By: Philip A. Toomey, Esq.
This morning, the U.S. Supreme Court vacated a California district court order denying a church’s request for an injunction preventing enforcement of indoor in-person worship. Finding that its decision in Roman Catholic Diocese v. Cuomo (2020) 592 U.S. __ required the district court to reconsider its refusal to issue the injunction (Harvest Rock Church, Inc. v. Newsom, CV 20-6414), the Supreme Court remanded the case to the 9th Circuit Court of Appeals (who also denied the church’s request, (Harvest Rock Church, Inc. v. Newsom (2020) 977 F.3d 728)) with specific instructions to require the district court judge to reconsider his previous refusal.
In the Cuomo decision (rendered October 9th) the U.S. Supreme Court enjoined enforcement of New York’s restrictions on religious services. A majority of the court found the restrictions violated the First Amendment’s minimum requirement of neutrality to religion. The unusually direct language of the decision (including Justice Gorsuch’s remarkable statement, “It is time- past time- to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques”), and it coming so quickly after a prior decision reaching an opposite result on substantially similar facts (South Bay United Pentecostal Church v. Newsom (2020) 590 U.S. ___) led many to conclude an end to court deferral to government orders prohibiting in-person worship. This morning’s order seems to validate that conclusion.
Today’s decision should not come as any great surprise. Even new restrictive gathering orders seem to acknowledge constitutionally protected religious worship activities are exempt (see the November 28th Los Angeles County Public Health Order imposing additional restrictions on gatherings between individuals not living within the same household, but exempt “faith based services and protests, which are constitutionally protected rights”). The bottom line seems to be that executive orders, facially neutral and uniformly applied, will likely still enjoy court deferral. However, and just in time for the holidays, it appears rules that permit a Costco store to have hundreds of people shopping, yet prohibit a nearby church or synagogue from enjoying similar rights for indoor worship services, violate the First Amendment.
Should you have any questions regarding this decision, please contact our Leech Tishman attorneys in the Employment & Labor Practice Group.
Philip A. Toomey is a Partner at Leech Tishman and Chair of the firm’s national Employment & Labor and Immigration Practice Groups. He is based in Leech Tishman’s LAX office and can be reached at (424) 738-4400 or email@example.com.
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