Religious Freedom Wins for Churches in California over COVID Restrictions

In two court cases this week, churches were granted relief from California Governor Gavin Newsom’s onerous COVID-related orders that treat indoor worship services more harshly than similarly situated secular businesses.

In the first case, South Bay United Pentecostal Church v. Newsom, a three-judge panel of the 9th U.S. Circuit Court of Appeals, following the instruction of the U.S. Supreme Court from a week ago in another California church case, vacated a lower court decision in favor of the governor’s restrictions on churches. The lower court had denied the church’s request for an injunction that would allow it to worship indoors, on par with limits and guidelines set for secular businesses and other activities. The 9th Circuit’s order means that the lower court will likely now grant the injunction request of the church in the very near future.

In the second case, Burfitt v. Newsom, a California state court judge granted a preliminary injunction in favor of a Catholic priest who had sued the governor, challenging the constitutionality of his total ban on indoor worship, while simultaneously allowing big box retail stores, grocery stores, hotels, train and bus stations, warehouses, factories and schools to remain open.

“The restrictions at issue here,” wrote Judge Gregory Pulskamp in his order, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”

You can thank Supreme Court Associate Justice Amy Coney Barrett, who hasn’t even written a single judicial opinion since her ascension to the high court, for those two California wins. Let me explain.

When the South Bay case came before the Supreme Court last May with an emergency request for relief against restrictions on indoor worship, the court ruled against the church in a 5-4 ruling in which Chief Justice John Roberts wrote the controlling opinion asserting that deference to state officials during the pandemic superseded the religious freedom claims of the church. Roberts was joined by the liberal wing of the court, which at that time included Justice Ruth Bader Ginsburg.

But the equation changed in September with the death of Justice Ginsburg. With President Donald Trump’s appointment of Barrett to the high court, the four conservatives who were in the minority in the South Bay case suddenly became the majority in another church case involving COVID-related restrictions issued by New York Governor Andrew Cuomo. In that case, decided November 25, the high court granted an injunction to a New York Catholic archdiocese and an Orthodox Jewish umbrella organization blocking the application of Cuomo’s restrictions on public gatherings that treated churches less favorably than other entities.

That’s when the dominoes started falling in favor of religious liberty. On December 3, the justices issued their order to the 9th Circuit referred to above, which looks as though it will change the outcome of current church challenges to Gov. Newsom’s restrictions on indoor worship in California.

Father Trevor Burfitt is represented by the Thomas More Society. In a press release celebrating the priest’s victory, Special Counsel Christopher Ferrara said:

“The Supreme Court’s decision in Brooklyn Diocese v. Cuomo has opened the way to the liberation of churches from the absurd and bigoted superstition that they are veritable death chambers threatening the entire population. Not even hair salons, which by the services offered necessitate close personal contact, have been subjected to the onerous and barefaced biases heaped upon houses of worship.”

Although South Bay Pentecostal and Father Burfitt seem to be winning their cases, there’s still another California church that should also be seeing success but isn’t quite there yet. Harvest Rock Church, the subject of the Supreme Court’s December 3 order to the 9th Circuit referred to above, has been unable to get the federal district court to do anything other than schedule another hearing for December 18.

That’s not good enough for the church, which has filed another petition with the Supreme Court asking for relief. The church is represented by lawyers with Liberty Counsel.

In a press release, Liberty Counsel Founder and Chairman Mat Staver said, “Our case is back at the Supreme Court to seek emergency relief from the daily criminal threats and fines. These threats and fines extend to every parishioner and carry up to one year in prison. The lower district court cannot ignore the irreparable harm or the Supreme Court’s clear roadmap. The High Court has left the door open for resolution.” 

As the U.S. Department of Justice said early on in its support for church gatherings, “There is no pandemic exception to the U.S. Constitution and its Bill of Rights.” Now that a majority of the Supreme Court’s justices agree with that assertion, we hope to begin seeing a more level playing field for religious freedom in the very near future.

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