Opposition Brief — South Bay United Pentecostal Church, et al., Petitioners v. Gavin Newsom, Governor of California, et al.

No. 20-746

In the Supreme Court of the United States

SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL.,

Petitioners,

v.

GAVIN NEWSOM, ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

THOMAS S. PATTERSON

Senior Assistant

Attorney General

March 18, 2021

SAMUEL T. HARBOURT

HELEN H. HONG*

Deputy Solicitors General

PAUL E. STEIN

Supervising Deputy

Attorney General

TODD GRABARSKY

LISA J. PLANK

Deputy Attorneys General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

600 West Broadway, Suite 1800

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

(619) 738-9693

Helen.Hong@doj.ca.gov

*Counsel of Record

i

QUESTION PRESENTED

This petition was filed in November 2020 as a petition for a writ of certiorari before judgment, following

the district court’s denial of a motion to preliminarily

enjoin certain restrictions on indoor worship services

adopted by California in response to the ongoing

COVID-19 pandemic. Thereafter, the Court decided

Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S.

Ct. 63 (2020) (per curiam), and the court of appeals

vacated the challenged order and remanded for reconsideration in light of Roman Catholic Diocese. In December 2020, the district court considered the

restrictions in place at that time and denied petitioners’ renewed motion for a preliminary injunction. The

court of appeals affirmed in part, allowing the State to

impose a prohibition on indoor worship services in

counties where the virus is especially widespread, but

reversing with respect to certain numerical limits on

indoor worship where transmission rates are lower.

This Court then granted additional injunctive relief,

barring the State from enforcing a “prohibition on indoor worship services.” South Bay United Pentecostal

Church v. Newsom, 141 S. Ct. 716 (2021). The Court

did not, however, enjoin the State from “imposing a

25% capacity limitation on indoor worship services” or

a “prohibition on singing and chanting during indoor

services.” Id. In response, the State modified its policies to withdraw the prohibition on indoor worship. It

also revised the singing policy to permit some singing

during indoor services in all parts of the State. The

question presented is:

Whether the court of appeals erred by affirming in

part the district court’s December 2020 denial of a preliminary injunction with respect to certain restrictions

on indoor worship activities in place at that time.

ii

DIRECTLY RELATED PROCEEDINGS

U.S. Supreme Court:

South Bay United Pentecostal Church v. Newsom,

No. 20A136 (Feb. 5, 2021) (this case) (granting in

part application for injunctive relief).

South Bay United Pentecostal Church v. Newsom,

No. 19A1044 (May 29, 2020) (denying application

for injunctive relief).

U.S. Court of Appeals for the Ninth Circuit:

South Bay United Pentecostal Church v. Newsom,

No. 20-56358 (Jan. 22, 2021) (this case below) (affirming denial of preliminary injunction).

South Bay United Pentecostal Church v. Newsom,

No. 20-55533 (Dec. 8, 2020) (vacating October 15,

2020 order denying preliminary injunction).

U.S. District Court for the Southern District of California:

South Bay United Pentecostal Church v. Newsom,

No. 20-cv-865 (Dec. 21, 2020) (this case below)

(denying renewed motion for preliminary injunction).

South Bay United Pentecostal Church v. Newsom,

No. 20-cv-865 (October 15, 2020) (denying renewed motion for preliminary injunction).

iii

TABLE OF CONTENTS

Page

Introduction ................................................................. 1

Statement .................................................................... 2

Argument ..................................................................... 9

Conclusion.................................................................. 13

iv

TABLE OF AUTHORITIES

Page

CASES

Agudath Israel of Am. v. Cuomo,

983 F.3d 620 (2d Cir. 2020).................................. 12

Calvary Chapel Dayton Valley v. Sisolak

982 F.3d 1228 (9th Cir. 2020) .............................. 12

Calvary Chapel of Ukiah v. Newsom

No. 20-cv-1431-KJM (E.D. Cal.) ............................ 9

Cassell v. Snyders

2021 WL 852227 (7th Cir. 2021).......................... 12

Cross-Culture Christian Center v.

Newsom, No. 20-cv-832 (E.D. Cal.) ........................ 8

Fulton v. City of Philadelphia

No. 19-123 ............................................................. 11

Gateway City Church v. Newsom, et al.

No. 20-cv-8241 (N.D. Cal.) ................................... 10

Harvest Rock v. Newsom

C.A. No. 20-56357................................................. 10

Harvest Rock v. Newsom

No. 20A137 ........................................................... 10

Jacobson v. Massachusetts

197 U.S. 11 (1905) ................................................ 12

v

TABLE OF AUTHORITIES

(continued)

Page

Monclova Christian Acad. v. ToledoLucas Cty. Health Dep’t

984 F.3d 477 (6th Cir. 2020) ................................ 12

Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63 (2020)......................... 1, 5, 12

South Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (2020) ............................ 3

South Bay United Pentecostal Church v.

Newsom, 141 S. Ct. 716 (2021) .................... passim

South Bay United Pentecostal Church v.

Newsom, 2020 WL 7488974 (S.D.

Cal. Dec. 21, 2020).............................................. 5, 6

South Bay United Pentecostal Church v.

Newsom, 981 F.3d 765 (9th Cir.

2020) ....................................................................... 5

South Bay United Pentecostal Church v.

Newsom, 985 F.3d 1128 (9th Cir.

2021) ................................................................. 6, 12

COURT RULES

Rule 15 of the Supreme Court of the

United States.......................................................... 9

vi

TABLE OF AUTHORITIES

(continued)

Page

OTHER AUTHORITIES

Cal. Dep’t of Public Health, Blueprint

for a Safer Economy,

https://www.cdph.ca.gov/Programs/C

ID/DCDC/CDPH%20Document%20Li

brary/COVID-19/DimmerFramework-September_2020.pdf .......................... 8

Shapiro, et al., Supreme Court Practice

§ 4.4(d) (11th ed. 2019)......................................... 11

State of California, Blueprint for a Safer

Economy—Current tier assignments

as of March 16, 2021,

https://covid19.ca.gov/safer-economy/ .................... 8

State of California, Blueprint for a Safer

Economy—Vaccine Equity Metric,

https://covid19.ca.gov/safer-economy/ .................... 4

State of California, Industry Guidance

to Reduce Risk,

https://covid19.ca.gov/industryguidance/#worship ................................................. 8

1

INTRODUCTION

Petitioners filed this petition for a writ of certiorari

before judgment in November 2020, following the district court’s October 15, 2020 denial of a motion to preliminarily enjoin California’s restrictions on indoor

worship. Since then, this Court issued Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)

(per curiam), and the court of appeals vacated the October 15 order and remanded for further proceedings.

On remand, the district court denied a renewed motion for preliminary injunction and, in January 2021,

the court of appeals affirmed in part and reversed in

part. Following the court of appeals’ decision, petitioners asked this Court to construe their petition as one

seeking review of that judgment. See Letter from

Charles S. LiMandri, to Hon. Scott R. Harris (Jan. 26,

2021).

The State does not object in this context to the

Court construing the petition for a writ of certiorari

before judgment as a “conventional” petition seeking

review of the court of appeals’ January 2021 opinion.

Id. But circumstances arising after that decision

make this case a particularly inappropriate vehicle for

plenary review of the free-exercise issues presented in

the petition: Petitioners are no longer prohibited from

gathering indoors to worship. This Court enjoined the

State from enforcing the total prohibition on indoor

worship while allowing it to continue to impose certain

percentage-capacity limits on attendance, without

prejudice to petitioners “presenting new evidence to

the District Court” to challenge the percentage-capacity restriction. South Bay United Pentecostal Church

v. Newsom, 141 S. Ct. 716 (2021). In response to that

ruling, the State swiftly changed its policies, withdrew

the prohibition on indoor worship, and allowed indoor

2

worship subject to percentage-capacity limits. In addition, the State has altered its policies to permit indoor singing and chanting by performers. Although

the State continues to impose certain restrictions on

indoor worship (and other comparable secular activities), petitioners did not challenge the policies in their

current form in the district court until last week, and

they have not yet developed a record that would facilitate plenary review by this Court of any remaining

disputes between the parties.

STATEMENT

1. The State has explained in detail the background epidemiological and public health considerations informing its evolving response to the COVID-19

pandemic. See State of California’s Consolidated

Opp’n to Emergency App. for Writ of Injunction at 216, No. 20A136 (Jan. 29, 2021). In brief, the State’s

emergency measures have been “adjusted in real time

based on new data” and the latest scientific understanding of how the virus transmits. E.R. 520 ¶ 59. 1

In the earliest phase of the State’s response to COVID19, the Governor issued an executive order generally

requiring individuals to stay at home, E.R. 1167-1168;

since then, the State has modified its policies several

times in response to changing rates of transmission,

as well as evidence showing which activities pose the

greatest risk of contributing to spread of the virus, id.

at 351-384, 520-532. Throughout the pandemic, the

State has sought to limit the potential for large numbers of people from different households to gather indoors for extended periods of time. It has thus

1 “E.R.” refers to the Excerpts of Record filed in the court of appeals, C.A. No. 20-56358, Dkt. 18 (Dec. 31, 2020).

3

imposed limits on indoor worship services, restaurants, lectures, concerts, movie showings, spectator

sports, and theatrical performances, among other activities. See, e.g., E.R. 379-384.

2. Petitioner South Bay United Pentecostal

Church is a church located near San Diego, California

and petitioner Bishop Arthur Hodges III serves as its

Senior Pastor. Pet. 17. They filed a complaint in May

2020 alleging that the State’s earliest restrictions regarding indoor and outdoor gatherings violated the

Free Exercise Clause by prohibiting “out-of-home religious services.” D.Ct. Dkt. 1 ¶ 115. Petitioners simultaneously sought a temporary restraining order,

which the district court denied. Id. Dkt. 3; Pet. App. F.

Petitioners appealed and moved for an injunction

pending appeal. The Ninth Circuit denied immediate

injunctive relief, reasoning that petitioners had not

demonstrated a likelihood of success on the merits.

C.A. No. 20-55533, Dkt. 28, 29; Pet. App. D. Meanwhile, as the rate of COVID-19 infection slowed, the

Governor announced a roadmap to guide reopening of

the State. See E.R. 1193-1203. As part of that reopening, on May 25, the State allowed in-person worship

services to resume statewide, but limited attendance

to 100 persons or 25% of building capacity, whichever

was lower. Id. at 1211. This Court denied an emergency request by petitioners to enjoin those revised

policies. See South Bay United Pentecostal Church v.

Newsom, 140 S. Ct. 1613 (2020).

In July, while petitioners’ appeal of the denial of

the preliminary injunction was still pending before the

court of appeals, the State tightened restrictions in response to a resurgence in COVID infections and

deaths. For example, the State closed indoor operations of certain activities, including worship services,

4

in counties with elevated infection levels. E.R. 525526 ¶¶ 79-81. In light of those changes, petitioners

requested a limited remand to the district court to develop a record with respect to the operative restrictions and to renew their motion for a preliminary

injunction. C.A. No. 20-55533, Dkt. 56. The court of

appeals granted that request. Pet. App. B.

On remand, the district court considered evidence

relating to the State’s “Blueprint for a Safer Economy.” See E.R. 351-384. Under that Blueprint, many

restrictions in a county varied with the level of community transmission: for example, Tier 1 counties had

significant viral transmission and correspondingly

stringent restrictions, and Tier 4 counties had lesser

transmission and more relaxed restrictions. Id. Indoor gatherings for certain businesses and activities—

including museums, movie theaters, restaurants, and

worship services—were thus prohibited in Tier 1 counties. Id. at 379-384. In counties where the virus was

not widespread, the State allowed these activities to

operate indoors with capacity limitations: from the

lesser of 25% capacity or 100 persons in Tier 2, to the

lesser of 50% capacity or 200 persons in Tier 3, to 50%

capacity in Tier 4. See id. 2

On October 15, the district court denied petitioners’ renewed motion for injunctive relief. The court

concluded that it was unlikely that petitioners would

2 On March 14, 2021, the State adjusted the framework to allow

a county to move to less restrictive tiers even with somewhat

higher case rates than under the prior framework because two

million vaccine doses had been administered to the hardest-hit

portions of the State. See State of California, Blueprint for a

Safer Economy—Vaccine Equity Metric, https://covid19.ca.gov

/safer-economy/ (last visited Mar. 17, 2021).

5

succeed on their free-exercise claim because “the evidence shows that the State’s restrictions are based on

the elevated risk of transmission of the novel coronavirus in indoor settings, particularly congregate activities and those involving singing and chanting.” Pet.

App. A 31a. The parties then returned to the court of

appeals and filed supplemental briefing. C.A. No. 2055533, Dkt. 80, 83, 89. On November 24, before the

court of appeals issued a decision, petitioners filed this

petition for a writ of certiorari before judgment, seeking review of the district court’s October 15 order

denying a preliminary injunction. See Pet. 1.

The next day, this Court issued its decision in Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct.

63 (2020) (per curiam). In that decision, the Court

granted an injunction pending appeal with respect to

certain occupancy limits on worship in New York, reasoning that the plaintiffs had made a “strong showing

that [New York’s] restrictions violate ‘the minimum

requirement of neutrality’ to religion” and were not

“‘narrowly tailored’” to the State’s interest in “[s]temming the spread of COVID-19.” Id. at 66, 67.

Following that decision, the court of appeals in this

case vacated the district court’s October 15 order denying a preliminary injunction and remanded for further

consideration in light of Roman Catholic Diocese. See

South Bay United Pentecostal Church v. Newsom, 981

F.3d 765 (9th Cir. 2020). In those remand proceedings, the district court considered an up-to-date record

and again denied preliminary injunctive relief. The

district court read Roman Catholic Diocese to require

“strict scrutiny review when a state imposes different

capacity restrictions on religious worship services as

compared to non-religious activities and entities.”

South Bay United Pentecostal Church v. Newsom,

6

2020 WL 7488974, at *8 (S.D. Cal. Dec. 21, 2020). Applying that standard, the court concluded that California “did exactly what the narrow tailoring

requirement mandates,” by “carefully design[ing]” its

restrictions based on a “neutral . . . risk analysis.” Id.

at *11. Petitioners appealed. C.A. No. 20-56358.

The court of appeals affirmed in part and reversed

in part. South Bay United Pentecostal Church v. Newsom, 985 F.3d 1128 (9th Cir. 2021). The court affirmed

the prohibition on indoor worship in Tier 1 counties.

Id. at 1142-1147. But it concluded that petitioners

were likely to succeed in their challenge to the 100and 200-person numerical capacity limits in Tiers 2

and 3. Id. at 1151-1152. The court reasoned that it

could not “find record evidence” establishing that

those numerical restrictions would be “necessary to

achieve [the State’s] goal in further slowing community spread” when virus transmission was lower. Id.

at 1151. The court declined to reach the validity of

percentage-capacity limitations (25% in Tier 2 and

50% in Tiers 3 and 4) because “the district court did

not rule on this challenge, nor did the parties present

specific evidence regarding the narrowly tailored inquiry with respect to the percentage limitations below

or make meaningful arguments here.” Id. at 1151

n.38; see id. (“If South Bay desires to challenge these

percentage limitations, it must return to the district

court.”).

After the court of appeals issued its decision, petitioners notified this Court of the decision below and

asked the Court to construe their pending petition for

a writ of certiorari before judgment as a “conventional”

petition. Letter from Charles S. LiMandri, to Hon.

Scott R. Harris (Jan. 26, 2021). Petitioners also filed

an emergency application in this Court, asking the

7

Court to enjoin any capacity restriction on indoor worship as well as the State’s “outright prohibition on

singing or chanting during indoor worship services.”

Application at 5, No. 20A136 (Jan. 25, 2021).

On February 5, the Court granted the application

in part, enjoining enforcement of the Tier 1 prohibition

on indoor worship services pending disposition of a petition for a writ of certiorari. South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021). The

Court denied the application with respect to the percentage capacity limitations and permitted the State

to impose a “25% capacity limitation on indoor worship

services in Tier 1.” Id. The Court also denied the application with respect to the prohibition on singing

and chanting during indoor services. Id. The Court’s

order was without prejudice to petitioners “presenting

new evidence to the District Court that the State is not

applying the percentage capacity limitations or the

prohibition on singing and chanting in a generally applicable manner.” Id.; see also id. at 717 (Barrett, J.,

concurring) (observing that “the record is uncertain”

and that petitioners “remain free to show that the

singing ban is not generally applicable and to advance

their claim accordingly”).

3. In response to this Court’s order, the State

amended its restrictions on February 6, withdrawing

the total prohibition of indoor worship in Tier 1 (and

eliminating the numerical capacity limits in Tiers 2

and 3 to adhere to the decision below). The modified

policies now allow indoor worship in Tiers 1 and 2 at

25% capacity and in Tiers 3 and 4 at 50% capacity. 3

3 The State’s website refers to these policies as “interim capacity

limits” because the guidance for places of worship (dated July 29,

2020), is “in the process of being updated” to reflect those

8

The State also modified its singing and musical performance guidance, allowing “performers” (but not

congregants) to sing, chant, or play wind instruments

during indoor worship services provided that they

comply with certain physical distancing and masking

requirements. 4

On March 11, petitioners filed a motion for a temporary restraining order in the district court with respect to the percentage-capacity restriction in Tier 2.

D. Ct. Dkt. 100 (Mar. 11, 2021). Briefing on that motion will be complete on March 26 and a hearing is

scheduled for March 29. Id. at 106 (Mar. 17, 2021). 5

changes. See State of California, Industry Guidance to Reduce

Risk, https://covid19.ca.gov/industry-guidance/#worship (drop

down menu “Places of worship and cultural ceremonies—updated

February 22, 2021”) (last visited Mar. 17, 2021). A chart of permissible activities has been updated to reflect the change. See

Cal. Dep’t of Public Health, Blueprint for a Safer Economy,

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/COVID-19/Dimmer-Framework-September_2020.pdf (last visited Mar. 17, 2021). As of March 16, with

improving infection rates across the State, only 11 of 58 counties

remain in Tier 1. See State of California, Blueprint for a Safer

Economy—Current tier assignments as of March 16, 2021,

https://covid19.ca.gov/safer-economy/.

4 In addition, worshippers may sing along with performers dur-

ing outdoor worship services while masked. See State of California, Industry Guidance to Reduce Risk, https://covid19.ca.gov/

industry-guidance/#worship (drop down menu “Places of worship

and cultural ceremonies—updated February 22, 2021”) (last visited Mar. 17, 2021).

5 In a separate matter, a district court recently denied a motion

to enjoin the percentage-capacity and singing restrictions. See

Cross-Culture Christian Center v. Newsom, D. Ct. No. 20-cv-832JAM (E.D. Cal.), Dkt. 126 (Mar. 9, 2021); see also id. 102 (Mot.

for Preliminary Inj.); id. 118 (Opp’n to Mot. for Preliminary Inj.);

9

ARGUMENT

Petitioners filed their petition for a writ of certiorari before judgment on November 24, 2020. Petitioners now ask the Court to treat the petition as a

conventional petition for a writ of certiorari with respect to the court of appeals’ January 22 decision,

which partially affirmed the district court’s December 21 denial of their renewed motion for a preliminary injunction. The State has no objection to that

request under the unusual circumstances presented

here. 6 But there is no persuasive reason for the Court

to grant plenary review in this case at this time.

Petitioners have already obtained the principal relief sought by the petition. Their petition urges the

Court to grant review and hold that they may “access

their Places of Worship to pray.” Pet. 5. The Court’s

February 5 order allowed places of worship to conduct

indoor worship services at up to 25% capacity in Tier 1

counties, the most stringently regulated parts of the

see also Calvary Chapel of Ukiah v. Newsom, D. Ct. No. 20-cv1431-KJM (E.D. Cal.), Dkt. 75 (denying preliminary injunction of

singing restriction).

6 Rule 15 directs that a “brief in opposition should address any

perceived misstatement of fact or law in the petition.” In this

case, the petition for a writ of certiorari before judgment—which

was directed at a district court decision that has since been vacated and that pre-dates the decisions at issue here—contains a

number of misstatements of both fact and law. Respondents will

not catalog those misstatements here; should the Court grant plenary review of the court of appeals’ January 22 decision, the State

would expect to advance arguments on the merits similar to those

presented in its briefing below and the consolidated opposition to

petitioners’ application for an emergency injunction.

10

State. South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021). Since then, the State has

revised its policies in accordance with the Court’s order. Supra pp. 7-8. And the State intends to continue

to allow in-person worship in all counties regardless of

how this Court disposes of the pending petition. 7

While the petition also seeks review of the State’s

percentage capacity limitations and its “ban on singing,” Pet. 34, the Court’s recent order recognized that

the record is too uncertain at present to review those

policies. See South Bay, 141 S. Ct. at 716 (“This order

is without prejudice to the applicants presenting new

evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally

applicable manner.”); id. at 717 (Barret, J., concurring) (similar); id. at 719 n.1 (Gorsuch, J., statement)

(“[N]othing in our order precludes future challenges to

the other disparate occupancy caps applicable to

places of worship, particularly in ‘Tiers’ 2 through 4.”).

Petitioners have just recently initiated proceedings to

7 The State is also subject to this Court’s February 5 order in Har-

vest Rock v. Newsom, No. 20A137, which enjoins the State from

enforcing the prohibition on indoor worship in Tier 1 pending disposition of the appeal and disposition of the petition for a writ of

certiorari, if such writ is timely sought. In that case, the State

filed an answering brief in the court of appeals on February 26

and any reply brief is due March 19. See Harvest Rock v. Newsom, C.A. No. 20-56357, Dkt. 50, 51. In a separate case, a district

court recently enjoined the State from enforcing the prohibition

on indoor worship in Tier 1 pending appeal, citing this Court’s

February 5 order. See Order Granting in Part Emergency Mot.

to Enjoin State and Cty. COVID-19 Restrictions Pending Interlocutory App. at 4, Gateway City Church v. Newsom, et al., D. Ct.

No. 20-cv-8241, Dkt. 75 (N.D. Cal. Feb. 8, 2021).

11

challenge certain remaining aspects of the State’s policies that they oppose. Supra p. 8. 8 There is no reason

for the Court to intervene now.

Nor have petitioners identified any other basis for

the Court to grant further review in this case. To be

sure, aspects of the court of appeals’ decision below

may be in tension with this Court’s February 5 order.

But this Court does not ordinarily grant plenary review to consider “a decision that has been discredited

. . . by reason of intervening decisions.” Shapiro, et al.,

Supreme Court Practice § 4.4(d) (11th ed. 2019). And

that customary reluctance is particularly appropriate

here, given that the State has now changed those portions of its policies that prompted this Court to grant

an injunction pending certiorari. 9

8 The lower courts in this case have not yet addressed the State’s

new 25% capacity restriction in Tier 1 or its new singing policy,

which allows performers to sing, chant, or play wind instruments

during indoor worship services. Supra p. 8 & n.4. The latter

policy addresses any concerns that the State did not previously

permit “a single masked cantor [to] lead worship behind a mask

and a plexiglass shield” or for a “lone muezzin [to] sing the call to

prayer from a remote location inside a mosque as worshippers file

in.” South Bay, 141 S. Ct. at 720 (Gorsuch, J., statement). Other

courts have recently denied injunctive relief with respect to those

policies. See supra n.5.

9 If

the Court deems it necessary and appropriate, the State

would have no objection to the Court vacating the court of appeals’ decision upholding the prohibition on indoor worship. The

Court may also wish to consider holding this case for Fulton v.

City of Philadelphia, No. 19-123, where the Court is considering,

among other things, whether “Employment Division v. Smith

should be revisited.” Pet i, Fulton v. City of Philadelphia, No. 19123 (July 22, 2019).

12

Petitioners originally contended that the Court

should grant review to resolve a conflict among the

lower courts about the level of scrutiny to apply to freeexercise challenges to pandemic restrictions. Pet. i,

22-29. But each of the decisions cited in the petition

pre-dated the Court’s decision in Roman Catholic Diocese, 141 S. Ct. at 63. See Pet. 23-31. Since Roman

Catholic Diocese, no court of appeals has denied a freeexercise challenge on the view that strict scrutiny does

not apply under Jacobson v. Massachusetts, 197 U.S.

11 (1905). Pet. 19, 20, 22. 10

While the district court in this case did not initially

“apply strict scrutiny” (Pet. 29) in its October 15, 2020

order (see Pet. App. A 34a-35a), that decision preceded

Roman Catholic Diocese and was later vacated by the

court of appeals, supra p. 5. The lower courts in this

matter subsequently applied Roman Catholic Diocese

and assessed California’s capacity restrictions on religious gatherings under strict scrutiny. See, e.g., South

Bay, 985 F.3d at 1140; supra pp. 5-6. Going forward,

there is every reason to expect that lower courts will

continue to apply this Court’s guidance in Roman

Catholic Diocese when addressing free-exercise challenges to pandemic-related restrictions and other laws

and policies.

10 See, e.g., Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 632

(2d Cir. 2020) (the challenged “limits on houses of worship are

subject to strict scrutiny”); Monclova Christian Acad. v. ToledoLucas Cty. Health Dep’t, 984 F.3d 477, 482 (6th Cir. 2020) (same);

Cassell v. Snyders, 2021 WL 852227, *4 (7th Cir. Mar. 8, 2021)

(similar); Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d

1228, 1233 (9th Cir. 2020) (same), cert. denied, No. 20-639 (Jan.

25, 2021).

13

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

XAVIER BECERRA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

THOMAS S. PATTERSON

Senior Assistant Attorney General

SAMUEL T. HARBOURT

HELEN H. HONG

Deputy Solicitors General

PAUL E. STEIN

Supervising Deputy

Attorney General

TODD GRABARSKY

LISA J. PLANK

Deputy Attorneys General

March 18, 2021