A federal appeals court could allow California to restrict in-person worship, even though the Supreme Court ruled in favor of another California church that challenged the measures in December.
The Ninth Circuit Court of Appeals rejected Harvest Rock Church’s request for an emergency stay designed to block California governor Gavin Newsom (D.) from implementing massive religious shutdowns during the Christmas season. The ruling allowed the governor to continue enforcing some of the lockdown measures against worship services for the time being, bucking a trend of legal victories for churches that have challenged coronavirus shutdowns. The appeals court heard oral arguments on the broader lockdown challenge, as it weighs the constitutionality of Newsom policies that completely prohibit indoor worship in large parts of the state.
“The state has a very high public interest as well, to protect churchgoers and non-churchgoers from this disease,” Judge Johnnie Rawlinson, one of the three judges on the panel, said during oral arguments Monday. Judge Morgan Christen said she was “troubled” by some of the restrictions in place, including the outright ban on indoor religious gatherings. She questioned why a numerical cap on religious gatherings could not be instituted. But both judges sympathized with state regulators who argue that the virus’s prevalence is more significant now than it was in the past.
The Newsom administration’s attorney relied on surging coronavirus cases to justify the shutdown. Deputy attorney general Todd Grabarsky contrasted California’s regime with New York governor Andrew Cuomo’s (D.) lockdown measures, which the Supreme Court struck down in November.
“The situation in New York was different. There was evidence of animus, there was evidence of targeting. The state of the virus in early November was different than it is now in California,” Grabarsky said. “Indoor gatherings pose an exceptionally high risk.”
Lawyers for Harvest Rock argued that religious services could continue with sanitary and social-distancing precautions. Attorney Mat Staver countered in oral arguments that state regulators have singled out churches for strict oversight, while indoor commercial activities like shopping are allowed to continue.
“They just don’t trust people to gather together and worship, but they trust the same people to go to the factories, to the big box centers, to the grocery stores, and put your hands on the same items and the same handles that everyone else puts their hands on, which is frankly more risky than doing social distancing, cleansing, and sanitizing and temperature checks that our churches do,” Staver said.
Not every member of the panel was swayed by the winter surge in positive tests. Judge Diarmuid O’Scannlain expressed skepticism of the indefinite nature of the lockdown.
“I’m always very suspicious of temporary buildings, of temporary orders,” he said. “There’s no indication that this is going to expire in another week or two, more likely we are talking months if not through the summer.”
Religious institutions enjoyed a string of legal victories thanks to the Supreme Court’s New York decision, which helped churches win legal battles in Colorado and New Jersey. The Ninth Circuit itself sided with other churches in California and Nevada in the past. The appeals court struck down Nevada’s capacity limit on indoor worship, saying that the New York decision “represented a seismic shift in Free Exercise law.”
The final decision in Harvest Rock’s case is expected in the coming weeks.