Harvest Rock Church, Inc. v. Newsom

977 F.3d 728

HARVEST ROCK CHURCH, INC., itself and on behalf of its member churches in California; Harvest International Ministry, Inc., itself and on behalf of its member churches in California, Plaintiffs-Appellants,

v.Gavin NEWSOM, in his official capacity as Governor of the State of California, Defendant-Appellee.

No. 20-55907

United States Court of Appeals, Ninth Circuit.

Filed October 1, 2020

ORDER

Harvest Rock Church, Inc., and Harvest International Ministry, Inc., (Harvest Rock) challenge the constitutionality of California Governor Gavin Newsom's COVID-19 Executive Orders and related restrictions (Orders) as they apply to in-person worship services. The district court denied Harvest Rock's request for a preliminary injunction barring enforcement of the Orders as to its in-person worship services. Harvest Rock appealed and has filed an emergency motion asking this court to enjoin enforcement of the Orders pending appeal.

In order to demonstrate that an injunction pending appeal is warranted, Harvest Rock must show that it is likely to succeed on the merits, that it is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ; see also Feldman v. Ariz. Sec'y of State's Office , 843 F.3d 366, 367 (9th Cir. 2016) ("The standard for evaluating an injunction pending appeal is similar to that employed by district courts in deciding whether to grant a preliminary injunction."). As to a likelihood of success on the merits, Harvest Rock must demonstrate that it is likely this court will conclude the district court abused its discretion in denying the preliminary injunction. See, e.g. , Lopez v. Heckler , 713 F.2d 1432, 1436 (9th Cir. 1983) (abuse of discretion standard governs an appeal from the denial of a preliminary injunction). Our review of the denial of a preliminary injunction is "limited and deferential." Southwest Voter Registration Educ. Project v. Shelley , 344 F.3d 914, 918 (9th Cir. 2003) (en banc). We consider "only the temporal rights of the parties until the district court renders judgment on the merits of the case based on a fully developed record." Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv. , 422 F.3d 782, 793 (9th Cir. 2005) (citation omitted).

We find that Harvest Rock has not shown a likelihood of success on its argument that the district court abused its discretion by declining to enjoin the Orders. The evidence that was before the district court does not support Harvest Rock's arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters. Some congregate activities are completely prohibited in every county, such as attending concerts and spectating sporting events. The dissent states that the restrictions applicable to places of worship ‘do not apply broadly to all activities that might appear to be conducted in a manner similar to religious services,’ but does not provide support for this point. By our read the restrictions on theaters and higher education are virtually identical.

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services. Harvest Rock did not offer a competing expert or any other evidence to rebut Dr. Watt's opinion that congregate events like worship services are particularly risky. Because the district court based its order on the only evidence in the record as to the risk of spreading COVID-19 in different settings, Harvest Rock is unlikely to show that the district court abused its discretion.

We also conclude that Harvest Rock failed to demonstrate that an injunction pending appeal is in the public interest. The Supreme Court considered and declined a similar request to enjoin application of California's Orders as to worship services in South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1614, 207 L.Ed.2d 154 (2020) (Roberts, C.J., concurring) (deference to state officials is "especially" warranted where "a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground."). Harvest Rock has not shown that the restrictions at issue in this appeal are materially different than those presented in South Bay United Pentecostal, and though we are not bound by it, we are persuaded by the Supreme Court's conclusion that injunctive relief is not warranted. See United States v. Montero–Camargo , 208 F.3d 1122, 1132 n. 17 (2000) (en banc) (non-binding Supreme Court dicta is accorded "appropriate deference" (citation omitted)).

For these reasons, the emergency motion for an injunction pending appeal (Docket Entry No. 6) is DENIED .

We GRANT the motion to file the amicus brief in support of the Governor for purposes of this emergency motion (Docket Entry No. 9).

O'SCANNLAIN, Circuit Judge, dissenting:

At present, in 18 counties in California—home to more than 15 million residents and including its most populous county, Los Angeles—indoor religious worship services are completely prohibited.¹ California insists that this drastic measure is necessary to fight the ongoing global COVID-19 pandemic—a worthy and indeed compelling goal of any State. Yet, in these same counties, the State still allows people to go indoors to: spend a day shopping in the mall, have their hair styled, get a manicure or pedicure, attend college classes, produce a television show or movie, participate in professional sports, wash their clothes at a laundromat, and even work in a meatpacking plant.

The Constitution allows a State to impose certain calculated, neutral restrictions—even against churches and religious believers—necessary to combat emergent threats to public health. But the Constitution, emphatically, does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities. See Calvary Chapel Dayton Valley v. Sisolak , ––– U.S. ––––, 140 S. Ct. 2603, 2605, ––– L.Ed.2d –––– (2020) (mem.) (Alito, J., dissenting); South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 140 S. Ct. 1613, 1615, 207 L.Ed.2d 154 (2020) (mem.) (Kavanaugh, J., dissenting). Because California's present coronavirus-related initiatives do exactly that, I respectfully dissent from the majority's decision not to enjoin them pending Harvest Rock Church's appeal in this case.

I

I first clarify a point that is somewhat obscured by the majority's decision: we are neither bound nor meaningfully guided by the Supreme Court's decision to deny a writ of injunction against California's restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church , 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California's restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to "the precise issues presented and necessarily decided." Mandel v. Bradley , 432 U.S. 173, 176, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam). In that case, the Supreme Court considered whether to issue a writ of injunction under the All Writs Act, 28 U.S.C. § 1651(a), a more demanding standard than that which applies to the motion for an injunction pending appeal here. Compare Hobby Lobby Stores, Inc. v. Sebelius , 568 U.S. 1401, 1403, 133 S.Ct. 641, 184 L.Ed.2d 448 (2012) (Sotomayor, J., as Circuit Justice) (discussing the standard for issuing a writ of injunction, which is an "extraordinary" measure to be "used sparingly" and "only when it is necessary or appropriate in aid of our jurisdiction and the legal rights at issue are indisputably clear" (alterations and internal quotation marks omitted)), with Se. Alaska Conservation Council v. U.S. Army Corps of Eng'rs , 472 F.3d 1097, 1100 (9th Cir. 2006) ("In deciding whether to grant an injunction pending appeal, the court balances the plaintiff's likelihood of success against the relative hardship to the parties." (internal quotation marks omitted)). Without any opinion of the Court, we have no guidance whatsoever—not even in the form of "dicta" as the majority suggests, Maj. at 731—as to why the Court declined to provide such an extraordinary remedy, and we certainly have no basis to infer that a majority of the Court agreed upon some unstated rationale that somehow applies equally here.² Cf. Makekau v. Hawaii , 943 F.3d 1200, 1205 (9th Cir. 2019) ("[T]he mere fact that the injunction order issued under the All Writs Act does not prove that the Supreme Court ... addressed the merits [of the underlying claim].").

II

Turning to the motion before us, I respectfully disagree with the majority's conclusion that Harvest Rock Church is unlikely to succeed on the merits of its free exercise challenge to California's severe restrictions on religious worship in the State.

There is no doubt that California's COVID-19 scheme (described more fully below) imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not "neutral and of general applicability," its actions must survive strict scrutiny. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 531–32, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). "The Free Exercise Clause bars even subtle departures from neutrality on matters of religion."...