FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARVEST ROCK CHURCH, INC., itself No. 20-56357
and on behalf of its member churches in
California; HARVEST INTERNATIONAL D.C. No.
MINISTRY, INC., itself and on behalf of its 2:20-cv-06414-JGB-KK
member churches in California, Central District of California,
Los Angeles
Plaintiffs-Appellants,
ORDER
v.
GAVIN NEWSOM, in his official capacity
as Governor of the State of California,
Defendant-Appellee.
Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.
In light of our court’s recent opinion in South Bay United Pentecostal
Church v. Newsom, No. 20-56358 (9th Cir. Jan. 22, 2021), Appellants’ emergency
motion for an injunction pending appeal is GRANTED in part and DENIED in
part, without prejudice to renewing the request before the merits panel in this case.
The State of California is enjoined from enforcing the following policies
against Harvest Rock Church or its member churches pending resolution of the
appeal in this case: (1) the fixed 100-person attendance limit on indoor places of
worship under Tier 2 of the State’s Blueprint for a Safer Economy; and (2) the
fixed 200-person attendance limit on indoor places of worship under Tier 3 of the
Blueprint.
This injunction does not prevent the State from enforcing the following
policies against Harvest Rock or its member churches pending resolution of the
appeal in this case: (1) the total prohibitions against indoor worship under Tier 1 of
the Blueprint and the December 3 Regional Stay at Home Order; (2) the limitations
on attendance at indoor worship services under Tiers 2, 3, and 4 of the Blueprint
that are tied to a percentage of a facility’s fire-code capacity; and (3) the State’s
restrictions on singing and chanting at indoor worship services.
IT IS SO ORDERED.
2
FILED
Harvest Rock Church, Inc. v. Newsom, No. 20-56357
JAN 25 2021
O’SCANNLAIN, J., specially concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree that, in light of our court’s recent opinion in South Bay United
Pentecostal Church v. Newsom, — F.3d —, 2021 WL 222814 (9th Cir. Jan. 22,
2021), we must largely deny Harvest Rock Church’s emergency motion for an
injunction against the State of California’s draconian restrictions on indoor
worship services.
I write separately, however, because I believe that the decision in South Bay
is woefully out of step with both the Supreme Court’s decision in Roman Catholic
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), and our own
court’s decision in Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th
Cir. 2020). A simple, straightforward application of these controlling cases
compels what should be the obvious result here: California’s uniquely severe
restrictions against religious worship services—including its total ban against
indoor worship in nearly the entire state—are patently unconstitutional and should
be enjoined. The court’s refusal to do so in South Bay cries out for correction.
I
In an effort to combat the spread of COVID-19, California’s “Blueprint for a
Safer Economy” and its December 3 Stay at Home Order completely prohibit
indoor worship services in nearly the whole state. Even in the midst of the present
1
pandemic, these measures are drastic: California is the only state in the country
that imposes such a ban, according to the brief filed in this case by an organization
participating as amicus curiae. See Brief of the Becket Fund for Religious Liberty
as Amicus Curiae, Dkt. No. 29, at 2–4. Yet, in exactly the same locales where
indoor worship is prohibited, California still allows a vast array of secular facilities
to open indoors, including (to name only a few): retail stores, shopping malls,
factories, food-processing plants, warehouses, transportation facilities, childcare
centers, colleges, libraries, professional sports facilities, and movie studios.
II
We should have little trouble concluding that these severe measures violate
the Free Exercise Clause of the First Amendment. My view on that question is
unchanged from my dissent from our denial of Harvest Rock Church’s first
emergency motion for an injunction pending appeal in October. See Harvest Rock
Church, Inc. v. Newsom, 977 F.3d 728, 731 (9th Cir. 2020) (O’Scannlain, J.,
dissenting), cert. granted before judgment, — S. Ct. — , 2020 WL 7061630
(2020), and vacated on remand, 981 F.3d 764 (9th Cir. 2020). Since then, two
intervening cases have entered injunctions against attendance caps on worship
services that were far less extreme than California’s total ban. See Roman Cath.
Diocese, 141 S. Ct. at 63; Calvary Chapel, 982 F.3d at 1228. These controlling
decisions compel the same conclusion here.
2
A
First, there can be no doubt that California’s discriminatory treatment of
houses of worship must be subject to strict scrutiny. See Roman Cath. Diocese,
141 S. Ct. at 67; Calvary Chapel, 982 F.3d at 1233. Indeed, even the South Bay
opinion could not avoid that reality. See South Bay, 2021 WL 222814, at *8–9.
B
Second, the controlling decisions also eliminate any notion that California’s
measures withstand such scrutiny.
It should go without saying that strict scrutiny is an exceedingly difficult
standard to satisfy—indeed it is “our most rigorous and exacting standard of
constitutional review.” Miller v. Johnson, 515 U.S. 900, 920 (1995). To sustain its
ban on indoor worship, the State must demonstrate that such a measure is narrowly
tailored to serve a compelling state interest. Roman Cath. Diocese, 141 S. Ct. at
67. That is, the State must show that its “inroad on religious liberty . . . is the least
restrictive means of achieving” its compelling interest. Thomas v. Rev. Bd. of Ind.
Emp. Sec. Div., 450 U.S. 707, 718 (1981) (emphasis added).
The State’s interest in controlling the spread of a deadly pandemic is
unquestionably compelling; no one disputes this. But California has not come
close to showing that its measures are narrowly tailored to that interest. As
exhaustively recounted in the South Bay decision, the State submitted many pages
3
of expert testimony setting forth its understanding of how COVID-19 is spread and
why indoor activities present a risk of such spread. But even if we were to accept
that testimony as true, 1 it does not support a total ban on indoor services as the
least restrictive means available to mitigate the risk at places of worship.
And how could it be? The South Bay decision itself proves the point that
there are many ways that the State might safeguard indoor activities that stop well
short of a total prohibition. The opinion discusses at great length the variety of less
severe measures that California has taken to allow all manner of secular activity to
take place safely indoors, including occupancy limitations; facemask, physical-
distancing, and disinfection protocols; installation of plexiglass barriers; regular
COVID-19 testing practices; and penalties the State might enforce for failures to
comply with such requirements. See generally South Bay, 2021 WL 222814, at
*11–15. The obvious conclusion should be that, because the State has found
measures like these sufficient to safeguard indoor activities as varied as running a
1
With respect, I question the salience of much of the evidence recounted in
South Bay, which, among other things, often presents assertions about issues far
beyond the scientific expertise of an infectious disease specialist. For example, the
views of an epidemiologist can hardly compel deference on matters of religion.
Thus, I see no reason for our court to have credited an epidemiologist’s assertion
that individuals come to places of worship for the specific “purpose of being
together,” South Bay, 2021 WL 222814, at *3 (quoting declaration of Dr. George
Rutherford), as opposed to any number of relevant private religious purposes—
such as to pray to God within the sacred and spiritually uplifting confines of a
church, synagogue, or mosque.
4
daycare center, shopping in a mall, working in a warehouse or factory, riding
public transportation, practicing a professional sport, attending a college class, or
filming a movie, then surely some combination of similar measures might work for
indoor religious worship as well.
Even if it weren’t otherwise clear that the State’s total ban is not the
narrowest way by which it might make indoor worship safer, the Supreme Court’s
decision in Roman Catholic Diocese dictates such a conclusion. There, the Court
held that New York’s 25-person cap on attendance at worship services was a
restriction “far more severe than has been shown to be required to prevent the
spread of the virus.” Roman Cath. Diocese, 141 S. Ct. at 67. The Court observed
that “there are many other less restrictive rules that could be adopted to minimize
the risk to those attending religious services,” including, “[a]mong other things,”
tying “the maximum attendance at a religious service . . . to the size of the church
or synagogue.” Id. Our court subsequently held that even a 50-person cap on
attendance at worship services was too inflexible to be narrowly tailored. Calvary
Chapel, 982 F.3d at 1234.
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? To paraphrase the
Supreme Court, nothing in the record recounted in South Bay supports the
conclusion that “admitting [even a single person] to a 1,000-seat church or 400-
5
seat synagogue would create a more serious health risk than the many other
activities that the State allows.” Roman Cath. Diocese, 141 S. Ct. at 67. Although
we judges “are not public health experts,” id. at 68, we cannot simply forfeit all
common sense to the State’s assertions. We must instead insist upon a “serious
examination of the need for [the State’s] drastic measure[s].” Id. Under any
meaningful examination, California’s complete ban on indoor worship fails strict
scrutiny—just as New York’s and Nevada’s more permissive regimes did before.
III
The remaining Winter factors also favor an injunction. See Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Because the State’s restrictions violate the Free Exercise Clause of the First
Amendment, there “can be no question” that their continued enforcement would
cause irreparable harm to the religious believers and places of worship currently
prohibited from worshipping indoors. Roman Cath. Diocese, 141 S. Ct. at 67.
An injunction to protect these constitutionally guaranteed rights undoubtedly
serves the public interest. Although the State’s concern for mitigating a public
health crisis is undeniably weighty, “[n]o public interest is served by maintaining
an unconstitutional policy when constitutional alternatives are available to achieve
the same goal.” Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d Cir.
2020); see also Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (“[T]he
6
injunction serves the interests of the general public by ensuring that the
government’s . . . procedures comply with the Constitution.”).
“[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”
Roman Cath. Diocese, 141 S. Ct. at 68. Thus, as both the Supreme Court and our
court have agreed: Even in a case with such vital interests on each side, the balance
of harms and the public interest require us to enjoin the State’s unconstitutional
practices. Indeed, neither court appears to have had much difficulty reaching such
a conclusion. See id. at 67–68; Calvary Chapel, 982 F.3d at 1234.
Until now.
7
FILED
Harvest Rock Church v. Newsom, No. 20-56357
JAN 25 2021
Christen, Circuit Judge, concurring
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I write separately, and briefly, to clarify a few points.
First, when Harvest Rock filed its emergency motion for injunction pending
appeal, two other emergency motions were pending in which houses of worship
challenged California’s response to the COVID-19 pandemic. One of those cases,
Gish v. Newsom, No. 20-56324, was consolidated with South Bay Pentecostal
Church v. Newsom, No. 20-56358, but the issues in Harvest Rock’s motion were
not aligned with those presented in South Bay. In particular, the briefing in South
Bay addressed California’s December 3, 2020 Stay at Home and an order issued
December 19, 2020 by Los Angeles County.
The posture of these challenges changed at the January 4, 2021 argument
held on Harvest Rock’s motion because the parties agreed to supplement their
briefs to address the December 3, 2020 Stay at Home Order. Additionally, the
order issued by Los Angeles County was withdrawn. At that point, the issues
raised by Harvest Rock’s motion became aligned with those in South Bay, and
under our court rules, the South Bay panel had priority to issue merits ruling. See
General Order 4.1(a). Oral argument was held in South Bay on January 15, 2021.
To avoid issuing a ruling on Harvest Rock’s emergency motion that might have
conflicted with South Bay’s merits ruling—especially at a time when California’s
public health system is under tremendous strain—it was important to allow the
South Bay panel time to issue its opinion.
Second, because the South Bay panel has priority, the relief ordered here
mirrors the relief granted in South Bay.