Is SCOTUS Done with Emergency COVID-19 Free Exercise Litigation? (Updated)

The Ninth Circuit ruled against South Bay and Harvest Rock. SCOTUS denied cert in Calvary Chapel. And California lifted the regional moratorium on indoor worship.


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.

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.

NEXT: Press Coverage on the Emolument Clauses Litigation

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  1. I think we’ve seen a phase change on denial of cert. The majority on the Court have realized that controlling their own docket and lifetime job security means not having to take any hard cases AT ALL.

    1. So those Trump appointees are just going to give Biden a free pass?

      1. On most stuff, yes. Doing otherwise would require them to do work.

        1. We’ll see whether they take any 2nd Amendment cases that stem from what are obviously unconstitutional laws.

          1. My guess is the answer will be no. Even if there are now 5 votes Roberts is going to do his best to talk them out of granting cert. We have the specter of liberal appointments coming in the next 2 years and he will use that to scare the other members into doing nothing. Because, you know, doing nothing and pretending hard decisions should just get kicked down the road is how the right views good governance. Those tactics worked so well in the 90’s when we read about how all the cultural stuff was just a distraction from the economic agenda and we didn’t have to worry about things like “gay marriage”….How did that work out for you Republicans?

            1. Ultimately, all of our problems stem from Republicans’ refusing to realize the error of mass immigration from the third world and halting it. It was obvious to me by the late 90s that Republicans were going to mathematically lose state after state until America became a one-party country.

              In any case, there are a few obvious ones. May issue, >10 magazine bans, and bans on rifles based on cosmetic features are so obviously unconstitutional that if the court doesn’t take some cases now, it’ll lose whatever little credibility it had.

              1. Trump Day 1: Let’s talk about building a wall and maybe doing something about illegals.

                Biden Day 1: Wall done, enforcement of immigration laws effectively halted, and Keystone Pipeline cancelled.

                You can’t win the game if every time your team takes the field you move the football three yards only to have the other team move it twenty the very next turnover in the opposite direction.

                1. Yes, well a lot of that is the Republicans’ fault for a) not taking advantage when they had complete control many times and b) for not making sure that the judiciary didn’t go far left. Without Obama judges issuing nationwide injunctions, and without John “Obamacare is a tax” Roberts and Anthony “Gay buttsex is the height of human dignity” Kennedy, Trump would have been able to fix many of the problems.

                2. “You can’t win the game if […]”

                  Last time around, the problem was giving the ball to a back with a fumbling problem.
                  He promised that on Day One he’d be signing a “Better than Obamacare” health care bill. One minor problem, He hadn’t written one, had no ability to write one, and nobody on his team to write one either. So we lost ten yards and spiked the football, and started our touchdown celebrations.

              2. ” May issue, >10 magazine bans, and bans on rifles based on cosmetic features are so obviously unconstitutional”

                At least they would be, if the Constitution in your imagination were real. But courts and actual grown-ups have to work within the real one.

                1. You’re an idiot.

    2. I think Prof. Blackman’s right. They said what they wanted to say.

      The Supreme Court is NOT a national court of appeals. You are sarcastic about that, but that’s because you don’t understand what the Court’s role is. The Court can’t correct every error, or even every error in trendy cases. The Court receives thousands of cert petitions every year. It would quickly get overloaded. It has to control its jurisdiction and just take the big important cases where a legal clarification is needed (usually because of a conflict in the circuits).

      The Court has been way, way too aggressive with its shadow docket recently, mostly for ideological reasons, but I bet litigants have noticed and have started flooding the Court with petitions and motions that would have never been filed three years ago. So it needs to back off and get back to regular order.

    3. ” The majority on the Court have realized that controlling their own docket and lifetime job security means not having to take any hard cases AT ALL.”

      Gosh, if only someone had warned us that appointing underqualified judges might be a bad long-term plan!

      1. They did, but the “Wise Latina” was approved anyway.

  2. Emergency pandemic measures are far from done with. Even if Covid19 unaccountably disappears in the near future, the pandemic emergency problem remains.

    For clear thinking about public health emergencies, Covid19 was a bad test. It was so obvious, so soon, that it would not affect everyone alike. Folks who thought they were immune, and politicians catering to them, opportunistically sacrificed thousands of lives among at-risk populations, to curry favor among those who felt safe.

    Politicians are still doing that today. Some state governors take every sign of virus remission as political capital, enabling them to buy political favor by easing social distancing—a small political prize bought at the cost of offsetting the gains against the virus. Each such decision kills people needlessly.

    Much of that favor-currying involves lies or evasions about public health measures in general, about pandemic disease, and about the scope of institutional response the constitution authorizes. That is the wrong foundation on which to premise a systematic re-examination of public health law and policy.

    It would be best to put Covid19’s muddled reality in the rear-view mirror. Instead, either wait for the end of the present pandemic to revisit public health policy, or make the political effort required now to correct public thinking about the real scope of the threats—if that is even possible.

    Covid19 is not the big one. How much mask resistance would the nation have encountered during a novel pandemic as contagious as measles, and as deadly as ebola? Premise public health law explicitly on a threat like that—the worst-case scenario. Make it clear in advance that government authorization to respond with emergency powers must be federal, uniform, and mandatory.

    Even now, with the nation looking desperately toward a prompt vaccine deliverance, consequences of political failure to cope with Covid19 threaten to overturn that expectation. In the U.S., there is far more virus about than better policy would have allowed. Frequency of mutation tracks upward as virus quantity increases. Mutation results can go either way—toward more benign outcomes, or toward worse ones. Vaccine success may depend on suppressing the virus quickly enough that some happenstance malign mutation cannot defeat the vaccine before it works.

    Public health officials interviewed on this week’s news are beginning to show signs of stress—the stress of keeping such concerns limited to what they know is happening, without letting concern for what they know might happen get too much into the public discourse. For bungled public health policy on Covid19, the nation may yet pay a far worse price then we now expect.

    Hopefully that will not happen. Even after—or perhaps especially after—such a good-chance deliverance, political policy must nevertheless adjust public expectations to cope with the likelihood that a future event will prove far more dire. If or when that happens, sufficient government power must be already in place, and widely expected, to cope with what comes. Acting as quickly as circumstances permit to develop and maintain realistic public support for that capability is indispensable.

    Had Covid19 been a worst-case event, the bungled public health policy the nation endured would not have had merely catastrophic results, but horrific ones.

    1. Actually, the real problem is that, after years and years without a serious pandemic, our response systems had deteriorated. They were still there, and spending money, but concerning themselves with anything but their central missions.

      Covid exposed that these systems were comprehensively broken, and we had to fix them right in the middle of a pandemic. As Covid ebbs, they’re going to want to go back to being broken, too.

      1. “Covid exposed that these systems were comprehensively broken, and we had to fix them right in the middle of a pandemic”

        Good thing we had a can-do, hands-on chief executive who could just jump right in and fix it! “Relax” he said, “it’ll go away by itself”… and he was absolutely fine with letting people get sick and die from the damn thing right up until he himself got it, at which point it was “quick! airlift ME to the hospital and give me every possible treatment there is, because I don’t need it and I’ll beat the virus myself without any help.”

        1. Until a vaccine arrives pandemics run there course. The latest Hail Mary is double masking. In other words an admission that single cloth masks are not effective at disease control.

          1. Right, Abdul, nothing reduces the exponent except a vaccine. And keeping folks alive until a vaccine arrives is pointless.

            Got a source for any of that?

      2. Brett, policies won’t, “go back,” to being broken until they first get fixed. Let’s support fixing them, and we can worry about maintaining readiness later. Can you at least sign on to that?

    2. Seems like yet another pandemic prophet (the historical ash pile is quiet deep with the predecessors).

      Mutual action is predicated upon trust. You cannot mandate people into submission … you have to give them reason to believe that you are really doing what you think is best for the country. Then, they will follow willingly.

      1. AtR, it requires no power of prophecy to predict natural events which have occurred again and again throughout history will continue to happen in the future. The only folks who have to be forced (not mandated) into compliance (not submission) will be those who not only disagree that mandatory national policy is best for the country, but also put others lives at risk by refusing to comply. In the kind of public health crisis I hypothesize, those will be very few indeed.

  3. Perhaps the Justices have decided either that Roman Catholic Diocese of Brooklyn says everything that needs to be said and lower courts can apply it, or it’s time to find a case to hear oral argument on and issue an opinion from the main docket.

  4. To quote all the right-wing, clinging, deplorable, gun nuts; “Once they take away the second amendment, they will take away the first”.
    Welcome to the revolution.

    1. I think they’re in a hurry, and plan to do them both at the same time.

      The impression I get from some of their proposals is that they don’t really expect to control the government after 2022 unless they engage in some serious entrenchment; New states, mandating insecure elections, Court packing, and so forth. So they want to push through a load of hard to reverse things before anybody has time to organize against them.

      1. New states, mandating insecure elections, Court packing, and so forth.

        But keeping people from voting is not “entrenchment,” because it benefits Republicans.

        Why shouldn’t American citizens get to participate in elections to choose Senators?

        I agree with the organization which said,

        We support the right of the United States citizens of Puerto Rico to be admitted to the Union as a fully sovereign state.

        Why shouldn’t we make it easier to vote, given that all the talk about fraud is evidence-free BS?

        Nobody is talking about court-packing.

        1. Because those “American citizens” are people who were MADE citizens against the will of the people. Americans, in 1965, did not want tens of millions of new third world “fellow countrymen.”

          1. Americans, in 1868, said that everybody born here is a citizen.

            1. So? That has nothing to do with the 100 million illiterate third worlders and their low IQ descendants that have been foisted upon us since 1965.

        2. given that all the talk about fraud is evidence-free BS

          Are you trying to convince us, or yourself?

          1. I’m not trying to convince you, or the other fraud-mongers.

            Nothing will.

        3. Not just evidence-free BS, but laughable evidence-free BS. “Oh, I was ahead at 10 pm so how could I have lost when they finished counting the next day or two!” It’s like saying you couldn’t have lost a soccer game because the other team scored winning goals in extra time.

          1. Try using an American sport instead of a European one.
            Remember how the Atlanta Falcons won the Super Bowl because they got way ahead of the Patriots in the first half? It’s not like points scored in the second half count, after all.

      2. “New states, ”

        Filibuster should have been finished in 2017 but Mitch didn’t wan to. So, if the Dems do it now for DC and PR, it only moves the senate majority number by 2 {assuming PR returns 2 Dems which is not certain].

        NW Dakota and NE Dakota and SW Dakota and SE Dakota and South Idaho will remedy that later.

        Dems assume they are never losing power.

        1. Your hypothetical new states don’t have enough people in them. Creating new Senate seats with nobody to fill them doesn’t solve your problem, Bob.

          1. “don’t have enough people”

            Do they have 3? Because that is how many you need in DC.

            My problem would be solved with a GOP government freed [ala Harry Reid] from the filibuster.

        2. Bob, Dems believe they just won power. You purport to say otherwise. That could color their opinion of how to deal with you.

          As for the future, arguments in the form: “My opponents want equity; that justifies inequity by me, in retaliation,” won’t fly anymore. The majority’s patience is at an end, used up completely during the Trump administration.

          Try the majority further and they will find means you will rue provoking. You mistakenly suppose yourself a member of a powerful minority. You are instead numbered among a weak, “rights-on-paper” minority, one which continues at the sufferance of the others. It is a mistake to undermine by cheating a benign and gentle favoritism of which you yourself are a beneficiary. Not caring, you threaten to cheat.

        3. In other words, you have nothing at all to say about this.

          You would be delighted to break states with 700-880K people in them into multiple states to “get even” with Democrats if they admit states with population of 700,000 (more than WY or VT) and 3 million – which would be the 31st largest, out of nothing but pique.

      3. We definitely need more secure elections, look how in the most recent one the POTUS tried mightily to push state officials to ‘find’ votes for him and tell people they ‘recalculated.;

    2. “Welcome to the revolution.”

      The one that started and ended on the 6th?

  5. Supposedly the court does not like to take cases involving misapplication of a properly stated rule of law.

  6. Just to be clear: California lifted the stay at home order and put us back in the “Blueprint for a Safer Economy.” Based on the county data indoor worship of any kind is still forbidden for probably 99% of Californians, and counties do not have the authority to permit it. They have the authority to enforce measures more strict than the state, but they cannot be less strict.

    Of course Los Angeles County lets churches worship indoors with no percentage or number caps at all. They have been doing that since mid-December and the state hasn’t punished them. Other counties don’t seem to have the courage (or financial independence) to follow suit.

    1. ” indoor worship of any kind is still forbidden for probably 99% of Californians”
      ” Los Angeles County lets churches worship indoors with no percentage or number caps at all.”

      When did Los Angeles leave California?

      1. When it became part of Mexico

      2. It didn’t. Indoor worship remains forbidden in LA County; the county just hasn’t been enforcing it, so those willing to take the risk have been defying the ban (as I would if I lived there).

        1. From the LA County press release dated December 19th, 2020:
          “The Los Angeles County Health Officer Order will be modified today to align with recent Supreme Court rulings for places of worship. Places of worship are permitted to offer faith-based services both indoors and outdoors with mandatory physical distancing and face coverings over both the nose and mouth that must be worn at all times while on site. Places of worship must also assure that attendance does not exceed the number of people who can be accommodated while maintaining a physical distance of six feet between separate households. “

  7. …and here I suspected the lifting of the Order had more to do with the progress of signature gathering for Newsom’s Recall.

    Why should we believe the lifting has anything to do with the possibility of SCOTUS taking a case, when CA is so cavalier about SCotUS anyways, **AND** a Court Order provides political cover for otherwise doing things they want to pretend to their constituents that they don’t want to, or don’t have the power to, do. Like “Consent Decrees” over Law Enforcement Dept’s in heavily (D) municipalities.

    I don’t see how Newsom had anything to lose in a SCotUS fight over the current orders, and thus suspect some other factor at play. Propose its the progress of the potential Recall election, but open to other suggestions.

  8. I want somebody to call out the various governments on the definition of the word “guidance”.

  9. “The state still bans indoor worship.”

    the state does not.
    You’re (and any Californian) can go inside your house and worship up a storm. What the state bans is gathering large crowds.

  10. The notion that California made massive changes to its rules on outdoor dining, personal care services, etc. just to try to evade review (when actually the court decisions seem to make it pretty clear it’s unlikely the Supreme Court would take the case) on its policies with regard to indoor church services is absurd. Professor Blackman has totally lost track of the forest for the trees.

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