A federal appeals court appears poised to determine that Governor Gavin Newsom’s month-long coronavirus restrictions on places of worship violate Californians’ rights to religious freedom, but a majority of judges in this case sounded unlikely on Monday that they would be closer to home immediately would undo restrictions imposed last month due to a record surge in infections.
Sometimes during a lively argument on Monday afternoonThe three judges in the 9th Court of Appeal appeared to be arguing over aspects of the state’s ban on indoor worship.
Obama-appointed Judge Morgan Christen agreed with Reagan-appointed Judge Diarmuid O’Scannlain that aspects of the so-called Newsom blueprint announced last April are likely, according to standards set in a 5-4 ruling by the Supreme Court November is unconstitutional beyond New York’s limits of religious observation.
“The Supreme Court made a very strong exception to a numerical limit that was imposed regardless of the size of the facility,” said Christen.
“Why does it have to be a total ban?” O’Scannlain asked, noting that indoor worship is prohibited even if a church has massive capacity. “Why should the rules be the same regardless of size?”
“Our experts have said that if the virus is as widespread as it is and raging as it is … indoor gatherings are just too much of a risk,” said California Assistant Attorney General Todd Grabarsky.
“It’s very worrying,” replied Christians. “I telegraphed that this part of the blueprint worries me.”
However, Christians said the court did not have enough written arguments from the state and religious freedom advocates about the stay-at-home orders issued by the state on Dec. 3 after infections increased and intensive care unit capacity decreased.
While indoor worship is still banned, the rules for staying at home place stricter restrictions on some commercial activities, so the restrictions on churches are arguably fewer outliers. For example, the state forced restaurants to dine al fresco and hair salons to close, according to December orders that apply to almost all Californians.
“It’s the state’s position that doesn’t aim or single out religious services under the blueprint, but that becomes more apparent under the stay-at-home order,” Grabarsky said. “The context in which this regional home order was issued was in this truly massive unprecedented increase in COVID infection, hospital rationing and death.”
The third judge on the jury, Clinton-appointed Johnnie Rawlinson, was less clear about the state’s ongoing ecclesiastical restrictions.
She recognized the implications for religious practice, but said the state’s public health interests were imperative. “The state also has a very strong interest in protecting both churchgoers and non-churchgoers from this disease,” said Rawlinson.
However, Rawlinson agreed with Christians that the court has not yet been able to rule on the new order at home.
“We have no clarification on how the factors outlined by the Supreme Court apply to the facts changed by the stay home order,” Rawlinson said.
O’Scannlain alleged the court already knew enough about the December regulation and the facts behind it to rule on it. “I don’t see why it makes a difference – a relevant difference,” he said.
An attorney for Harvest Rock Church in Pasadena and allied churches, Mat Staver, said the limits on worship in California are strict.
“This is the most restrictive provision in the entire nation,” complained Staver. “They just don’t trust people to gather and worship, but they trust the same people to go into the factories, the big crate centers, the grocery stores and touch the same items and handle that everyone else is carrying in their hands on. “
Christians noted that the state’s medical experts concluded that indoor worship was different from shopping because group worship was a social activity. However, Staver told judges that the Supreme Court’s ruling on New York’s borders means the courts shouldn’t turn to medical professionals. That ruling represented a significant shift in court as new Trump-appointed Judge Amy Coney Barrett led the court to effectively reverse its previous stance on state officials.
“Honestly, the Supreme Court … rejected the experts,” said Staver of the November ruling.
Newsom’s December order calls for regions where ICU capacity has dropped below 15 percent to stay at home. This currently applies to four of the five areas that California has drawn, which comprise virtually the entire population of the state – fewer than one million of the approximately 40 million inhabitants of California live in the still open rural northern region.
These restrictions are likely to last for weeks or even months as the state extends orders for regions where rising case numbers have continued to weigh on hospitals. O’Scannlain expressed concern about the indefinite duration of these restrictions.
“More likely we’re talking months, if not summer,” he said. “We are talking about protecting a constitutional law that is enshrined in the first amendment.”
Two days before Christmas, the same appellate court voted 2-1 to deny Harvest Rock and its related churches emergency aid to legally hold indoor services on Christmas Eve and Christmas Day. O’Scannlain said the case of the churches was “severe” and he suggested that his colleagues were indifferent to the importance of the holiday.
“We should have given the church at least the temporary relief it needed to ensure that its members could freely exercise the basic right to practice their Christian religion on one of the holiest Christian days of the year,” he wrote.
Jeremy White contributed to this report.