(CN) — A Ninth Circuit panel Friday affirmed a federal judge’s denial of a church’s bid to block California’s temporary ban on indoor worship during the Covid-19 pandemic, but said the state could not impose attendance caps in less restrictive tiers of its health order.
California’s public health order bars any indoor gathering for religious services when an increase in both Covid-19 infections and hospitalizations strain local health care systems.
The panel agreed that the church is suffering “irreparable harm” by not being allowed to hold worship services indoors with its members, but said the measures are necessary to curb viral spread.
“Although there is no record evidence that attendance at South Bay’s services in particular has contributed to the spread of the virus, the record does evidence outbreaks tied to religious gatherings in San Diego County and in the Southern California region,” U.S. Circuit Judge Kim McLane Wardlaw, a Barack Obama appointee, wrote in the court’s opinion.
“Indeed, it is difficult to see how allowing more people to congregate indoors will do anything other than lead to more cases, more deaths, and more strains on California’s already overburdened healthcare system.”
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 transmission of the novel coronavirus.
Attorneys for South Bay United Pentecostal Church have argued in court proceedings that places of worship are essential and should be allowed to operate like other sectors which remain open during the novel coronavirus pandemic.
Twice the church has appealed U.S. District Judge Cynthia Bashant’s denial of its request to halt both the state and San Diego County’s enforcement of indoor worship restrictions.
Bashant, an Obama appointee, found California acted neutrally in implementing its health orders and that the state has demonstrated its interest in protecting residents’ health.
In a Jan. 15 hearing, attorneys for the church told the Ninth Circuit the state should abide by the U.S. Supreme Court’s decision in Roman Catholic Diocese of Brooklyn v. Cuomo, which overturned New York’s Covid-19-related limits on indoor religious services.
Attorneys for California countered, arguing the restrictions still allow for unlimited attendance at outdoor religious gatherings under the state’s regional stay at home order and the Blueprint for A Safer Economy.
In a 50-page published opinion issued Friday, the panel sided with the state, saying the church has not shown California health orders produce “disparate treatment” and that the ban clearly applies to all indoor sectors.
“We are mindful that ‘even in a pandemic, the Constitution cannot be put away and forgotten,’” Wardlaw wrote, citing the Roman Catholic Diocese decision. “But we do not think this is what California has done.”
The church has not demonstrated it can succeed on its claim that California unfairly targeted indoor religious gatherings with harsh restrictions, the opinion said, adding that health orders barring anyone from singing and chanting indoors are directly tied to the state’s interest in stemming the spread of Covid-19.
“Such conduct propels respiratory droplets farther and thus mitigates the effects achieved by social distancing,” Wardlaw wrote of California’s restrictions. “Moreover, mask-wearing cannot completely impede the risk of transmission because of the forceful nature of the expulsion.”
The panel held that the church would likely succeed on its claim that California’s 100 and 200-person attendance caps in tiers 2 and 3 of the Blueprint are unconstitutional under the strict scrutiny test.
California has imposed restrictions on non-religious sectors that are not comparable to the rules imposed on indoor worship, the panel held.
“Whereas the State has submitted substantial evidence as to why indoor worship is unsafe at any level in counties where COVID-19 is ‘widespread’ and ICU capacity is non-existent, we cannot find record evidence to support its assertion that the 100-person cap in Tier 2 and 200-person cap in Tier 3 are necessary to achieve its goal in further slowing community spread,” Wardlaw wrote.
“And while 100 or 200 people could overwhelm a small chapel, a large church the size of South Bay could easily implement social distancing with much higher numbers.”
The panel remanded the matter to Bashant’s court with instruction to enjoin the state’s attendance caps.
An attorney for the California Justice Department did not immediately respond to a request for comment.
The panel affirmed Bashant’s ruling and found she hadn’t abused her discretion in denying an injunction since California still allows outdoor worship gatherings.
“Although South Bay may not be able to hold indoor worship services, California has left open other avenues for worship that pose substantially less risk for further spread of COVID-19,” Wardlaw wrote. “Accordingly, having evaluated the likelihood of success on the merits, the potential for irreparable injury, the balance of equities, and the public interests implicated by this case, we cannot conclude that the district court abused its discretion in refusing to grant South Bay’s requested injunction.”
A representative for the church did not immediately respond to a request for comment on the decision.
U.S. Senior Circuit Judge Richard Clifton, a Bush appointee, and U.S. District Judge Timothy Hillman, an Obama appointee, joined the opinion.