(The Center Square) – Liberty Counsel filed a reply brief to the Ninth Circuit Court of Appeals Friday on behalf of Harvest Rock Church and Harvest International Ministry in its ongoing case against the state of California after the Supreme Court granted its injunction in part last month.
Liberty Counsel is requesting the appeals court reverse a district court’s ruling and issue a preliminary injunction against Gov. Gavin Newsom’s ongoing faither-based restrictions, which includes a 25 percent building capacity limit for houses of worship located in the state’s Tier 1 sector.
After the high court’s 6-3 decision enjoining California from enforcing the total ban on worship in Tier 1 of the “Blueprint” pending the Ninth Circuit ruling and a petition filed with the Supreme Court, Newsom imposed the 25 percent capacity limit.
The Supreme Court’s ruling in March combined cases brought by South Bay United Pentecostal Church of San Diego, represented by the Thomas More Society, and Harvest Rock Church and ministries, represented by Liberty Counsel.
Liberty Counsel’s brief states that Newsom “has never ‘permitted’ churches to worship in California and only stopped purporting to impose total prohibitions and discriminatory restrictions on religious worship services after he was dragged to the Supreme Court three times.”
It also contends that they “have scratched and clawed for lasting relief for 250 days now, and this Court should reverse the district court’s refusal to enjoin the Governor from enforcing his discriminatory restrictions on religious worship services. Though the total ban on worship in Tier 1 and 100 and 200 person limits in Tiers 2-3 have been enjoined pending appeal, Tiers 1-4 continue to discriminate against churches, as does the singing and chanting ban.”
Liberty Counsel is requesting that the Ninth Circuit grant a preliminary injunction to prevent Newsom from reimposing his total ban in Tier 1, his 100-and 200-person limits in Tiers 2-3, and to strike down the remaining restrictions imposed on houses of worship that remain in Tiers 1-4, including the singing and chanting ban.
“The Supreme Court ruled that Governor Gavin Newsom’s total ban on worship must come to an end,” Liberty Counsel Founder and Chairman Mat Staver said. “However, he continues to violate the First Amendment by discriminating against houses of worship. Every person in California has the constitutional right to worship, and these churches will continue to press forward until religious freedom is totally restored.”
In January, a three-judge Ninth Circuit panel had already denied South Bay’s request to overturn the state’s restrictions barring worship services indoors. It agreed the San Diego-area church was suffering “irreparable harm,” but argued that the state’s policies solely against houses of worship did not violate its First Amendment rights.
“We are mindful that ‘even in a pandemic, the Constitution cannot be put away and forgotten,’” Judge Kim McLane Wardlaw wrote in the court’s 50-page opinion. “But we do not think this is what California has done.”
The opinion expressed skepticism of Newsom’s limits imposed on worship attendance, suggesting they could be struck down. It also said the church could likely succeed in its claim that Newsom’s 100- and 200-person attendance caps were unconstitutional. The court sent the case back to the lower court to evaluate Newsom’s attendance cap limit.
Last month, Justices Neil Gorsuch and Clarence Thomas said they would have granted the churches’ requests in their entirety, including lifting the singing and chanting bans still in place.
“Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in,” Gorsuch wrote.
Justice Elena Kagan wrote in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, that “Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our case law, exceeds our judicial role, and risks worsening the pandemic. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.”
Kagan also argued that because it’s warmer in California than other states that being able to worship outside made the ban on indoor worship is less onerous. “Given California’s mild climate, that restriction – the one the Court today lifts for houses of worship alone – does not amount to a ban on the activity,” she wrote.
Chief Justice John Roberts wrote, “The State’s present determination – that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero – appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake. Deference, though broad, has its limits.”
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