5 churches seek permanent end to worship bans after high court rules again

Five California churches exempted by the U.S. Supreme Court from complying with bans on indoor worship that were part of a program intended to curb the spread of the coronavirus moved Monday to force Santa Clara County to permanently permit indoor religious gatherings.

"We're asking to be treated the same as secular activities and businesses," said Sharonrose Cannistraci, a Los Gatos-based attorney representing Gateway City Church.

Santa Clara County revised its guidelines after the high court on Friday evening blocked it from enforcing the policy while litigation continues. It was the most recent in a series of unsigned orders from the justices preventing California, state, county and city officials from banning religious gatherings and practices in the name of protecting the public health.

"This outcome is clearly dictated by this court's decision in South Bay United Pentecostal Church v. Newsom," the court wrote, pointing to an order it issued in February clearing the way for churches to hold indoor services until their lawsuits are resolved.

The Supreme Court's order was "issued without any analysis at all of the county's gathering rules, which have always been neutral and applied equally to all gatherings across the board," Santa Clara County Counsel James R. Williams said in a statement.

"Indoor gatherings of all kinds remain very risky, and we continue to urge all religious institutions to carefully follow the public health recommendations to avoid spread of COVID-19 among their congregations and the broader community," he said.

California was ordered by the high court in February to lift a complete ban on indoor services in areas with widespread or substantial spread of the virus to allow for attendance of up to 25% of a building's capacity. South Bay United Pentecostal Church v. Newsom, 20-cv-00865 (S.D. Cal., filed May 8, 2020).

But Santa Clara County continued to ban gatherings indoors for activities including religious worship, political events, weddings, funerals and movie showings. Essential activities were permitted to operate at 20% capacity.

The county will likely argue that the case is moot, because it already changed its directives to allow for the relief churches are seeking.

In a filing to the 9th U.S. Circuit Court of Appeals, the churches emphasized that county health officials could again impose restrictions stricter than the state. Gateway City Church v. Newsom, 20-cv-08241 (N.D. Cal., filed Nov. 23, 2020).

Santa Clara is expected to move out of the most restrictive purple tier on Tuesday. While California allows for indoor dining and permits gyms and movie theaters in the red tier to operate at reduced capacity, it's unknown how the county fashioned its health directives.

If secular businesses are allowed to operate at increased capacity under the new guidelines, Cannistraci argued that churches have to be allowed the same flexibility.

"They have to keep us open in the same capacity," she said.

The churches have pointed to an exemption for airports to operate at unlimited capacity as evidence of discriminatory treatment.

But the county has maintained that government action that's neutrally applied can be constitutional even if it incidentally burdens religious activity. The indoor ban, Williams said, is equally applied to gatherings of all types in the county, regardless of whether they are religious or secular.

The high court majority's one-page order stated, "The Ninth Circuit's failure to grant relief was erroneous." It did not repeat previous explanations of its orders in favor or churches in which justices highlighted the preeminence of the First Amendment's freedom of religion guarantee.

Justices Elena Kagan, Stephen Breyer and Sonia Sotomayor dissented, indicating the courts should not overrule the health officials.