On Friday, May 22, the Ninth Circuit Court of Appeals voted 2-1 to deny the request of South Bay United Pentecostal Church for an immediate injunction against Governor Newsom’s stay-at-home order prohibiting attendance at religious services. The church, located in Chula Vista, sued state and San Diego County officials, alleging that the stay-at-home orders violated their constitutional rights.

In dissenting from the denial, Trump appointee Daniel Collins expressed alarm at “the astonishing breadth of this assertion of government power over the citizenry, which in terms of its scope, intrusiveness, and duration is without parallel in our constitutional tradition.”

A week earlier, federal district court judge Cynthia Bashant denied the church’s petition for a temporary restraining order prohibiting the state and county from enforcing their stay-at-home orders except to the extent consistent with sanitation, distancing, and other protocols applicable to businesses. The church immediately appealed the denial to the Ninth Circuit and simultaneously asked the higher court to issue the order itself, pending a full hearing of its appeal.

Clinton appointee Barry Silverman and Obama appointee Jacqueline Nguyen voted to deny the church’s request, holding that the church was unlikely to prevail on its religious freedom claims, because there was no proof that the state was “impos[ing] burdens only on conduct motivated by religious belief.” The judges added, “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.”

Judge Collins, however, pointed out the unprecedented nature of the current stay-at-home order. Rather than restricting particular activities likely to spread the virus, Gov. Newson’s order “presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities.” While most other businesses are now in the process of re-opening as part of Phase II of the governor’s plan, by explicitly relegating “religious services” to Phase III of re-opening, “without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services, the State’s Reopening Plan undeniably discriminates on its face against religious conduct.”

Judge Collins noted that, far from the shutdown being neutrally applied, “The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, ‘religious services’ have not made the cut. . . . Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person ‘religious services’—merely because they are ‘religious services’—are categorically not permitted to take place even if they follow the same guidelines.”

Also lacking in neutrality is the state’s argument that there is too much risk congregants will not follow the rules. This position “illogically assumes that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace,” Judge Collins wrote.

The Ninth Circuit has set an expedited briefing schedule for the full appeal. Gov. Newsom announced Friday that new church re-opening guidelines will be issued this week. The guidelines could pre-empt further action by the court.

The above comes from a May 25 email sent to Cal Catholic by a court insider.