Appeals court upholds curbs on gatherings held privately
A divided federal appeals court on Tuesday upheld Gov. Gavin Newsom’s restrictions on private indoor and outdoor gatherings during the COVID19 pandemic, generally limiting attendance to members of three households at a time.
A Bible study group in Santa Clara County, which was among the challengers to the restrictions, contended the state was discriminating against religious worship — an argument the 5.S. Supreme Court accepted in a different context Feb. 5 when it rejected Newsom’s ban on indoor worship services in most of California. But the Ninth 5.S. Circuit Court of Appeals in San Francisco said Tuesday that the state’s limits on private gettogethers, religious or secular, were no more stringent than rules for comparable business operations during the pandemic.
There is “no indication that the state is applying the restrictions to inhome private reli
gious gatherings any differently than to inhome private secular gatherings,” Judges Milan Smith and Bridget Bade said in the 21 ruling.
In dissent, Judge Patrick Bumatay said the court had turned “a blind eye to discrimination against religious practice.” He argued — and the majority denied — that Newsom’s rules imposed tighter limits on indoor private Bible study groups than on tattoo parlors.
Plaintiffs in the case also included Ritesh Tandon, a Fremont businessman and Republican politician who unsuccessfully challenged Rep. Ro Khanna, DFremont, in last year’s election and is considering another campaign next year. A federal judge ruled last month that Tandon could host debates and political fundraisers attended by more than three households, a ruling the state did not appeal.
The panel members, chosen by random draw, were all appointed by Republican presidents, Smith by George W. Bush, and Bade and Bumatay by Donald Trump.
Newsom’s rules ban indoor gatherings in the three counties in the state’s highrisk purple tier, Stanislaus, Merced and Inyo. Elsewhere, the state says gatherings are “strongly discouraged” but allowed for up to three households.
The same restrictions apply in all counties to gatherings at public parks and other outdoor locations. Singing and chanting, which pose risks of spreading the coronavirus, are allowed at outdoor gatherings, if participants keep their distance and wear masks whenever possible, but are prohibited at indoor meetings.
Similar rules apply to outdoor political protests and rallies and to outdoor religious services. Indoor worship services, covered by earlier rulings, are allowed up to 50% of a building’s capacity in moderaterisk orangetier counties, including San Francisco, Alameda, Marin, San Mateo and Santa Clara, and 25% of capacity in higherrisk redtier counties, including Contra Costa, Napa, Sonoma and Solano. Singing and chanting are still banned during indoor services.
Arguing that the threehousehold limit on private gatherings violated constitutional freedoms of religion, speech and assembly, plaintiffs said the state allowed closer contact in train stations, airports, malls and retail stores. But the court said the state had offered legitimate reasons for the differing rules.
Citing findings by U.S. District Judge Lucy Koh of San Jose, who upheld Newsom’s restrictions last month, the court majority said state officials had reasonably concluded “that when people gather in social settings, their interactions are likely to be longer than they would be in a com
Citing findings by U.S. District Judge Lucy Koh of San Jose, who upheld Newsom’s restrictions last month, the court majority said state officials had reasonably concluded “that when people gather in social settings, their interactions are likely to be longer.”
mercial setting, (and) that participants in a social gathering are more likely to be involved in prolonged conversations”
The state also observed that “private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and maskwearing are less likely in private settings and enforcement is more difficult,” Smith and Bade said.
Small businesses like barber shops and tattoo parlors that have close contact with customers are required to take additional safety measures, the court said: checking the temperatures of all workers as they arrive, requiring some to wear face shields and allowing only one person at a time in waiting rooms.
Bumatay, in dissent, said that under the current rules, “a beauty shop may host an unrestricted number of households, half of them barefaced and in immediate proximity to the other half,” while private religious gatherings are restricted. He described the rules as “a religious gerrymander.”
Erin Mellon, a spokesman for Newsom, said the ruling “reaffirms the state’s public health guidance focused on keeping people safe from this deadly virus.”
Lawyers for the plaintiffs were not immediately available for comment.