FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARVEST ROCK CHURCH, INC., itself No. 20-56357 and on behalf of its member churches in California; HARVEST INTERNATIONAL D.C. No. MINISTRY, INC., itself and on behalf of its 2:20-cv-06414-JGB-KK member churches in California, Central District of California, Los Angeles Plaintiffs-Appellants,

ORDER

v.

GAVIN NEWSOM, in his official capacity as Governor of the State of California,

Defendant-Appellee.

Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.

In light of our court’s recent opinion in South Bay United Pentecostal

Church v. Newsom, No. 20-56358 (9th Cir. Jan. 22, 2021), Appellants’ emergency

motion for an injunction pending appeal is GRANTED in part and DENIED in

part, without prejudice to renewing the request before the merits panel in this case.

The State of California is enjoined from enforcing the following policies

against Harvest Rock Church or its member churches pending resolution of the

appeal in this case: (1) the fixed 100-person attendance limit on indoor places of

worship under Tier 2 of the State’s Blueprint for a Safer Economy; and (2) the fixed 200-person attendance limit on indoor places of worship under Tier 3 of the

Blueprint.

This injunction does not prevent the State from enforcing the following

policies against Harvest Rock or its member churches pending resolution of the

appeal in this case: (1) the total prohibitions against indoor worship under Tier 1 of

the Blueprint and the December 3 Regional Stay at Home Order; (2) the limitations

on attendance at indoor worship services under Tiers 2, 3, and 4 of the Blueprint

that are tied to a percentage of a facility’s fire-code capacity; and (3) the State’s

restrictions on singing and chanting at indoor worship services.

IT IS SO ORDERED.

2

FILED

Harvest Rock Church, Inc. v. Newsom, No. 20-56357

JAN 25 2021

O’SCANNLAIN, J., specially concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I agree that, in light of our court’s recent opinion in South Bay United

Pentecostal Church v. Newsom, — F.3d —, 2021 WL 222814 (9th Cir. Jan. 22,

2021), we must largely deny Harvest Rock Church’s emergency motion for an

injunction against the State of California’s draconian restrictions on indoor

worship services.

I write separately, however, because I believe that the decision in South Bay

is woefully out of step with both the Supreme Court’s decision in Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam), and our own

court’s decision in Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th

Cir. 2020). 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.

I

In an effort to combat the spread of COVID-19, California’s “Blueprint for a

Safer Economy” and its December 3 Stay at Home Order completely prohibit

indoor worship services in nearly the whole state. Even in the midst of the present

1 pandemic, these measures are drastic: California is the only state in the country

that imposes such a ban, according to the brief filed in this case by an organization

participating as amicus curiae. See Brief of the Becket Fund for Religious Liberty

as Amicus Curiae, Dkt. No. 29, at 2–4. Yet, in exactly the same locales where

indoor worship is prohibited, California still allows a vast array of secular facilities

to open indoors, including (to name only a few): retail stores, shopping malls,

factories, food-processing plants, warehouses, transportation facilities, childcare

centers, colleges, libraries, professional sports facilities, and movie studios.

II

We should have little trouble concluding that these severe measures violate

the Free Exercise Clause of the First Amendment. My view on that question is

unchanged from my dissent from our denial of Harvest Rock Church’s first

emergency motion for an injunction pending appeal in October. See Harvest Rock

Church, Inc. v. Newsom, 977 F.3d 728, 731 (9th Cir. 2020) (O’Scannlain, J.,

dissenting), cert. granted before judgment, — S. Ct. — , 2020 WL 7061630

(2020), and vacated on remand, 981 F.3d 764 (9th Cir. 2020). Since then, two

intervening cases have entered injunctions against attendance caps on worship

services that were far less extreme than California’s total ban. See Roman Cath.

Diocese, 141 S. Ct. at 63; Calvary Chapel, 982 F.3d at 1228. These controlling

decisions compel the same conclusion here.

2 A

First, there can be no doubt that California’s discriminatory treatment of

houses of worship must be subject to strict scrutiny. See Roman Cath. Diocese,

141 S. Ct. at 67; Calvary Chapel, 982 F.3d at 1233. Indeed, even the South Bay

opinion could not avoid that reality. See South Bay, 2021 WL 222814, at *8–9.

B

Second, the controlling decisions also eliminate any notion that California’s

measures withstand such scrutiny.

It should go without saying that strict scrutiny is an exceedingly difficult

standard to satisfy—indeed it is “our most rigorous and exacting standard of

constitutional review.” Miller v. Johnson, 515 U.S. 900, 920 (1995). To sustain its

ban on indoor worship, the State must demonstrate that such a measure is narrowly

tailored to serve a compelling state interest. Roman Cath. Diocese, 141 S. Ct. at

67. That is, the State must show that its “inroad on religious liberty . . . is the least

restrictive means of achieving” its compelling interest. Thomas v. Rev. Bd. of Ind.

Emp. Sec. Div., 450 U.S. 707, 718 (1981) (emphasis added).

The State’s interest in controlling the spread of a deadly pandemic is

unquestionably compelling; no one disputes this. But California has not come

close to showing that its measures are narrowly tailored to that interest. As

exhaustively recounted in the South Bay decision, the State submitted many pages

3 of expert testimony setting forth its understanding of how COVID-19 is spread and

why indoor activities present a risk of such spread. But even if we were to accept

that testimony as true, 1 it does not support a total ban on indoor services as the

least restrictive means available to mitigate the risk at places of worship.

And how could it be? The South Bay decision itself proves the point that

there are many ways that the State might safeguard indoor activities that stop well

short of a total prohibition. The opinion discusses at great length the variety of less

severe measures that California has taken to allow all manner of secular activity to

take place safely indoors, including occupancy limitations; facemask, physical-

distancing, and disinfection protocols; installation of plexiglass barriers; regular

COVID-19 testing practices; and penalties the State might enforce for failures to

comply with such requirements. See generally South Bay, 2021 WL 222814, at

*11–15. The obvious conclusion should be that, because the State has found

measures like these sufficient to safeguard indoor activities as varied as running a

1 With respect, I question the salience of much of the evidence recounted in South Bay, which, among other things, often presents assertions about issues far beyond the scientific expertise of an infectious disease specialist. For example, the views of an epidemiologist can hardly compel deference on matters of religion. Thus, I see no reason for our court to have credited an epidemiologist’s assertion that individuals come to places of worship for the specific “purpose of being together,” South Bay, 2021 WL 222814, at *3 (quoting declaration of Dr. George Rutherford), as opposed to any number of relevant private religious purposes— such as to pray to God within the sacred and spiritually uplifting confines of a church, synagogue, or mosque. 4 daycare center, shopping in a mall, working in a warehouse or factory, riding

public transportation, practicing a professional sport, attending a college class, or

filming a movie, then surely some combination of similar measures might work for

indoor religious worship as well.

Even if it weren’t otherwise clear that the State’s total ban is not the

narrowest way by which it might make indoor worship safer, the Supreme Court’s

decision in Roman Catholic Diocese dictates such a conclusion. There, the Court

held that New York’s 25-person cap on attendance at worship services was a

restriction “far more severe than has been shown to be required to prevent the

spread of the virus.” Roman Cath. Diocese, 141 S. Ct. at 67. The Court observed

that “there are many other less restrictive rules that could be adopted to minimize

the risk to those attending religious services,” including, “[a]mong other things,”

tying “the maximum attendance at a religious service . . . to the size of the church

or synagogue.” Id. Our court subsequently held that even a 50-person cap on

attendance at worship services was too inflexible to be narrowly tailored. Calvary

Chapel, 982 F.3d at 1234.

If fixed attendance caps of 25 or 50 people are too rigid and too extreme to

withstand strict scrutiny, how can a complete ban not be? To paraphrase the

Supreme Court, nothing in the record recounted in South Bay supports the

conclusion that “admitting [even a single person] to a 1,000-seat church or 400-

5 seat synagogue would create a more serious health risk than the many other

activities that the State allows.” Roman Cath. Diocese, 141 S. Ct. at 67. Although

we judges “are not public health experts,” id. at 68, we cannot simply forfeit all

common sense to the State’s assertions. We must instead insist upon a “serious

examination of the need for [the State’s] drastic measure[s].” Id. Under any

meaningful examination, California’s complete ban on indoor worship fails strict

scrutiny—just as New York’s and Nevada’s more permissive regimes did before.

III

The remaining Winter factors also favor an injunction. See Winter v. Nat.

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

Because the State’s restrictions violate the Free Exercise Clause of the First

Amendment, there “can be no question” that their continued enforcement would

cause irreparable harm to the religious believers and places of worship currently

prohibited from worshipping indoors. Roman Cath. Diocese, 141 S. Ct. at 67.

An injunction to protect these constitutionally guaranteed rights undoubtedly

serves the public interest. Although the State’s concern for mitigating a public

health crisis is undeniably weighty, “[n]o public interest is served by maintaining

an unconstitutional policy when constitutional alternatives are available to achieve

the same goal.” Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d Cir.

2020); see also Hernandez v. Sessions, 872 F.3d 976, 996 (9th Cir. 2017) (“[T]he

6 injunction serves the interests of the general public by ensuring that the

government’s . . . procedures comply with the Constitution.”).

“[E]ven in a pandemic, the Constitution cannot be put away and forgotten.”

Roman Cath. Diocese, 141 S. Ct. at 68. Thus, as both the Supreme Court and our

court have agreed: Even in a case with such vital interests on each side, the balance

of harms and the public interest require us to enjoin the State’s unconstitutional

practices. Indeed, neither court appears to have had much difficulty reaching such

a conclusion. See id. at 67–68; Calvary Chapel, 982 F.3d at 1234.

Until now.

7

FILED

Harvest Rock Church v. Newsom, No. 20-56357

JAN 25 2021

Christen, Circuit Judge, concurring

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I write separately, and briefly, to clarify a few points.

First, when Harvest Rock filed its emergency motion for injunction pending

appeal, two other emergency motions were pending in which houses of worship

challenged California’s response to the COVID-19 pandemic. One of those cases,

Gish v. Newsom, No. 20-56324, was consolidated with South Bay Pentecostal

Church v. Newsom, No. 20-56358, but the issues in Harvest Rock’s motion were

not aligned with those presented in South Bay. In particular, the briefing in South

Bay addressed California’s December 3, 2020 Stay at Home and an order issued

December 19, 2020 by Los Angeles County.

The posture of these challenges changed at the January 4, 2021 argument

held on Harvest Rock’s motion because the parties agreed to supplement their

briefs to address the December 3, 2020 Stay at Home Order. Additionally, the

order issued by Los Angeles County was withdrawn. At that point, the issues

raised by Harvest Rock’s motion became aligned with those in South Bay, and

under our court rules, the South Bay panel had priority to issue merits ruling. See

General Order 4.1(a). Oral argument was held in South Bay on January 15, 2021.

To avoid issuing a ruling on Harvest Rock’s emergency motion that might have

conflicted with South Bay’s merits ruling—especially at a time when California’s public health system is under tremendous strain—it was important to allow the

South Bay panel time to issue its opinion.

Second, because the South Bay panel has priority, the relief ordered here

mirrors the relief granted in South Bay.