985 F.3d 1128
9th Cir.2021Background
- California adopted a tiered “Blueprint” and a Regional Stay at Home Order that restrict activities by transmission risk: outdoor worship is allowed without attendance limits; Tier 1/Regional Stay orders bar indoor worship; Tiers 2–3 permit indoor worship subject to percentage limits and numerical caps (25%/100 in Tier 2; 50%/200 in Tier 3).
- South Bay United Pentecostal Church (and Bishop Hodges) sued, alleging the restrictions (especially the indoor ban, the singing/chanting ban, and the 100/200 caps) violate the Free Exercise Clause; they sought a preliminary injunction to allow indoor services.
- The district court denied injunctive relief after extensive factual findings crediting California public-health experts; the Ninth Circuit previously denied emergency relief and remanded for further consideration post-Roman Catholic Diocese.
- The Ninth Circuit panel applied strict scrutiny where religious services were treated less favorably than comparable secular activities and reviewed the record of transmission risk, expert testimony, and industry guidance.
- Holding summary: the court affirmed denial of an injunction against the Tier 1/Regional indoor-worship prohibition and upheld the statewide ban on indoor singing/chanting under rational-basis review, but concluded the numerical attendance caps (100/200) in Tiers 2–3 likely violate the Free Exercise Clause and must be enjoined.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Regional Stay at Home Order and Tier 1 prohibition on indoor worship violate the Free Exercise Clause | South Bay: ban prevents core Pentecostal communal indoor worship and singles out religion compared to indoor secular activities | Newsom: neutral, risk-based framework applied across sectors; compelling interest in stopping COVID spread; restrictions narrowly tailored | Court: strict scrutiny applies (differential treatment), but prohibition is narrowly tailored given record and emergency — injunction denied |
| Whether numerical caps (100 in Tier 2; 200 in Tier 3) on indoor worship violate the Free Exercise Clause | South Bay: untethered numeric caps are not least restrictive; church size should govern limits; other sectors less restricted | Newsom: caps are risk-based measures within the tiered framework to limit transmission | Court: strict scrutiny applies and South Bay likely to succeed on this claim; enjoin 100/200-person caps in Tiers 2–3 (remand to district court) |
| Whether the statewide ban on indoor singing and chanting violates the Free Exercise Clause | South Bay: singing/chanting is core religious practice and its ban targets worship | Newsom: ban is neutral, applies to all indoor gatherings; evidence shows singing increases transmission; rationally related to public health | Court: ban is neutral and survives rational-basis review; South Bay not likely to succeed |
| Whether differential capacity limits on religious vs. secular activities trigger strict scrutiny | South Bay: unequal limits show non-neutral treatment of religion | Newsom: framework uses neutral, objective risk criteria applied across activities | Court: following Roman Catholic Diocese, differential capacity treatment triggers strict scrutiny when religion is treated worse; applied strict scrutiny here |
Key Cases Cited
- Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (laws not neutral or generally applicable trigger strict scrutiny)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (differential treatment of religious services vs. secular activities requires strict scrutiny in COVID restrictions)
- Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020) (applied Roman Catholic Diocese to COVID-era limits and strict scrutiny analysis)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (standard for preliminary injunctions)
- McCullen v. Coakley, 573 U.S. 464 (2014) (narrow tailoring/least-restrictive-means requirement for content-neutral time/place restrictions)
- South Bay United Pentecostal Church v. Newsom, 959 F.3d 938 (9th Cir. 2020) (prior emergency appeal and related procedural history)