoover. Editing by Ellen Johnson.

For a reprint of this article, please contact reprints@law360.com.