S. Bay United Pentecostal Church v. Newsom

Charles S. Limandri (argued), Paul M. Jonna, Jeffrey M. Trissell, Limandri & Jonna LLP, Rancho Santa Fe, California; Thomas Brejcha, Peter Breen, and Christopher A. Ferrara, Thomas More Society, Chicago, Illinois; Harmeet K. Dhillon and Mark P. Meuser, Dhillon Law Group, Inc., San Francisco, California; for PlaintiffsAppellants.

Todd Grabarsky (argued) and Lisa J. Plank, Deputy Attorneys General; Paul Stein, Supervising Deputy Attorney General; Thomas S. Patterson, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Los Angeles, California; for DefendantsAppellees Governor Gavin Newsom, Attorney General Xavier Becerra, and Public Health Officer Dr. Sonia Angell.

Jeffrey P. Michalowski (argued) and Timothy M. White, Senior Deputies; Thomas E. Montgomery, County Counsel; Office of County Counsel, San Diego, California; for Defendants-Appellees Dr. Wilma J. Wooten, Helen Robbins-Meyer, and William D. Gore.

Before: Kim McLane Wardlaw and Richard R. Clifton, Circuit Judges, and Timothy Hillman,^* District Judge.

OPINION

Opinion by Judge Wardlaw

The State of California is facing its darkest hour in its fight against the COVID-19 pandemic, with case counts so high that intensive care unit capacity is at 0% in most of Southern California. To slow the surging community spread, California's public health and epidemiological experts have crafted a complex set of regulations that restrict various activities based on their risk of transmitting the disease and the projected toll on the State's healthcare system. Under this framework, California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services "essential," but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk.

South Bay United Pentecostal Church challenged this restriction, along with others, under provisions of the United States and California Constitutions. In its challenge brought under the Free Exercise Clause of the First Amendment of the United States Constitution, South Bay argues that the current restrictions on indoor services prohibit its congregants' Free Exercise of their theology, which requires gathering indoors. The district court made multiple findings of fact on an extensive evidentiary record and concluded

that California's restrictions on indoor worship are narrowly tailored to meet its compelling—and immediate—state interest in stopping the community spread of the deadly coronavirus. Because we conclude that the district court did not abuse its discretion, we affirm its denial of South Bay's request to enjoin California's temporary prohibition on indoor worship under the Regional Stay at Home Order and Tier 1 of the Blueprint. We also conclude that South Bay has not demonstrated a likelihood of success on the merits with respect to its challenge to California's state-wide ban on indoor singing and chanting. We cannot, however, conclude that the 100- and 200-person attendance caps on indoor worship under Tiers 2 and 3 of the Blueprint survive strict scrutiny.¹

I.

A.

1.

California's Early Response to COVID-19

In March 2020, ordinary life came to a grinding halt when the severe respiratory syndrome coronavirus type-2 ("COVID-19") reached the United States and infections began popping up across the country. Although much remains uncertain about this novel coronavirus, "there is consensus among epidemiologists that the most common mode of transmission of [COVID-19] is from person to person, through respiratory particles such as those that are produced when an infected person coughs or sneezes or projects his or her voice through speaking, singing, and other vocalization." The scientific community also largely agrees that the virus can be "spread by individuals who are pre-symptomatic or asymptomatic," i.e., difficult to identify, making it particularly "difficult to control." But not all exposures to COVID-19 will cause an infection; an infection will occur only when there is a sufficient dose of the virus, known as a "viral load," to overcome the body's defenses.

California, in consultation with public health experts, has enacted an evolving series of restrictions on various activities and sectors as its understanding of the virus has improved and as the virus has spread throughout the state. On March 4, in an early attempt to limit the virus's reach in California, Governor Gavin Newsom proclaimed a State of Emergency, thereby allowing him to exercise extraordinary executive powers. See Cal. Gov't Code §§ 8625 – 8627.5. Two weeks later, within this authority, the Governor issued Executive Order N-33-20—the first Stay at Home Order—which required "all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors."² California's Public Health Officer designated a list of "Essential Critical Infrastructure Workers," which included "[c]lergy for essential support and faith-based services that are provided through streaming or other technologies that support physical distancing and state public health guidelines." Accordingly, although the Stay at Home Order prohibited in-person worship services, the inclusion of

clergy on the list of critical infrastructure workers allowed places of worship to conduct services by streaming them online.

In late April, California released a four-stage "Resilience Roadmap" for reopening various sectors of the economy based on the risk that any given "workplace" posed in transmitting the virus. Stage 2 included "lower-risk workplaces," such as curbside retail, manufacturing, and dine-in restaurants. In Stage 3, "higher-risk workplaces" were permitted to reopen, which included religious services and movie theaters. The Roadmap also imposed guidelines that applied to all sectors (e.g., disinfecting protocols and physical distancing), as well as mandatory industry-specific guidance. On May 25, California issued industry-specific guidance for places of worship and providers of religious services. This initial guidance explained that "[e]ven with adherence to physical distancing, convening in a congregational setting of multiple different households to practice a personal faith carries a relatively higher risk for widespread transmission of the COVID-19 virus." Accordingly, in-person indoor worship services were limited to the lesser of 100 attendees or 25% of building capacity. On June 12, as scientific understanding of the virus revealed that transmission risk dropped significantly outdoors, California removed capacity restrictions on outdoor and drive-in religious services.³

In mid-June, California issued a state-wide mandate requiring face masks be worn in most public spaces, settings, and workplaces to reduce transmission risk. The scientific community largely agrees that wearing a face covering reduces—but does not eliminate—the risk that a person infected with COVID-19 will infect others, and likely reduces the risk that the wearer will become infected by someone else.

But the mask mandate and industry-specific guidance proved incapable of preventing a summer spike in cases, and California once again began to tighten restrictions. In July, California prohibited singing and chanting at all indoor gatherings—including places of worship, protests, schools, and restaurants—because when a person sings or otherwise loudly vocalizes, droplets are expelled with greater force, travel farther, and thus present a greater danger of transmitting the virus. But despite these additional restrictions, cases continued to rise. On July 13, in light of the "significant increase in the spread of COVID-19," California issued an order reimposing many previously relaxed restrictions on indoor activities. In addition, counties that demonstrated "concerning levels of disease transmission, hospitalizations, insufficient testing, or other critical epidemiological markers" were placed on a "County Monitoring List." Counties on this list were required to close certain indoor activities, including worship services, protests, gyms, and personal care services. Throughout the state, however, outdoor worship services continued without any restrictions on attendance or singing regardless of the individual county's case level.

California's Current Restrictions: The Blueprint & Regional Stay at Home Order

On August 28, 2020, California enacted the Blueprint for a Safer Economy (the "Blueprint"), which serves as the current framework underlying California's COVID-19 restrictions and which South Bay challenges in this case. The Blueprint provides "revised criteria for loosening and tightening restrictions on activities" based on (1) the prevalence of COVID-19 in the relevant county, and (2) an activity's calculated risk level.

The Blueprint assigns each county to one of four tiers, ranging from Tier 1 ("Widespread") to Tier 4 ("Minimal"), which reflect COVID-19's transmission risk in each...