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Law360 (January 25, 2021, 8:28 PM EST ) The Ninth Circuit on Monday blocked part of California's pandemic-related ban on in-person religious services, nixing certain attendance size limitations but keeping other aspects of the state's order, including restrictions on singing and chanting during indoor services.
In a unanimous published decision, the panel granted part of the injunction bid from Harvest Rock Church in Pasadena, eliminating the 100-person attendance limit on indoor places of worship under the second tier of the state's Blueprint for a Safer Economy and eliminating the 200-person attendance limit on third-tier places of worship. The four-tier system is based on the level of COVID-19 spread risk in a given county, as determined by the rate of positive tests in that county.
Retained is the state's ban on indoor worship among places of worship in a first tier, or high-risk, county; the limits on attendance — tied to a percentage of the building's fire-code capacity — for second-, third- and fourth-tier places of worship; and the singing and chanting restrictions.
The order included little explanation of the decision, other than to note that it was made in light of South Bay United Pentecostal Church v. Newsom, in which a San Diego church had made a similar request to enjoin a state order, a bid that was largely rejected.
Two members of the panel filed more substantive concurring opinions. U.S. Circuit Judge Morgan Christen's concurring opinion largely clarifies the timelines of the litigation and the various California orders. She said Monday's order mirrors the Ninth Circuit's recent decision in South Bay.
U.S. Circuit Judge Diarmuid O'Scannlain called the restrictions "draconian," saying that the order prohibits indoor services for nearly the whole Golden State, which, he says, no other state in the country has done.
"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, child-care centers, colleges, libraries, professional sports facilities, and movie studios," he said.
Judge O'Scannlain attacked the Ninth Circuit's handling of the South Bay case, calling it "woefully out of step" with controlling cases at both the high court and the Ninth Circuit.
"California's uniquely severe restrictions against religious worship services — including its total ban against indoor worship in nearly the entire state — are patently unconstitutional and should be enjoined. The court's refusal to do so in South Bay cries out for correction," he said.
California Gov. Gavin Newsom has issued pandemic safety orders prohibiting indoor worship gatherings in 18 counties, limiting such gatherings to 25% capacity, or 100 individuals in the other counties, and banning singing or chanting during religious services, according to the case. Newsom's orders also prohibit gathering in private homes for group Bible studies.
Harvest Rock Church claims those measures discriminate against religious activities in violation of the U.S. Constitution. The church filed its suit on July 17 and lodged a motion for a temporary restraining order the next day.
The district court rejected that request, and the case landed before the Ninth Circuit, which upheld the district court's ruling in a split decision in October.
The Supreme Court then vacated the rulings, denying the church's request for an injunction, and sent the case back down for further proceedings in light of its recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo.
In December, a district court judge declined to rule on the church's request for a temporary restraining order.
Since then, the Ninth Circuit made its decision in the South Bay, and, as a result, this panel followed suit.
Representatives for the parties did not immediately respond to requests for comment Monday.
Judges Diarmuid O'Scannlain, Johnnie B. Rawlinson and Morgan Christen sat on the panel for the Ninth Circuit.
The church is represented by Mathew D. Staver of Liberty Counsel.
Newsom is represented by Seth E. Goldstein of the California attorney general's office.
The case is Harvest Rock Church Inc. et al. v. Newsom, case number 20-56357, in the U.S. Court of Appeals for the Ninth Circuit.
--Editing by Peter Rozovsky.
For a reprint of this article, please contact reprints@law360.com.
