(CN) — A Ninth Circuit judge Monday expressed concern that California’s effort to curb Covid-19 transmission by banning all indoor religious gatherings could extend into the summer months or beyond if the pandemic worsens, further restricting people’s constitutional right to practice their religion.
Senior U.S. Circuit Judge Diarmuid F. O’Scannlain asked in a virtual hearing whether California’s public health orders needed to be so restrictive that all indoor worship, including small gatherings, would be prohibited.
State officials have shut down vast sectors of the Golden State’s economy since the beginning of the pandemic and banned certain activities in order to curb viral spread.
As the number of infections and deaths have increased during the recent surge and hospitals are overwhelmed by the influx of Covid-19 patients, officials have tightened restrictions. Last week, a three-week regional stay-at-home order that began early last December for Southern California was extended.
“I’m always suspicious of temporary orders,” O’Scannlain, a Reagan appointee, said in the hearing. “There’s no indication this order will expire in a week or two, or if it will extend likely months into the summer.”
O’Scannlain led the three-judge panel hearing arguments Monday in Harvest Rock Church’s appeal of a district court’s denial of its request to block state restrictions on indoor worship.
The Christian organization, which has over 160 member churches across the Golden State, had submitted a second request for a temporary restraining order to block California’s rules. U.S. District Judge Jesus Bernal, who struck down a similar request from the church months before, denied the request.
Bernal wrote in his ruling that Harvest Rock is still free to hold outdoor services, just as any religious organization is allowed to do under California’s rules, and that lifting the ban would likely contribute to the spread of Covid-19.
The case had been remanded to Bernal’s court after the U.S. Supreme Court vacated his ruling with instructions to consider the high court’s opinion in Roman Catholic Diocese of Brooklyn v. Cuomo, which overturned New York’s Covid-19-related limits on indoor religious services.
On appeal at the Ninth Circuit, attorneys for Harvest Rock argued the state’s Blueprint for a Safer Economy and regional stay-at-home orders unfairly target religious institutions with harsh restrictions on indoor worship while allowing grocery stores and malls to remain open.
The church had asked the Ninth Circuit for a preliminary injunction allowing worship indoors until the appeal is decided — specifically that restrictions be lifted in time for Christmas service — but its request was denied.
In oral arguments Monday, Mat Staver of Liberty Counsel, an attorney representing Harvest Rock, said the state discriminated against religious organizations by stating, for example, certain houses of worship may lack the sophisticated ventilation systems needed to sufficiently replace indoor air enough to reduce the risk of viral spread.
“It’s not only wrong, it’s offensive and stereotypical,” Staver told the panel, adding that Harvest Rock’s Pasadena location is also a state-of-the-art concert hall.
U.S. Circuit Judge Morgan Christen and O’Scannlain said Harvest Rock neglected to file pre-hearing briefs on whether California’s regional stay home order unfairly singles out houses of worship more than the Blueprint does.
The oversight impeded the panel’s analysis of the matter and was noted several times during the hearing.
Staver filed a supplemental brief on the issue after the hearing.
Staver discounted the state’s expert testimony warning of the increased risks of viral spread associated directly with indoor religious services, saying that the panel should do as the Supreme Court did and reject those arguments about elevated risk.
Christen, an Obama appointee noted that expert testimonies in each matter were different and specific to each state’s pandemic response.
California’s experts have said in court documents that viral spread is elevated for indoor worship because of people’s proximity to each other and the duration of services, even if every attendee wears a face covering and physically distances from others.
Christen did express concern about the Blueprint’s ban on indoor worship, suggesting the panel could enjoin part of the rule they may find unconstitutional while also giving the state time to correct it.
If the court takes any action that allows indoor worship, it is not clear that any surge of Covid-19 infections would stem from that activity, Christen said.
Todd Grabarsky, a California deputy attorney general, told the panel that California’s latest surge in Covid-19 infections and deaths shows that masking, physical distancing and other measures are not enough to mitigate viral spread.
“Indoor gatherings pose an especially higher risk where the virus is widespread and hospitals can’t treat those who are ill,” Grabarsky said, adding that state officials have evidence of Covid-19 outbreaks tied to worship services.
Grabarsky said the panel should deny the injunction request because the state has a compelling interest in stopping the spread of SARS-CoV-2, the virus that causes Covid-19.
In court papers, attorneys for California said public health orders are neutral and also rejected the church’s argument that chanting during indoor worship is not unlike singing inside a restaurant or mall.
“No one can sing ‘Happy Birthday’ indoors at a restaurant as these are closed in Tier 1 counites and under the Regional Stay-at-Home order,” the defendants’ supplemental brief stated. “And singing in restaurants and gathering at malls to sing Christmas carols would be prohibited under the guidance that applies across-the-board to all indoor gatherings and prohibits singing.”
U.S. Circuit Judge Johnnie B. Rawlinson, a Clinton appointee, rounded out the panel, which took the matter under submission.