California asks high court not to review church's appeal of restrictions

California's ban on gatherings for indoor religious services are constitutional since the state treats religious worship the same as other comparable social activities, attorneys for Gov. Gavin Newsom argued in a brief to the U.S. Supreme Court on Monday.

Urging the high court to deny review of a case challenging Newsom's pandemic restrictions, Deputy Attorney General Seth E. Goldstein argued the justices should reject "plaintiffs' attempt to compare indoor worship services to secular activities such as shopping that do not involve large numbers of people congregating in close proximity for prolonged periods."

The opposition brief followed the high court striking down restrictions last Wednesday imposed by the state of New York that limited attendance at churches in COVID-19 hotspots from 10 to 25 people. It's expected to set a higher bar for the legality of pandemic-related policies under the First Amendment. Harvest Rock Church v. Newsom, 20-cv-06414 (C.D. Cal., filed July 17, 2020).

The order was a significant departure from two decisions issued this year upholding state public health restrictions. Roman Catholic Diocese of Brooklyn, New York v. Cuomo, 10A87 (S. Ct, filed Nov. 25, 2020).

Other churches are already considering filing lawsuits of their own in light of the finding. The Archdiocese of San Francisco might be among the first to do so as two Bay Area counties entered more restrictive tiers on Sunday that prohibit indoor services.

San Francisco Archbishop Salvatore Cordileone on Saturday called the policies "blatant discrimination" since the state groups religious worship with nonessential activities not protected by the First Amendment such as going to the gym or a museum.

Archdiocese spokesman Mike Brown said in a statement, "We are still exploring all of our options."

The state's reopening plan requires counties in the most prohibitive, purple tier to ban all indoor operations at places Newsom has categorized as nonessential, including churches and other places of worship, restaurants, movie theaters, gyms and museums. Harvest Rock Church in Pasadena moved for an emergency injunction to block as discriminatory California's application of pandemic restrictions against religious gatherings compared to other activities.

While religious exercise is prohibited indoors under the state's reopening plan, for example, there are no such restrictions for grocery stores, schools and malls, plaintiffs' attorney Mathew Stamer said. He argued those activities are treated more favorably.

"Nobody discounts that there's a pandemic, but when you look at similar gatherings, the only difference is that one is religious and one is not," the Liberty Counsel chairman said.

The Supreme Court's decision to enjoin the state of New York form carrying out its desired restrictions rested in part on policies for comparable nonreligious facilities, according to Deborah J. Fox of Meyers Nave. The court reasoned that designated essential businesses, such as liquor stores, acupuncture clinics and campgrounds, are the appropriate comparators.

But since those entities are allowed to operate without capacity limits, Deborah said the court found harsher restrictions on religious worship are not neutral and are instead discriminatory.

"So, at least according to the governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians," Justice Neil Gorsuch wrote in a concurring opinion. "Who knew public health would so perfectly align with secular convenience?"

Stamer said his client's case is better suited to strike down California's restrictions since it has "even stronger facts than in the New York case." Unlike in New York, which has allowed limited indoor services, California has completely banned it in most counties while continuing to allow some businesses to operate indoors, he noted.

Courts that have upheld restrictions on indoor worship and have found the appropriate comparators for worship services are nonreligious, social gatherings such as concerts and live event performances, rather than essential service activities. Fox said the Supreme Court did not indicate why it shifted its analysis.

Asked why it's improper to compare restrictions against First Amendment-protected religious gatherings to grocery shopping, Fox pointed to scientists' findings of how the virus spreads. "When you go into a liquor store or grocery store, you go in for a limited period of time," she said. "There's no communal activity where you're sitting in a designated spot for an hour."