How The Briefing Schedule Stole Christmas!

It takes weeks, not days, and certainly not hours, to review California's complete prohibition on indoor worship.

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. With three weeks to go till Christmas, certainly the District Courts and Ninth Circuit could promptly and expeditiously decide these cases before December 25--especially after another Ninth Circuit panel held that Diocese effected a "seismic shift in Free Exercise law." But 'tis the season for leisurely briefing schedules.

Let's start with the never-ending Harvest Rock litigation. The District Court took more than two weeks to deny a Temporary Restraining Order. The same day that the TRO was denied, the Church sought an injunction pending appeal. Now, the Ninth Circuit has issued a briefing schedule:

The court has received appellants' emergency motion for injunction pending appeal. The response to the motion is due at 9:00 a.m. Pacific Time on December 28, 2020. The optional reply in support of the motion is due at 9:00 a.m. Pacific Time on December 29, 2020.

Maybe we'll get a ruling by New Year. Judge O'Scannlain dissented, in part, from the order:

Although I have no objection to the briefing schedule set forth in the court's order, I strongly object to our failure to accommodate, even in a temporary fashion, Harvest Rock Church's request for relief from California's severe restrictions on indoor worship services by December 24.

The requested deadline is hardly arbitrary: The church seeks immediate action from our court so that its members can worship on Christmas Day, one of the most sacred holy days in the Christian calendar. And it is not the church's fault that it finds itself in this predicament. The church moved for a temporary restraining order against California's worship-related restrictions as soon as this case was remanded following a decision by the Supreme Court—yet it had to wait more than two weeks before the district court ruled on that motion. When the district court finally denied its motion two days ago, Harvest Rock Church filed a notice of appeal the same day. The next day, yesterday, the church moved for an emergency injunction from our court.

Judge O'Scannlain would have granted temporary relief, at least for Christmas:

Even if we need more time to consider the pending motion in full, we should have granted the church at least the temporary relief it needs to ensure that its members can exercise freely the fundamental right to practice their Christian religion on one of the most sacred Christian days of the year. U.S. Const. amend. I.

Alas, people on faith in Bay Area are in a tough spot. The weather outside is frightful: 80% chance of rain, wind gusts up to 25 miles per hour, and the temperature will dip below 50. I hope members of the church can bundle up and bring umbrellas. They can pray through the silent night on the serene streets of San Francisco.

 

Another Ninth Circuit panel issued a far-better briefing schedule in the never-ending South Bay litigation:

Appellees are directed to file an opposition to Appellants' Emergency Motion for an Injunction Pending Appeal on Thursday, December 24, 2020, by 9:00 A.M. Appellants' optional reply brief is due on Thursday, December 24, 2020, by 12:00 P.M.

In theory, at least, this panel can decide the case before Christmas. And the full appeal will be expedited, with oral argument set for January 15:

The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due on or before December 31, 2020; the answering brief is due on or before January 7, 2021; and the optional reply brief is due on or before January 11, 2021.

This appeal is set for virtual oral argument at the Richard H. Chambers U.S. Court of Appeals Building, Pasadena, California, on January 15, 2021, at 1:00 P.M.

Justice Breyer was simply wrong that these sorts of disputes can be resolved in "hours." Litigation takes time. Let's take Harvest Rock as an example. Judge Bernal likely knew from the outset that the TRO would be denied. But he felt the need to write a fourteen page decision. An opinion that, frankly, no one will ever care about after next week. It was an exercise in self-reflection, at the expense of litigants who wanted a timely resolution. My tentative inclination is that judges who plan to deny the TRO should simply issue the order, so that a proper appeal can be taken. An opinion can be issued in due course, even while the appeal is pending. Here, prompt review is far more important that thorough consideration. At a minimum, judges owe litigants a prompt ruling in urgent litigation touching on enumerated constitutional rights.

I'm willing to wager anyone a piece of stale fruitcake that Governor Newsom will relax the requirements as soon as Circuit Justice Kagan calls for a response.

Comments

[Hey Skipper]

Sounds like time for congregants to take matters into their own hands and worship as they choose; it's time for Newsom to stop playing God.

[BadLib]

I'm not sure Newsom is playing God - I suspect it's more likely he thinks he is God.

[Dr. Ed 2]

And sooner or later, some unbalanced individual will conclude he is the Biblical-predicted Anti-Christ and take him out. That is where this is all going...

[Dilan Esper]

The fundamental problem here is pretending that attending a Christmas service is more important than saving people's lives. It's just not.

There are other ways to celebrate Christmas. If the Christian God actually existed, She wouldn't be sending these people to Hell because they held a Zoom Christmas service.

I am all in favor of these people eventually getting their claims litigated. Just like everyone else who has to wait as the court systems have been slowed up due to the pandemic. And maybe the courts will eventually rule in their favor.

But missing an in-person Christmas party isn't an irreparable injury. And that's all this is. No grounds to expedite.

[Hey Skipper]

If it isn't more important to you, then don't go.

It sure as heck isn't up to you to decide how important it is to them.

[Dilan Esper]

It is when they come to court.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

They only have to go to court because busybodies like you and Newsom stick your noses where they don't belong.

Stop minding other people's business, and stop using the excuse that it's for their own good. You aren't smarter than them.

[Dilan Esper]

Protecting public health is a pretty core function of a governor.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

None of them are doing that.

[Rev. Arthur L. Kirkland]

Where will dumbasses like Hey Skipper be when infected clingers start showing up at intensive care units, expecting people who relied on reason and science -- rather than superstition and silly dogma -- to acquire medical training provide care -- sustaining substantial risk -- to these belligerently ignorant, lethally reckless losers?

[kkoshkin]

"The fundamental problem here is pretending that attending a Christmas service is more important than saving people’s lives. It’s just not."

That's a matter for the faithful to decide for themselves. See the First Amendment. They should at least have the same choice as someone who decides to run into the pharmacy next door to the church to fill a prescription.

[Dilan Esper]

Not when they ask for relief from the courts.

[kkoshkin]

So they have a right but shouldn't be able to enforce it in a court?

Then do they really have a right?

[Dilan Esper]

Let's put it this way. Let's say they get into an auto accident on the way to the church and miss the Christmas Eve service. Do they get extra damages for that? Probably not, and if they do, it won't be very much money. In other words, we don't actually act as though missing a religious service is some huge injury to people in the rest of the legal system.

They are asking for a court injunction, and on an emergency basis. That requires a showing of irreparable harm, justifying them jumping the line of all the important court cases that got in before them. The irreparable harm they are alleging is that they miss their Christmas party and have to do something on Zoom instead. That's not irreparable harm.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

They didn't abridge Newsom's rights, or yours. Newsom started this, with your blessing. Why don't you just fuck off, slaver?

[kkoshkin]

An auto accident is not a government decree. There's no First Amendment right not to be in an auto accident.

That you're having to draw on plainly irrelevant hypotheticals reveals the weakness of your position.

[Rossami]

Bullshit. Apply that logic to the right to free speech. You can say anything you want until some government bureaucrat says that it might cost a human life (something regularly said by politicians in wartime, for example). Are you really trying to say that a plaintiff wouldn't be able to assert their free speech rights in court for that case?

[Dilan Esper]

Where there is a DIRECT connection between speech and loss of life, you bet the government can restrict your speech. See, e.g., Brandenburg v. Ohio or the "crime facilitating" speech cases EV blogs about

[Hank Ferrous]

When you can prove that attending religious services places people at severe risk, in reality, not rhetorically, or because you dislike religion, then your argument may have some teeth. Until then, you continue to be a bigot with an inflated sense of your opinion's importance on the matter. Not attending a service is not 'saving lives.' This kind of pathetic and cowardly language may play well with people who aren't very bright and tend to emote rather than think, or have an agenda. It does not however reflect reality. Risk can be mitigated, or are you saying that masks and social distancing do not work? If masks and social distancing do work, then people who attend services can use both before, during, and after, yes? Or, is your argument simply due to your bias?

[Dilan Esper]

We have extensive evidence that gatherings kill people. That's not bigotry. And masks and social distancing may work as mitigation, but indoor gatherings are still dangerous.

None of that is bigotry or an agenda. It is reality. The fact of the matter is that what certain religious people want is a judicial declaration that their desire hold their gatherings is so important that not only does it outweigh people's right to life, but that it also must be adjudicated on an expedited basis so that they don't suffer the "irreparable" harm of not being able to attend their party. That's what this case is about, fairly stated.

Finally, criticizing religious people who want to kill me is not bigotry. There are millions of religious people in this country who are NOT going to gatherings. There are thousands of churches, synagogues, temples, and mosques which are closed right now, and which are conducting safe online services. I obviously bear no animus to any of those people, because they don't want to kill me. Your accusation of bigotry is disgusting.

[branford]

"We have extensive evidence that gatherings kill people. That’s not bigotry. "

It is bigotry if religious gatherings are treated more harshly than comparable secular gatherings.

For instance, as long as there's a "Hollywood exception" in California for matters like indoor dining and movie and television production (which often cannot be accomplished with social distancing safeguards like masks), the ban on indoor worship should be struck down.

[Toranth]

No, we do not have "extensive evidence that gatherings kill people". That isn't even close to a rational statement.
At the worse, gatherings might spread a disease that might kill people. And this statement is not the same thing as your absurd claim at all.

Incidentally, we also know that internet postings might enrage people, who then might go kill people. Are you fine with your your First Amendment rights being removed, then?

Your post is pure panic porn. There is no rational way you can draw a connection between people worshiping peacefully in their own church and you dying of a disease - unless you are trying to claim that those specific worshipers have already told you they plan to get the disease then come cough on or in some way force the disease onto you?
You could never get anything but laughed out of a courtroom if you tried to sue them over such ephemeral 'harm' - and for good reason.

Instead, you are so fearful you resort to the shallowest and, yes, most bigoted declarations. Your fear is not more important than their faith, and your bizarre insistence that it is demonstrates exactly how bigoted you are.

[Rev. Arthur L. Kirkland]

Superstitious, belligerently ignorant, lethally reckless right-wingers are perhaps my favorite culture war casualties.

Open wider, losers.

[fishbeardtv]

Thanks for your coverage of these cases (and for replying to my email about them)! This really is a huge deal for a lot of people.

[Kazinski]

The problem with this series of posts about punting briefing schedules, shadow docket manipulation is that the supreme court has never been, and never designed judicial first responders to instantly triage and respond to constitutional injuries.

[Pacific]

Very good point.

[BadLib]

The one upside of having insufficient quantities of SARS-CoV-2 vaccines to vaccinate most people until, at best, Summer 2021 is that the Supreme Court will have time to resolve more of these issues so precedents are in place for the next virus that crosses our borders.

(And the Ninth won't feel a need to editorialize using terms like "seismic shifts" next time around).

[Pacific]

We don’t joke about seismic shifts out here in CA. That sounds like a bad Judge Ho joke.

[Longtobefree]

Follow the scriptures.
Have the church service.
Worship as your God directs, not some petty tyrant.
Take the communion wafer from the masked, hand-sanitized pastor. Say the prayers.
Rejoice.
If the unlikely event occurs that you are arrested, go to court and proclaim the Gospel.

[Rev. Arthur L. Kirkland]

Choose reason. Every time. Be an adult.

Or, at least, try.

[Dr. Ed 2]

Kirkland, you don't understand what you're playing with.

[Brett Bellmore]

"The weather outside is frightful: 80% chance of rain, wind gusts up to 25 miles per hour, and the temperature will dip below 50. "

So, a pleasant spring day in any of the Northern tier of states.

All joking aside, this is how courts behave when forced to take cases concerning rights they see no actual value to. We are a nation laboring under the rule of an elite who despise us, and do NOT share our values.

[Dr. Ed 2]

Exactly....

[Sarcastr0]

Christmas is not sacrosanct; plenty of people have to work on Christmas, quit complaining.

[Hank Ferrous]

Quit complaining? This from you? Are you also going to suggest not lying, waffling, and shifting standards within an argument? For the people who are religious, religious holidays are a pretty big deal, the fact that only Christmas is mentioned is a pity.

[Sarcastr0]

Plenty who are religious and don't wish to have to work on Christmas. This has been true for every Christmas ever.

Neither Blackman, nor those involved in California litigation, are not special.

And thanks for the insults, They are never appreciated. If you have an issue with a particular argument of mine, make it. Otherwise, you're just blowing smoke.

[Toranth]

Who said anything about working?

It's almost as if this is a complete strawman, like most of your 'arguments'.

[Pacific]

Since I am the only person here who attended and did legal work for Harvest Rock back in the ‘90’s, these debates have a certain interest. As it happens the church now owns and meets at the Ambassador Auditorium, which has fixed concert seating so there is no way to have safe and comfortable social distancing. On the other hand, the pastor was on the Today Show earlier in the week, so there’s something.