(Bethany Blankley) – A California church is continuing its legal battle against California Gov. Gavin Newsom pending an appeal before the U.S. Supreme Court, as the court on Monay announced it declined to hear a similar religious freedom case brought by a Nevada church.
On Monday, the Supreme Court declined to hear a case brought by Calvary Chapel Dayton Valley, Nevada.
“The Court’s ruling does not end the church’s case,” Alliance Defending Freedom, the organization representing the church, states. “It simply declined to halt Nevada’s unequal treatment of the church while the case continues in lower federal courts.”
Governors and local governments continuing to treat houses of worship differently than secular entities “is cause for future concern,” ADF adds. “When the government believes it has the power to ban singing in church, drive-in church services, or worship services that comply with all neutral safety precautions, religious freedom is in jeopardy.”
In California, the Ninth Circuit Court of Appeals granted an injunction against Gov. Gavin Newsom’s Blueprint Tiers 2-4, filed by Harvest Rock Church. But it denied the injunction against Tier 1, which bans all in-person worship for nearly all houses of worship statewide. Tiers 2-3 placed a 100- and 200- person cap on all houses of worship despite the size of the building. But because most houses of worship fall into Tier 1, the injunction appears to be toothless.
On July 13, 2020, Newsom banned all indoor worship. On Aug.28, the Blueprint banned all worship in Tier 1, which covers most of the state. On Dec. 3, Newsom issued a “temporary” Regional Stay-at-Home Order continuing a ban on all worship for 99.9 percent of California residents, Liberty Council, representing Harvest Rock, notes. While the Regional Stay-at-Home Order was lifted, the Blueprint banning worship for more than 99 percent of the state remains in place.
The three-judge Ninth Circuit panel said it based its decision on a Jan. 22 ruling in South Bay United Pentecostal Church v. Newsom.
In his sole dissent, Judge Diarmuid O’Scannlain wrote that the Ninth Circuit Court of Appeals’ opinion not only conflicts with the Supreme Court’s recent New York ruling involving churches and synagogues, but also conflicts with a prior Ninth Circuit panel, which struck down the 50-person limit in Nevada.
Liberty Counsel founder and chairman Mat Staver, who represents Harvest Rock Church, said, “We will return to the Supreme Court for the second time. Striking down a restriction of 100 and 200 people in Tiers 2-3 and upholding a total ban in Tier 1 makes no sense. California’s total ban on worship since July 13 is the most severe in the country. This will not stand. The High Court has already issued a clear road map that leads to the ultimate conclusion that Gov. Gavin Newsom’s ban of worship is unconstitutional.”
In the Nevada case, Calvary Chapel Dayton Valley sued Nevada officials last May in response to Gov. Steve Sisolak’s emergency order banning all houses of worship from holding in-person services of 10 or more people. The cap was later expanded to 50 people.
The order discriminates against houses of worship, the church argues, since restaurants and casinos could be open at 50 percent capacity and houses of worship could not.
“If a casino and a church both have a capacity of 2,000, the casino can entertain 1,000 gamblers while the church can host only 50 worshippers,” ADF notes. “Such discriminatory treatment is unconstitutional as it treats religious organizations worse than non-religious organizations that host large gatherings.”
The U.S. District Court in Nevada denied the church’s motions seeking a stay of Sisolak’s orders. The church appealed to the appeals court, which declined to intervene, and then appealed to the U.S. Supreme Court.
Justice Elena Kagan, who oversees the ninth circuit covering Nevada, denied the application for injunctive relief in July 2020. Justice Samuel Alito, joined by Justices Clarence Thomas and Brett Kavanaugh, wrote in their dissent that Sisolak claimed “virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic.”
“In dissent, Justices Thomas, Alito, Gorsuch, and Kavanaugh gave many reasons why the church should win,” ADF adds. “If the case reaches the Supreme Court again, the church will have the opportunity to defend its rights with significant Supreme Court precedent in its favor.”
In a ruling last month, a Ninth Circuit panel said the church demonstrated a likelihood of success on the merits of its free exercise claim. “Accordingly, we reverse the district court, instruct the district court to employ strict scrutiny review to its analysis of the Directive, and preliminarily enjoin the State from imposing attendance limitations on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity. The district court may modify this preliminary injunctive relief, consistent with this opinion and general equitable principles,” the panel ruled.
Litigation continues for both cases in lower courts.