The Volokh Conspiracy
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On December 3 the Court punted away Harvest Rock v. Newsom. A few hours later, Governor Newsom announced a new "stay at home" order that would shut down all indoor worship services. At the time, I urged Harvest Rock to file a motion for reconsideration so the Supreme Court could consider these new onerous restrictions.
Over the past week, there have been several developments. On December 3, the Ninth Circuit remanded the case to the District Court. (Recall that SCOTUS curiously remanded the case to the Circuit Court, rather than to the District Court). The next day, Harvest Rock sought a TRO in the District Court. The District Court refused to rule on that motion, and instead scheduled a hearing next week after another round of briefing. Harvest Rock asked the District Court to deny the TRO so it could appeal. The court would not issue a written order.
Now, Harvest Rock is back before the Supreme Court with a Renewed Emergency Application for Writ of Injunction. And the church seeks relief by December 12, 2020. Here is an excerpt:
Despite this Court's GVR Order, the district court has yet again refused to issue the constitutionally mandated injunctive relief Applicants' renewed motion for temporary restraining order and preliminary injunction requested. Despite this Court's unequivocal holding in Catholic Diocese that "the Governor's severe restrictions on applicants' religious services must be enjoined," 2020 WL 694835, *4, and the fact that the restrictions at issue here—which completely prohibit religious worship services for 99.9% of all Californians and the vast majority of Applicants' Churches—the district court refused to issue Applicants' requested TRO and preliminary injunction. In fact, the district court refused to even hear argument regarding the irreparable harm and the merits of this Court's decision in Catholic Diocese. Instead, the district court has acceded to the Governor's request to further brief issues already settled by this Court in Catholic Diocese, delayed decision on Applicants' request for a TRO and preliminary injunction until, at the earliest, the December 18th hearing (and probably much later while the court takes it under advisement), and placed its Article III imprimatur on the precise irreparable harm from which Applicants have desperately sought relief since July.
As discussed more fully infra, the district court's previous delays required Applicants to wait 59 days before any written order was issued on their requested emergency relief. Forcing Applicants to endure that same delay yet again only imposes the precise harm from which they are begging for relief.
For nearly ten months, the Governor has continued to discriminate against Applicants' religious worship services while permitting myriad nonreligious entities to continue to gather without numerical restrictions inside the same house of worship and in other external comparable congregate assemblies; publicly encouraging and supporting mass protestors, rioters, and looters to gather without numerical restriction in blatant disregard for his own Orders; and has purported to prohibit religious worship services—even in the private homes of Californians—despite the fundamental protections enshrined in the First Amendment.
This chronology illustrates how wrong Chief Justice Roberts and Justice Breyer were. Lower courts are content to drag their feet as the government modifies their policies to make review impossible. People of faith cannot seek Supreme Court review in the span of a few "hours," as Justice Breyer suggested.
The Court should stop this interminable game of whac-a-mole and issue an injunction for California. Enough.