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Federal Judge in California Flouts Catholic Diocese, Dares SCOTUS to Reverse Him

District Court: California's complete prohibition on all indoor worship is permissible because the state permits worship outdoors.


On December 3, hours after the Court GVR'd Harvest Rock, the Governor of California implemented a new framework that would permit the complete prohibition on indoor worship. Harvest Rock moved for emergency relief in the District Court. The Court declined to rule right away. In the interim, Harvest Rock Church asked the Supreme Court to intervene, but that relief was not granted. I've been told that there is apparently an unwritten rule: following a GVR, the Court will not rule on a motion till the lower court had a chance to decide.

On December 21, the District Court upheld the Governor's order. Judge Bernal's opinion offers a very, very strained reading of Diocese, and still follows Chief Justice Roberts's comparator approach from South Bay.

First, the Court finds a way to distinguish California's order from those set aside in New York and Nevada:

The Blueprint offers something the New York and Nevada Orders did not: the ability to legally congregate in unlimited numbers for worship—so long as that worship occurs outside.

I don't find Judge Bernal's distinction persuasive because of one important factor: the elements. What happens if it is cold outside? Or raining? Or snowing? Are people really expected to huddle in the elements so they can worship in large numbers? What about the need to use various religious texts that would get wet outside? Or the use of instruments? Or anything else that would be impossible in the elements? When the weather outside is frightful, California's policy amounts to a complete prohibition on worship–indoors or outdoors. And what about noise? Can people worship in peace and contemplation with cars driving down the street? Or people walking through their procession? What if a church does not even have a place to worship outside? Can a person offer a private confession in a park? With people walking their dog nearby? This fine distinction is very disappointing, and it will not stand up on appeal.

Judge Bernal's second error is legal: he misread Diocese.

In so doing, the Blueprint treats religious activity better than comparable secular activity and even better than essential services.

Chief Justice Roberts's South Bay concurrence looked at "comparable secular activity." Diocese eliminated that requirement. Now, the religious activity must be compared to any secular activity, whether comparable or not. I explained this important shift last month:

In South Bay, Roberts compared the house of worship to "comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." They key word is "comparable." The per curiam opinion does not require that the house of worship be "comparable" to other secular businesses. Are houses of worship comparable to "factories and schools"? Not really. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.

Third, Judge Bernal found that "challengers in Catholic Diocese were also entitled to strict scrutiny because of the strong showing that New York's restrictions impermissibly discriminated against religious communities." I wish this statement were true, but it is not. As a threshold matter, Governor Cuomo's statements were not directed "against religious communities." The statements were directed at Jewish people. Judge Bernal's generic reference to "challengers" obscures this distinction. Next, the Court did not rely on those statements. Strict scrutiny was warranted because of the policy's non-neutrality. Again, Judge Bernal strained mightily to distinguish a Supreme Court precedent. He failed.

Fourth, the court found that the complete prohibition on indoor worship survives strict scrutiny. Why? The last, best hope of all constitutional arguments: the Constitution is not a suicide pact.

The First Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms. They just may not do so in ways that significantly increase the likelihood of transmission of a virus which has claimed more than three hundred thousand American lives in less than one year. The Constitution is not a suicide pact. The First Amendment may not be used to make it one.

Come on. Dozens of states permit indoor worship. And houses of worship follow rigorous protocols. They prohibit singing and chanting. They time their exit and entry to prohibit crowding. Judges are wedded to this March 2020 stereotype where people chant and scream at the top of their lungs for hours on end. This narrative is simply false. Please, get on with the times.

Judge Bernal flouted Diocese, as well as the Ninth Circuit's Calvary Chapel decision and is daring the Supreme Court to overrule him. The Court should use this case to clarify a somewhat unclear issue from Diocese: why exactly was New York's policy not neutral?

Update: Calvary Chapel has already filed a motion for an injunction pending appeal with the Ninth Circuit.

In other news, another District Court upheld California's order in South Bay. The church has filed a motion for an injunction pending appeal with the Ninth Circuit. I will try to write about that case later.

NEXT: Will Academic Travel Ever Go Back To "Normal"?

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54 responses to “Federal Judge in California Flouts Catholic Diocese, Dares SCOTUS to Reverse Him

  1. When liberal judges do this it is viewed as “acceptable” by the media. I remember when a few conservative judges ruled against lockdown orders. The Left went crazy calling them extreme, ignoring precedent, etc. I suspect we will get nothing here except for the snippet about how “brave” this judge is to stand against blah blah blah.

    The double standard is becoming more blatant day by day. So much so that I doubt it will be tolerated even among the establishment right any longer.

    1. Jimmy, I don’t make a distinction between the establishment right and the left anymore — they are one and the same.

      Here in Maskachusets, our purported Republican Governor is now openly admitting that he is imposing more draconian fiats for the purpose of “sending a message.”

      I am really starting to worry about the future of a free society.

      1. “Free Society” died at least 20 years ago.

        1. The virus has really shown how eager many Americans are for regimentation by government order.

        2. It might seem that way to disaffected, obsolete misfits . . .

  2. “Federal Judge in California Flaunts Catholic Diocese”

    That headline needs to live forever.

    1. I’d focus less on Prof. Blackman’s poor proofreading and more on his poor legal analysis. Catholic Diocese isn’t even a final decision — just an order on a preliminary injunction — and (more importantly) doesn’t say what he claims it says.

      Like the Kraken litigators who keep citing Rehnquist’s concurrence in Bush v. Gore as if it were the holding of the court, Prof. Blackman keeps citing Kavanaugh’s concurring opinion rather than the Court’s per curium opinion.

      1. Mr. Picky needs to point out that it is per curiam, not curium. First declension accusative singular. 😉

      2. Poor legal analysis? Nah he’s got it right.

        You want poor legal analysis? Read the decision. For example: The “Constitution is not a suicide pact” is a weasel way to rule. It’s like asking “When did you stop beating your wife?”. It could easily be used to violate any of the Bill of Rights. “Sorry, but random road side cavity search’s are allowed because drugs are so bad and the Constitution is not a suicide pact.”

        1. The constitution is not a suicide pact is indeed a poor argument; it was a poor argument when Jackson said it as an anti-free speech argument in Terminiello. But since that’s not the ruling of Catholic Diocese, I’m not sure why you’re bringing it up.

          And, no, Prof. Blackman doesn’t have it right. He claims that Catholic Diocese rejected the “comparable secular business” standard, but it did not. Only Kavanaugh’s concurrence arguably did so.

  3. One cannot “flaunt” a Diocese, Catholic or not. More importantly, one cannot “flaunt” a court decision, except maybe as part of some expressive dance.

    One can, on the other hand, “flout” a court decision, but it is important to use the actual word “flout” if you intend this meaning.

    1. Shhhhhh. It’s more fun if you let it ride for a while. 🙂

    2. Flaunt: Intransitive verb:
      To ignore or disregard (a rule, for example) openly or scornfully.

      That’s cut & paste — there are other definitions of the word, but that is a recognized one. And while it should have been in Italics, “Catholic Diocese” is the name of a court decision, much like Miranda or Dred Scott — although the latter two are also the name of a man involved.

      1. A C&P from a dictionary that also does not know what “intransitive” means?

        Look, Prof B is hardly the first person to misuse “flaunt” in this way, but I have slightly higher expectations from law professors. I see that he has stealth corrected it as well.

        1. (1) Merriam Webster online dictionary
          to treat contemptuously
          “flaunted the rules” — Louis Untermeyer

        2. (3) to ignore or treat with disdain
          “He was expelled for flaunting military regulations”

          Better do your homework before you look down your nose at someone. You might miss a bird relieving itself on your forehead.

          (I had posted this in one comment, forgetting the silly rule about more than one link goes into moderation.)

          1. We can have a discussion about descriptivism vs prescriptivism, but it chaps my ass that when a lot of people do something wrong, it suddenly becomes right.

            See also: comprised of, liberry, foilage, au jus sauce/au jus on the side, and my personal favorite, the chase lounge.

            1. Language changes. Get over it. Or start writing comments in Chaucerian English.

              1. Whan that Aprille with his shoures shoote….

                1. I’ll perce you to the roote!

                    1. Not sure what you mean with that one. I went to Catholic HS in NY, but I am pretty sure I didn’t read the Canterbury Tales til college. But I do have a copy of the Norton Anthology of Poetry, so I have read the first page or so of the GP a bunch of times.

            2. Think of language like an easement. One person walking on someone’s property is a trespass. But tens of thousands doing it over a long period of time can become an easement. When a lot of people do something wrong, it becomes right.

              Because language is a social convention. There really isn’t any notion of “right” other than words and usages that other people understand. So when something is used enough that other people understand it, it becomes a correct use.

              1. “When a lot of people do something wrong, it becomes right.”

                A paradox of the law.

                1. Next you will try to tell me that “de minimus” is acceptable. De takes the ablative, which in this context, is “minimis.”

                  1. I have always spelled it the way you suggest. But if you think that is a great scandal, then one wonders where you have been living.

                    Reminds me of a movie my daughter was once watching. It was about some girl that was visiting an older lady that grew up in Victorian times. She set the table wrong. Apparently, clear soups require an oval soup spoon, while creamy soups require a round one. The girl got that wrong, and the matron was duly horrified.

                    Sorry, after 9/11, wrong-shaped soup spoons, or misspelling old Latin legal phrases, don’t move me as scandalous. Or even noteworthy.

    3. This is another great example of “people who had overly strict English teachers are actually the dumb ones”.

      Check any dictionary. “Flaunt” and “flout” are synonymous. I don’t like it, personally. But they are. Usage has confirmed it.

      People need to learn what words actually mean before they go around correcting others. The less people who are engaged in this sort of thing, the better.

      1. Any dictionary? No. Some bad dictionaries, yes. (I would point you to all the dictionaries that do not treat them as synonymous, but Reason doesn’t allow multiple links in a comment.)

        1. Good dictionaries. Serious reference works.

          Dictionaries’ job is to tell us what words mean, not what clueless prescriptivists would like to force them to mean.

          1. Find a serious reference work, and look up “begging the question.”

            (Though if it’s one of those things you think of as “good dictionaries,” you’ll have to skip past the part where they tell you that it means “raises the question” to find out what it really means.)

        2. Merriam Webster is a bad dictionary? Who knew? See my above comments for other links.

          (As you can see, I too got caught in the silly multiple-link rule. You need to post them one at a time.)

  4. Somebody arrest this judge, and throw him in jail, for gross abuse of power.

    1. One of the many things that scares me is that I honestly don’t know how far we are from “Lynch’s Law” and mob arrests of such persons. In fact, wasn’t there already an attempt along such lines in Michigan?

      Yeats put it best: The middle shall cease to hold.

      1. You sure that’s a quote? From Yeats? Did he maybe write something similar? Is that what you mean, and you are making some obscure point?

        1. The real quote is “Things fall apart; the centre cannot hold”

          But I understood his reference.

          You should read the whole thing – it is famous for a reason.

      2. Delusional, all-talk, blustering clingers are among my favorite culture war casualties.

        And the core of the Volokh Conspiracy’s following.

        You know the bigots recognize their cause is lost when most of their arguments consist of . . . ‘One of these days, if you keep pushing us, we’re gonna . . . Well, we’re gonna . . . We’re gonna , , , well, something or other.’

        1. It should be The Rev Mr Arthur L Kirkland, unless you sub in “Dr” for “Mr. That would be if I believed you were actually ordained, and not using a nym based on an Al Pacino character or an anime character.

  5. What puzzles me is why a judge is so hell-bent on fighting the governor’s battle. Either he personally hates religion with a passion, or he’s trying to get appointed by Biden to some higher court.

    I know people this rabid, but it is almost always about something they have no control over. I’d think someone’s who been a judge long enough would have more self-control.

    Says he was born in Mexico City in 1963; 57 years old. From Yale. Judge since 2012, public defender before that.

    Ought to have more self-control by now. Wonder what virtue he’s trying to signal, and to whom.

    1. You might ask why religious leaders are so hell bent on conducting services. They can easily conduct services remotely. It has been done by some of the largest churches and congregations in the country. I can not think of a reason other than they want to keep congregations together. If people learn they can do without organized religion they might give it up. Unfortunately I see too many priests, ministers, etc. pushing to keep people in church so the money keeps flowing in.

      This is not a question of right or wrong but a power struggle between powerful people (judges and religious leaders). No matter who wins the average person loses.

      1. Calling religious leaders “hell bent” on conducting services is a delightful piece of phrasing.

      2. Religious leaders are becoming ever less powerful in America as our nation progresses and improves. As young people — especially educated, influential, modern young people — come to see organized religion mostly as a cover for bigotry and an indicator of disdain for science, the role of religion in our society seems destined to continue to diminish.

        1. Yes, we know you want to stomp your jackboots all over the First Amendment. Get a room.

      3. “You might ask why religious leaders are so hell bent on conducting services.”

        Why do those damn civil rights advocates keep trying to get black people to vote?. Can’t they just accept having others vote for them?

        I know…it’s absolutely crazy having people have firm, heartfelt beliefs that they are willing to fight for.

        1. Why, it’s just not enough to have a right to freedom of religion, those people actually insist on exercising it!

          They seem shocked that the kind of people that regularly read about Shadrach, Meshach, and Abednego being thrown in the fiery furnace rather than denounce their faith, where the expected death rate is 3 in 3, aren’t concerned about contracting a disease where the death rate is for the vast majority of them 3 in 10,000 or more.

  6. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.

    Keep that up and it will become a justification for enlarging the court which history will approve. History is a harsh judge of carefully pre-considered stupidity.

  7. One thing to remember is that Diocese is a shadow docket case, which means its not really binding authority.

    Not saying if I were a District Judge I wouldn’t treat it as such, but technically, the Court has to take a case, hold oral argument (even on an expedited basis) and issue a merits ruling before we get a binding precedent.

  8. The elements? Isn’t God in charge of that?

    The religious should accept His judgement on how essential their gatherings are. Or they should view it as a test of their devotion. If they aren’t willing to worship through a storm how devout are they really?

    Or maybe God loves Zoom and this is all part of his plan. Who are we to flaunt (and yes, God says that’s totally a correct usage of the word) God’s will by continuing to pray in person?

    1. But if the lawsuits win, then that is obviously God’s will.
      How are you going to show you are really devout if you aren’t willing to go to court against the government for your faith?


  9. Choose reason. Every time.

    Choose reason. Especially over sacred ignorance, dogmatic intolerance, and superstition.

    Choose reason. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, ignorance, bigotry, and backwardness. By adulthood — this includes ostensible adulthood — it is no excuse.

    Choose reason. And education, inclusiveness, science, progress, tolerance, and modernity. Avoid ignorance, bigotry, superstition, dogma, backwardness, insularity, and pining for ‘good old days’ that never existed — not 50 years ago, not 2,000 years ago, not ever.

    Choose reason. Be an adult. Or, at least, try.

    Otherwise, you could wind up a lethally reckless, belligerently ignorant, selfish clinger, spreading a virus to flatter superstition and fairy tales.

    1. Or you could be a sad, pathetic troll that calls itself a Reverend.

  10. FTR, it does really need to be pointed out that in much of the state the weather is not, in fact, ever “frightful”.

    In San Diego we complain heavily if it gets below 60, and the majority of the county never ever sees snow or drops below 40 at worst in a year.

    This is one area where I’m fine with different districts in different areas coming to different conclusions on reasonableness.

  11. Josh Blackman said ” The statements were directed at Jewish people.” What? “Diocese” is Jewish People?

    1. The challengers in Catholic Diocese included Agudath Israel.