9th Circuit panel asks if US high court ruling applies to San Diego church

Advocates for churches that say Gov. Gavin Newsom's order restricting indoor worship services due to the COVID-19 virus runs afoul of the U.S. Constitution, and an attorney for the state faced sharp questioning by a 9th U.S. Circuit Court of Appeals panel on Friday.

Charles S. LiMandri, a partner with LiMandri & Jonna LLP who represents South Bay United Pentecostal Church in San Diego County, asked the panel to reverse a federal judge who denied its request for a preliminary injunction allowing indoor services.

He relied on a November ruling by the U.S. Supreme Court that struck down restrictions on churches and synagogues in New York that were issued due to the pandemic. Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct 63 (2020).

But the high court's ruling, which followed the addition of Justice Amy Coney Barrett following the death of Justice Ruth Bader Ginsburg, who had sided with state restrictions, may not mean the churches get an automatic win.

9th Circuit Judge Richard R. Clifton, an appointee of President George W. Bush, noted the state argues its regulations survive strict scrutiny because they are narrowly tailored. He asked LiMandri why U.S. District Judge Cynthia A. Bashant of San Diego was wrong in denying his motion.

He grew impatient when LiMandri repeated the Supreme Court's decision in Roman Catholic Diocese.

"I'm trying to give you an opportunity to focus on the case you have in front of us," Clifton said. "That [Supreme Court decision] may carry the day someday, but I'm not sure it helps with the case in front of me."

LiMandri dismissed the state's evidence, which Deputy Attorney General Todd Grabarsky said was based on public health experts, as "isolated, anecdotal newspaper accounts early in the pandemic."

He said the church had not had a single coronavirus case in 10 months, adding it had taken precautions to stop the spread of the virus in an enclosed space. South Bay United Pentecostal et al. v. Newsom et al., 20-56358 (9th Cir., filed Dec. 22, 2020).

But Clifton also questioned Grabarsky about the limits of Newsom's order. "A state prohibition of indoor worship: Is that the best we can do? The evidence of outbreaks from worship services seems more anecdotal than scientific," the judge said.

Grabarsky stood his ground, citing "a harrowing, grim surge of deaths right now. In San Diego, where this church is located, there is no ICU [intensive care unit] availability."

Comparing church services to concert halls and other crowded indoor venues, Grabarsky said "transmission is more likely if people stand next to each other for extended periods of time."

U.S. District Judge Timothy S. Hillman of Massachusetts, sitting on the panel by designation, asked about the singing that takes place during indoor church services.

"It can be done safely," LiMandri said, with social distancing and masks worn by church members.

9th Circuit Judge Kim McLane Wardlaw, an appointee of President Bill Clinton, commented, "There's no evidence of that," she said.

LiMandri, however, said the government was inconsistent in applying its own restrictions, allowing liquor stores and marijuana dispensaries to remain open as essential while shutting down indoor church services.

"Churches .... are essential services under the First Amendment of the Constitution," he told the panel. "If Costco is open, churches need to be open."

A similar case was argued Friday afternoon before the same panel, but the attorney for several plaintiffs, Harmeet K. Dhillon of Dhillon Law Group Inc., had not filed for a preliminary injunction yet.

At most, the panel would send the case back to district court, the judges told her.