Shelter In Place Litigation Update: Ninth Circuit Affirms California’s Temporary Restrictions on Indoor Worship Services While Invalidating 100/200 Person Numerical Caps
On January 22, 2021, the Ninth Circuit recently issued its opinion in South Bay United Pentecostal v. Newsom, affirming an order by Southern District Judge Cynthia Bashant denying the church’s motion for preliminary injunction against the State and San Diego County’s restrictions on indoor worship services to slow the spread of COVID-19. The case is the first Ninth Circuit case to directly address a religious group’s challenge to the restrictions as a violation of their First Amendment right to free exercise of religion since the Supreme Court enjoined Governor Cuomo’s restrictions on religious services in New York in Roman Catholic Diocese of Brooklyn v. Cuomo.
The Ninth Circuit addressed the State’s Regional Stay at Home Order (which is now lifted) and the State’s Blueprint color-coded tier restrictions. The Court upheld the temporary prohibition on indoor worship under both the Regional Order and the Purple Tier 1 of the Blueprint, as well as the statewide ban on indoor singing and chanting. However, the Ninth Circuit ordered the District Court to enjoin the 100 and 200 person attendance caps for indoor worship under Red Tier 2 and Orange Tier 3, while allowing the percentage capacity restrictions of 25% and 50% under those tiers to stand.
Then, on January 25, 2021, the Ninth Circuit’s motions panel issued a similar ruling denying an injunction pending appeal in Harvest Rock v. Newsom. Like South Bay United, the appeal was from the denial of Harvest Rock’s motion for preliminary injunction issued by Central District Judge Jesus Bernal. The panel issued an order denying the requested injunction except as to the 100 and 200 person caps in Tiers 2 and 3, citing South Bay United as the basis for the decision.
- Strict scrutiny will apply to free exercise claims so long as the guidelines treat religious worship more harshly than other secular activity. The State argued that the criteria for determining the restrictions was neutral and, therefore, rational basis review should apply. The Ninth Circuit rejected this argument, saying that it was foreclosed by Roman Catholic Diocese of Brooklyn v. Cuomo and that strict scrutiny would apply “whenever a state imposes different capacity restrictions on religious services relative to non-religious activities and sectors.” The Ninth Circuit appeared to shift away from the previous disputes over what the proper comparators were and, instead, applied a broader rule that essentially looks at any and all secular activity as a comparator.
- A fact-specific analysis will apply to determine whether the restrictions meet the narrow tailoring requirement. In South Bay United, both Judge Bashant and the Ninth Circuit thoroughly analyzed applicable restrictions—in particular as compared to the restrictions applicable to other industries and in light of the specific risks each posed—to determine whether the restrictions on religious services were narrowly tailored. Judge Bashant credited the State’s expert witnesses over the church’s, and the Ninth Circuit emphasized that their review of these factual determinations was subject to the deferential clear error standard of review. The key to successfully opposing preliminary injunctions in similar cases going forward will be marshaling strong expert testimony to support the restrictions.
The Ninth Circuit engaged in a careful examination of the evidence in the record and noted its deference to the district court’s factual determinations. South Bay United and Harvest Rock therefore serve as clear reminders of the importance of building a strong evidentiary record in order to survive the rigorous strict scrutiny rubric.
South Bay United has already filed a petition for writ of certiorari with the Supreme Court, as well as an emergency motion for injunction pending appeal, so it is likely there will be further development on these issues in the very short term.
About Our Shelter In Place Litigation Expertise
Meyers Nave’s Shelter In Place Litigation Team is currently defending counties, cities and health officials throughout California in federal and state court litigation challenging Public Health Orders, Shelter In Place Orders, and Reopening Plans related to the coronavirus pandemic. The team is tackling both the complex constitutional law issues in litigation as well as the practical enforcement issues that arise from restrictions placed on the operation of churches, gyms, nail salons, wine bars, brew pubs, restaurants, and other businesses. We have obtained victories at the district and appellate court levels. Please click here for recorded Meyers Nave webinars and Client Alerts covering developments in litigation related to COVID-19.