The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The past 96 hours have been very busy for COVID-19 Free Exercise Clause litigation.
On Friday, January 22, a Ninth Circuit panel upheld California's "Regional Stay at Home Order and Tier 1 of the Blueprint." This measure prohibited all indoor worship, but permitted outdoor worship. (I wrote about those directives here, here, here, here, and here). The South Bay United Pentecostal Church no doubt began to prepare another emergency application to the Supreme Court.
At 9:30 a.m. on Monday, January 25, the Supreme Court denied Calvary Chapel's petition for certiorari before judgment. The Court did not see fit to review this case from Nevada a second time. I think the majority said what they wanted to say in Diocese of Brooklyn.
Shortly thereafter, another Ninth Circuit panel denied Harvest Rock's application for an injunction pending appeal. This panel found itself bound by the three-day old South Bay circuit precedent. Judge O'Scannlain dissented, contending that South Bay was "woefully out of step with" Roman Catholic Diocese of Brooklyn. He wrote:
A simple, straightforward application of these controlling cases compels what should be the obvious result here: California's uniquely severe restrictions against religious worship services—including its total ban against indoor worship in nearly the entire state—are patently unconstitutional and should be enjoined. The court's refusal to do so in South Bay cries out for correction.
And shortly thereafter, California lifted the regional stay at home order. Now, local authorities can impose their own measures. Was this change made based on #science? I would not be surprised if this timing was occasioned by the Ninth Circuit's double-rulings, and the Supreme Court's cert denial. Now California can argue, for the umpteenth time, that an emergency application to the Court is moot. Sense a pattern? The game of whack-a-mole continues.
At this juncture, I think the Supreme Court is finished with emergency COVID-19 Free Exercise Clause litigation. The Court may still consider some cases that arise in the normal course–for example, a dispute that seeks damages, rather than an injunction. But the shadow docket will likely cool off in a shady penumbra for some time.
Update: I wrote "California lifted the regional stay at home order." A California attorney, who also serves in the ministry, writes with a clarification or correction.
The Regional Orders are gone, but the state-imposed restrictions barring indoor worship continue. Under the state's color-code scheme, 54/58 counties are in Purple, meaning that indoor worship is prohibited by state mandate. The local health officers have authority to be more restrictive of course, but not less. In fact, the Regional Stay at Home orders had no effect on religious services or schools in purple counties. We just kept operating the same as before (outdoors and online).
The state confuses the matter by styling the various industry restrictions as "guidance," but has been very clear that these are mandatory. The Governor's original public health emergency directs all Californians to "heed" state guidance. https://www.gov.ca.gov/wp-content/uploads/2020/05/5.4.20-EO-N-60-20.pdf.
Violating this directive is supposedly a misdemeanor. See Cal Gov Code 8567 & 8665. I doubt they will prosecute anyone but there have been administrative penalties and civil fines.
The local health officers also understand this and often apologetically explain that they are powerless to adjust or ignore state mandates, which are not just "guidance." Sometimes this sounds sincere, sometimes it sounds like they're hiding behind the state.
Bottom line: Nothing changes in purple counties (all but 4 tiny counties). The state still bans indoor worship. Our Church near Sacramento is meeting outside and has been since May 31, but we are fortunate to own 20 acres on the edge of town. Everything works OK except rain and bad wind, which have been mercifully rare this year. The smaller churches or those without their own buildings have no place to meet, and seem to be dying out. It is a sad state.
I frankly am confused about the complicated web of state and local regulations in California. This labyrinth, alas, will allow the government to frustrate appellate review.