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The Supreme Court may soon decide whether California’s COVID-related ban on indoor worship—the only one in the nation—can be squared with the Free Exercise Clause. Here’s a thread on what may happen.
There is already one emergency application seeking relief from California’s worship ban – Gish v. Newsom, No. 20A120, which was fully briefed as of January 14. https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/20a120.html
There will likely be two more applications arriving at the Court in the next day or two, in the South Bay case and the Harvest Rock Church case. In those cases, two separate Ninth Circuit panels upheld the California worship ban, one on Friday and one this morning.
In South Bay, the panel ruled that California’s worship ban was discriminatory and thus triggered strict scrutiny review, but found that combatting the pandemic nevertheless justified the worship ban. https://cdn.ca9.uscourts.gov/datastore/opinions/2021/01/22/20-56358.pdf
The Harvest Rock panel this morning deferred to the South Bay opinion as the earlier-decided case.
However, Judge O’Scannlain wrote a separate opinion arguing that California’s “draconian” ban could not pass muster under the Supreme Court’s decision in Diocese of Brooklyn: https://s3.amazonaws.com/becketnewsite/Harvest-Rock-order-1-25-2021-1.pdf
The other major development this morning is that CA lifted the “Regional Stay At Home Order,” which was one of the two overlapping state orders banning worship. The Regional order had applied to most of the state, and also provided much of the basis for the South Bay opinion.
The Regional order had come under increasing criticism from epidemiologists and others because the state refused to release to the public the ICU usage projections it had relied on to justify the order: https://ktla.com/news/california/despite-promises-of-transparency-california-keeps-key-virus-data-from-public/
And last week a large coalition of restaurants sued the Governor to overturn the Regional order, arguing that its shutdown of outdoor dining was scientifically unsound and increased rather than decreased COVID spread: https://ktla.com/news/california/more-than-50-bay-area-restaurants-wineries-sue-gov-newsom-over-ban-on-in-person-dining/
With the Regional order out of the way, there is only one order remaining that bans worship – California’s “Blueprint.” The “Blueprint” allows retail—including malls and department stores—to be open at 25% and also allows a host of other activities such as hair salons to operate.
But in the "purple tier" that currently governs 54 of CA's 58 counties, places of worship cannot conduct indoor services: https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Dimmer-Framework-September_2020.pdf
Given these developments, the question before the Supreme Court in these cases is now quite narrow. There is no dispute that California’s differential treatment of worship triggers strict scrutiny under Diocese of Brooklyn, a @BECKETlaw win in November: https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf
Everyone likewise agrees that California has the burden of proof on the strict scrutiny question and that California has a compelling interest in combatting the spread of COVID.
The *only* question before #SCOTUS is thus whether California has proven that it “narrowly tailored” its regulations in accordance with Diocese of Brooklyn. If it has, it wins. If it hasn’t, then the churches win.
In Diocese of Brooklyn, #SCOTUS said NY’s restrictions were not narrowly tailored because they were “far more restrictive than any COVID–related regulations that have previously come before the Court, …
… much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”
Under that standard, California cannot prevail. First, its restrictions on worship are more onerous than other restrictions to come before the Supreme Court, including those enjoined in Diocese of Brooklyn.
Second, the restrictions are “tighter” than those used in *any other jurisdiction in the country* as shown by @BECKETlaw’s comprehensive 50-state survey of restrictions on indoor worship: https://www.becketlaw.org/covid-19-religious-worship/
Third, California cannot show that its restrictions are “required to prevent the spread of the virus at the applicants’ services” because it has offered no evidence particular to the applicants’ services.
What’s more, under the Court’s decision in Holt v. Hobbs, it is also California’s duty to “at a minimum, offer persuasive reasons why it believes that it must take a different course” than every other state: https://www.supremecourt.gov/opinions/14pdf/13-6827_5h26.pdf
Since other states are dealing with the same problem – stopping COVID – it is not enough for California to explain why its actions are justified by its own lights. It must also explain why all the other states are wrong in using less restrictive measures to achieve the same goal.
And it must explain why NY’s less-onerous restrictions were unconstitutional but California’s are not. As Judge O’Scannlain put it, “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?”
The Court should therefore enjoin CA’s worship ban and send the rest of the case back to the district court. If California wants to keep imposing draconian rules, it could then try, for the first time, to explain to the dist. court why other states don’t need a ban but it does.
But until then, Californians should be allowed to exercise their core First Amendment rights on the same terms as the rest of the country.
