BAN ON INDOOR WORSHIP DRAWS SCRUTINY
High court orders judges to reconsider state’s restrictions
The Supreme Court told California judges on Thursday to take another hard look at state rules that ban most indoor worship services because of the coronavirus pandemic.
A week ago, the justices in a 5-4 decision lifted tight limits on churches and synagogues in neighborhoods of New York City where the virus was spreading. The court said those restrictions violated the First Amendment’s protection for the free exercise of religion.
Rather than issue a separate decision responding to a religious-liberty challenge to California’s restrictions, the high court issued a brief, unsigned order on Thursday telling federal judges in California to reconsider Gov. Gavin Newsom’s even tighter restrictions on worship services in all of the population centers of the state.
Lawyers for the Harvest Rock Churches in California said the governor’s restrictions for “Tier 1” mean that “indoor worship services are completely prohibited for 99.1% of Californians.”
While the court’s order does not have immediate legal impact, it suggests the state’s ban on indoor services is likely to fall.
Attorney Mathew Staver, who represents the church, said he expected a swift order from a federal judge blocking Newsom’s order. He said the high court’s actions would also lead other churches to challenge COVID-19 health orders.
“The bottom line result is that where the court needs to go is inevitable,” Staver said. “What the court did last week and what they did today, it’s a whole new landscape and I think they’ve telegraphed quite clearly the direction they’re going.”
In late May, the high court had rejected a religious-liberty challenge to Newsom’s
earlier restrictions, which limited indoor church gatherings to 100 people. Then, Chief Justice John Roberts cast a deciding vote and said judges should be wary of second-guessing state and local officials who are trying to restrain the pandemic.
But since then, the death of Justice Ruth Bader Ginsburg and her replacement by Justice Amy Coney Barrett has shifted the court’s majority. And the court now appears ready to strike down state restrictions on worship services that are more severe than the rules affecting retailers, offices and factories.
The decision is another at least partial victory for religious-liberty advocates and a setback for state health regulators. California’s lawyers warned the court about the surge in coronavirus cases and argued this was not the time to relax the restrictions on large indoor gatherings.
But Thursday’s order follows closely in line with the high court’s decision Nov. 25 to lift more targeted restrictions in New York severely limiting worship services in neighborhoods of Brooklyn and Queens, where the pandemic was spreading.
Two days before the court’s order in the New York case, Harvest Rock lodged an appeal of California’s restrictions. It argued Newsom’s rules discriminated against religion because grocery stores, big-box retailers, warehouses and meatpacking plants could remain open and allow large gatherings while churches were closed. They also said officials in Pasadena had threatened the Harvest Rock Church there and its pastor with fines and criminal charges.
In defense of the restrictions, the state’s lawyers said indoor gatherings where people congregate for an extended time pose greater risks of spreading the infection. “The risk is particularly high when such congregate activities involve singing or chanting, especially when they take place in buildings with limited ventilation,” they told the court.
The state’s “risk-based approach” sets the tightest restrictions in “Tier 1” counties, which include all of California’s population centers. There “the blueprint prohibits indoor gatherings for certain businesses and activities — including museums, movie theaters, restaurants and worship services — but allows such gatherings outside,” the state’s lawyers said.
A federal judge and a 9th Circuit Court panel had turned away Harvest Rock’s religious-liberty challenge to Newsom’s order. The judges did so by citing a late May decision of the Supreme Court which, by a 5-4 vote, refused to lift California’s earlier restrictions on the size of church gatherings in a case brought by South Bay United Pentecostal Church of Chula Vista.
Thursday’s order sets aside those decisions and tells the California-based judges to reconsider the issue in light of Roman Catholic Diocese of Brooklyn v. Cuomo, last week’s decision from New York.
While the Harvest Rock Churches case returns to federal court, South Bay United Pentecostal Church is awaiting a hearing on its lawsuit before the 9th Circuit Court.
Bishop Arthur Hodges III, senior pastor for the church, said the high court only ruled on the injunction, but not on the merits of the cases, which argue against the restrictions based on constitutional religious freedom and equal protection.
On Tuesday, the Chula Vista church filed an amicus brief in support of Harvest Rock Churches.
“It’s basically, I think, everybody trying to find the limit on governors’ emergency orders,” he said. “At what point does the higher court say, ‘You can’t go past this line?’”
Whatever the outcome of either lawsuit, Hodges said he expects it will be appealed to the Supreme Court for a final decision.
As bishop, Hodges said he oversees 100 churches in South California. If either lawsuit is successful at the Supreme Court level, he said he would urge those church leaders to open their doors to their congregation, but still follow safety guidelines to protect against the spread of the coronavirus.
“We’re not looking for a shortcut to get out of safety protocols,” said Hodges. “We don’t want people to get sick.”
Hodges said two of his friends have died of COVID-19.
Other faith leaders contacted Thursday said they were aware of the Harvest Rock case, but would not change their practices if the plaintiff prevailed.
“In terms of the current state of regulations, we don’t have a problem,” said Kevin Eckery, vice chancellor of the San Diego Catholic Diocese.
“We don’t need to do inside services, as much as we’d like to, because it’s dangerous and we don’t want to push the envelope,” he said, adding that the diocese will continue to hold services outdoors.
Chris Tumilty, communications director of the Episcopal Diocese of San Diego, had a similar view.
“We’re successfully holding outdoor worship and worshipping online,” he said. “There’s no need to rush indoors and risk the health of our members.”
Shamus Sayer, former board member with the Muslim Community Center of Greater San Diego, said the center has not held indoor services in nine months and has no plans to change its policy, not matter the outcome of the lawsuit.
“We are exercising an abundance of caution,” he said. “Prayers are held outside, and while you’re outside, you will continue to wear a mask.”
On Saturday, San Diego County public health officials announced that an outbreak of COVID-19 cases had occurred at Awaken Church on Balboa Avenue just east of Interstate 805 and called for anyone who attended services between Nov. 15 and Nov. 22 to quarantine for 14 days.
On Wednesday, the county health department issued a second outbreak advisory for Awaken’s locations in San Marcos and Chula Vista for the same eight-day span during which all three campuses, the health department said, generated 64 total cases.
While it has generally refrained from naming outbreak locations during the pandemic, the health department did so in Awaken’s case because it said it did not believe it had an accurate record of attendees, making broad public notification necessary to increase the probability of reaching all who were exposed.