Application — Harvest Rock Church, Inc., et al., Applicants v. Gavin Newsom, Governor of California
Supreme Court briefJan 26, 2021
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No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
APPENDIX OF EXHIBIT TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
TABLE OF CONTENTS – VOLUME INDEX
Document
Exhibit
Harvest Rock Church v. Newsom, No. 20-56357 (9th Cir. 2020)
Order Denying Motion for Injunction Pending Appeal (Jan. 25, 2021)…………………A
Harvest Rock Church v. Newsom, No. 2:20-cv-6414-JGB-KK
Order Denying Motion for Injunction Pending Appeal (C.D. Cal. Dec. 22, 2020)……..B
Harvest Rock Church v. Newsom, No. 2:20-cv-6414-JGB-KK
Order Denying Motion for Temporary Restraining Order and
Preliminary Injunction (C.D. Cal. Dec. 21, 2020)…………………………………………C
Harvest Rock Church v. Newsom, No. 20A94
GVR Order (U.S. Dec. 3, 2020)……………………………………………………………….D
Harvest Rock Church v. Newsom, No. 20-56357 (9th Cir. 2020)
Order Denying First Motion for Injunction Pending Appeal (Oct. 1, 2020)……………E
Harvest Rock Church v. Newsom, No. 2:20-cv-6414-JGB-KK
Order Denying First Motion for Injunction Pending Appeal
(C.D. Cal. Sept. 16, 2020)……………………………………………………………………...F
Harvest Rock Church v. Newsom, No. 2:20-cv-6414-JGB-KK
Order Denying First Motion for Preliminary Injunction
(C.D. Cal. Sept. 2, 2020)……………………………………………………………………….G
Harvest Rock Church v. Newsom, No. 2:20-cv-6414-JGB-KK
Order Denying First Motion for Temporary Restraining Order
(C.D. Cal. July 20, 2020)………………………………………………………………………H
Verified Complaint and Exhibits……………………………………………………………..I
Joint Statement of Parties on Appeal in First IPA at Ninth Circuit……………………J
First Declaration of Che Ahn Supplementing the Record………………………………..K
Second Declaration of Che Ahn Supplementing the Record……………………………..L
Third Declaration of Che Ahn Supplementing the Record………………………………M
California Essential Workforce Sector Index………………………………………………N
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT A TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case: 20-56357, 01/25/2021, ID: 11979399, DktEntry: 44, Page 1 of 11
FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
JAN 25 2021
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
HARVEST ROCK CHURCH, INC., itself
and on behalf of its member churches in
California; HARVEST INTERNATIONAL
MINISTRY, INC., itself and on behalf of its
member churches in California,
No.
U.S. COURT OF APPEALS
20-56357
D.C. No.
2:20-cv-06414-JGB-KK
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
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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
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Harvest Rock Church, Inc. v. Newsom, No. 20-56357
FILED
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
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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
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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
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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, physicaldistancing, 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
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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 4005
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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
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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
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FILED
Harvest Rock Church v. Newsom, No. 20-56357
Christen, Circuit Judge, concurring
JAN 25 2021
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
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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.
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT B TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414-JGB-KK Document 85 Filed 12/22/20 Page 1 of 1 Page ID #:3001
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
EDCV 20-6414 JGB (KKx)
Date December 22, 2020
Title Harvest Rock Church, Inc., et al. v. Gavin Newsom
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order (1) DENYING Plaintiffs’ Motion for Injunction Pending Appeal
(Dkt. No. 78) (IN CHAMBERS)
For the reasons set forth in the Court’s December 21, 2020 Order, (see Dkt. No. 77,)
Plaintiffs’ Motion for Injunction Pending Appeal (Dkt. No. 78) is DENIED.
IT IS SO ORDERED.
Page 1 of 1
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk MG
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT C TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414-JGB-KK Document 77 Filed 12/21/20 Page 1 of 14 Page ID #:2971
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
EDCV 20-6414 JGB (KKx)
Case No.
Date December 21, 2020
Title Harvest Rock Church, Inc. et al. v. Gavin Newsom
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
(IN CHAMBERS) Order (1) DENYING Plaintiffs’ Emergency Motion
for Temporary Restraining Order (Dkt. No. 58); (2) GRANTING South
Bay United Pentecostal Church’s Motion to File Amicus Brief (Dkt. No.
63); and (3) GRANTING Plaintiffs’ Motion to Exceed Page Limitation
(Dkt. No. 69).
Before the Court are: Plaintiffs’ Emergency Motion for a Temporary Restraining Order
(“Motion,” Dkt. No. 58); a request to file an amicus brief (Dkt. No. 63); and a Motion to Exceed
Page Limitations (Dkt. No. 69). The Court held a telephonic hearing on the Motion on
December 18, 2020. After considering the telephonic hearing along with the papers filed in
support of and in opposition to the matter, the Court DENIES Plaintiffs’ Motion.
I. BACKGROUND
On July 17, 2020, Plaintiffs Harvest Rock Church, Inc., and Harvest Rock International
Ministry, Inc. filed a complaint against Defendant California Governor Gavin Newsom.
(“Complaint,” Dkt. No. 1.) The Complaint alleges six causes of action arising out of Governor
Newsom’s Covid-19 policy: (1) Violation of Free Exercise Clause of First Amendment to U.S.
Constitution; (2) Violation of First Amendment Freedom of Assembly Clause; (3) Violation of
Free Speech Clause of First Amendment to U.S. Constitution; (4) Violation of Establishment
Clause of First Amendment to U.S. Constitution; (5) Violation of Equal Protection Clause of
Fourteenth Amendment to U.S. Constitution; and (6) Violation of the Guarantee Clause of the
U.S. Constitution. (Complaint.)
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On July 18, 2020, Plaintiffs filed a Motion for Temporary Restraining Order and
Preliminary Injunction. (Dkt. No. 4.) On August 12, 2020, the Court held a telephonic hearing
on the Motion for Preliminary Injunction. (Dkt. No. 42.) The Court orally denied the Motion at
the haring and issued a separate written order to the same effect on September 2, 2020. (Dkt.
No. 53.)
On August 21, 2020, Plaintiffs filed for an injunction pending appeal. (Dkt. No. 44.) The
Court denied the injunction pending appeal on September 16, 2020. (Dkt. No. 54.)
On October 1, 2020, the Ninth Circuit held that Plaintiffs had not shown a likelihood of
success on its argument that the Court abused its discretion by declining to grant its requested
injunction. Harvest Rock Church, Inc. v. Newsom, 977 F.3d 728, 730 (9th Cir. 2020) (vacated).
On November 25, 2020, the Supreme Court granted emergency injunctive relief to
petitioners in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 592 U.S. ___ (Nov.
25, 2020), a case concerning the constitutionality of New York State’s Stay-at-Home orders.
On December 3, 2020, in light of its Catholic Diocese opinion, the Supreme Court
vacated this Court’s September 2, 2020 Order. Harvest Rock Church v. Newsom, No. 20A94,
592 U.S. ___ (Dec. 3, 2020). On instruction from the Supreme Court, the Ninth Circuit vacated
its October 1, 2020 order and remanded the case to this Court for further consideration in light of
Catholic Diocese. (Dkt. No. 57.)
The following day, Friday, December 4, 2020, Plaintiffs filed the instant Motion, once
again requesting emergency injunctive relief. (Dkt. No. 58.) The Motion requested “immediate
relief by this Sunday, December 6, 2020.” (Id.) The Court scheduled hearing for Tuesday,
December 8, 2020. (Dkt. No. 60.)
On December 5, 2020, Defendant filed a Notice of Intention to Oppose Plaintiffs’ Motion
and requested additional time to prepare an opposition and record. (Dkt. No. 61.) At the
Tuesday, December 8, 2020 telephonic hearing, the Court granted Defendant’s request for more
time and set an expedited briefing schedule.
Also on December 8, 2020, South Bay United Pentecostal Church and Bishop Arthur
Hodges III filed a motion to file an amicus brief in support of Plaintiffs. (Dkt. No. 63.) The
Court GRANTS this request and considers the proposed amicus curiae brief properly submitted.
(Dkt. No. 63-1.)
On December 14, 2020, Defendant opposed Plaintiffs’ Motion. (“Opposition,” Dkt. No.
66.) Accompanying the Opposition are the following:
-
Declaration of Dr. James Watt (“Watt Declaration,” Dkt. No. 66-1);
Declaration of Dr. George Rutherford (“Rutherford Declaration,” Dkt. No. 66-2);
Declaration of Dr. Michael Stoto (“Stoto Declaration,” Dkt. No. 66-3);
Page 2 of 14
CIVIL MINUTES—GENERAL
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-
Declaration of Todd Grabarsky (“Grabarsky Declaration,” Dkt. No. 67).
On December 16, 2020, Plaintiffs replied. (“Reply,” Dkt. No. 68). Accompanying the
Reply are the following:
-
Preliminary Injunction Opinion in Burfitt v. Newsom (Dkt. No. 68-1);
Third Supplemental Declaration of Che Ahn (Dkt. No 68-2);
Declaration of Daniel J. Schmidt (Dkt. No 68-3).
Also accompanying the Reply is a Motion to Exceed Page Limitations, (Dkt. No. 69,)
which the Court GRANTS.
On December 18, 2020 Defendant filed objections to Plaintiff’s Reply. (Dkt. No. 71.)
The following day, Plaintiffs filed two Notices of Decision: Calvary Chapel Lone Mountain v.
Sisolak, No.20-16274, 2020 WL 7364797 (9th Cir. Dec. 15, 2020) and Midway Venture, LLC v.
Cnty. of San Diego, No. 37-2020-38194-CU-CR-CTl (2020). (Dkt. No. 72.)
On December 18, 2020, the Court held a telephonic hearing with argument from both
Plaintiffs and Defendant.
II. CURRENT RESTRICTIONS
The set of policies governing Covid-19 closures in California exist under the umbrella
designation “Blueprint for a Safer Economy,” (the “Blueprint,”) enacted August 28, 2020.
(Dkt. No. 58-4.) The Blueprint is a framework of risk tiers and sector-specific restrictions,
applied and periodically adjusted county-by-county through the State. (Id.) Counties are
assigned tiers ranging from “Tier 1-Widespread” to “Tier 4-Minimal” based on testing
positivity and “case rate,” defined as rate of new Covid-19 infection per capita, excluding prison
cases, on a seven-day average. (Id.) The Blueprint has changed since its inception, but its overall
framework remains essentially the same. Also specifically governing religious activity in
California is the State’s July 29 Worship Guidance, which prohibits indoor singing and chanting
for places of worship and requires the use of face coverings.1
Tier 1-Widespread restrictions are the most severe.2 In counties designated Tier 1, social
gatherings (predominately but not exclusively secular) are only permitted outdoors and may only
consist of up to three households. (Id.) Shopping centers may operate at a maximum of 25%
capacity but must close common areas and food courts. (Id.) Museums, zoos, movie theaters,
gyms, restaurants, wineries, cardrooms, and family entertainment centers (which include batting
1
Covid-19 Industry Guidance: Places of Worship and Providers of Religious Services and
Cultural Ceremonies, https://files.covid19.ca.gov/pdf/guidance-places-of-worship.pdf (last
accessed December 6, 2020.)
2
Grabarsky Declaration Exh. 7 (Blueprint for a Safer Economy: Activity and Business
Tiers, “Blueprint”).
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cages and mini golf) are permissible outdoors only. (Id.) So too are places of worship. (Id.)
Amusement parks and bars are closed. (Id.) Offices are designated “remote.” (Id.) As of
November 21, 2020, counties in Tier 1-Widespread are also subject to a curfew which directs
people to stop “non-essential” activities between 10 p.m. and 5 a.m. (Grabarsky Declaration
Exh. 11.)
In Tier 2-Substantial, social gatherings are “strongly discouraged” but permitted indoors
and may consist of up to three households. (See Blueprint.) Shopping centers are open and may
operate at a maximum of 50% capacity but must close common areas and reduce the capacity of
food courts. (Id.) Museums, zoos, and aquariums may open at a maximum of 25% capacity. (Id.)
Gyms and fitness centers may open at a maximum of 10% capacity. (Id.) Restaurants, movie
theaters, and places of worship may operate indoors at a maximum of 25% capacity or 100 people,
whichever is fewer. (Id.) Wineries, cardrooms, and family entertainment centers are still
outdoor-only. (Id.) Amusement parks and bars are still closed. (Id.) Offices are still designated
“remote.” (Id.)
In Tier 3-Moderate, social gatherings are “strongly discouraged” but permitted indoors
and may consist of up to three households. (Id.) Shopping centers may open with modifications
but must close common areas and reduce the capacity of food courts. (Id.) Museums, zoos, and
aquariums may open at a maximum of 50% capacity. (Id.) Gyms, cardrooms, and wineries may
open at a maximum of 25% capacity. (Id.) Restaurants, movie theaters, and places of worship
may operate indoors at a maximum of 50% capacity or 200 people, whichever is fewer. (Id.) Bars
may open outdoors only. (Id.) Smaller amusement parks may open at 25% capacity or 500
people, whichever is fewer, for outdoor attractions and with in-county visitors only. (Id.) Offices
may open indoors with modifications but should “encourage telework.” (Id.)
Regardless of tier, California permits “Critical Infrastructure” sectors to remain open
with industry-specific modifications.3 Critical Infrastructure sectors include healthcare,
emergency services, the food and agriculture supply chain, the energy sector, water and
wastewater management, transportation, communications and information technology, critical
manufacturing, financial services, chemical and hazardous materials, defense, and “industrial,
commercial, residential, and sheltering facilities and services,” which includes construction,
plumbing, hardware, property management, laundromats, and homeless shelters. (Id.)
As of December 3, 2020, layered on top of the Blueprint is a “Regional Stay Home
Order,” which goes into effect automatically the day after a region has been announced to have
less than 15% availability in its Hospital Intensive Care Units (ICUs). (Grabarsky Declaration
Exh. 12.) The Regional Stay Home Order prohibits all social gatherings with members of other
households, including outdoor gatherings. (Id.) However, the Regional Stay Home Order
permits outdoor worship consistent with Tier 1. (Id.) As of December 18, 2020, the Regional
3
Essential Critical Infrastructure Workers, https://covid19.ca.gov/essential-workforce/
(last accessed December 6, 2020.)
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Stay Home Order is in effect in all regions but Northern California.4 In Southern California,
where Plaintiffs are based, ICU availability is at 0.0%. (Id.)
III. LEGAL STANDARD
The Court has previously articulated relevant standards for Temporary Restraining
Orders. (See Dkt. Nos. 5, 42, 53.) To repeat:
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an
extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S.
674, 690 (2008) (citations omitted). The elements of a TRO and of a preliminary injunction are
the same. See Rodriguez v. Wolf, 2020 WL 1652541, *2 (C.D. Cal. Feb. 10, 2020.)
IV. DISCUSSION
Roman Catholic Diocese of Brooklyn v. Cuomo5 is a Free Exercise opinion. Accordingly,
Plaintiffs’ Motion mostly requests injunctive relief on Free Exercise grounds. (Motion 6.)
However, Plaintiffs also argue that the Blueprint violates the Establishment Clause. (Id. at 17.)
After this case was remanded, the Ninth Circuit found Nevada’s Covid-19 religious
restrictions unconstitutional in light of Catholic Diocese.6 In their Reply, Plaintiffs quote Dayton
Valley: “The Supreme Court’s recent decision in [Catholic Diocese] arguably represents a
seismic shift in Free Exercise law, and compels the result in this case.” (Reply 1 (quoting 2020
WL 7350247 at *1).)
A. Plaintiffs Remain Unlikely to Succeed on the Merits
1. Free Exercise Clause
The Free Exercise Clause of the First Amendment, incorporated through the Fourteenth
Amendment, prohibits laws “prohibiting the free exercise” of religion. U.S. Const., amend. I.
Claims brought under the Free Exercise Clause first face the threshold inquiry of whether a law
that substantially burdens a plaintiff’s religious exercise is “neutral or generally applicable.”
4
Regional Stay Home Order, https://covid19.ca.gov/stay-home-except-for-essentialneeds/#regional-stay-home-order (last accessed December 18, 2020).
5
Hereafter cited as No. 20A87, 2020 WL 6948354, at *1 (U.S. Nov. 25, 2020).
6
Calvary Chapel Dayton Valley v. Sisolak, No. 20-16169, __ F.3d. ___ (9th Cir. Dec. 15,
2020) (Hereafter cited as Dayton Valley v. Sisolak, 2020 WL 7350247 (9th Cir. Dec. 15, 2020));
see also Calvary Chapel Lone Mountain v. Sisolak, 2020 WL 7364797 (9th Cir. Dec. 15, 2020).
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Employment Div., Dep't of Human Res. of Oregon v. Smith, 494 U.S. 872, 881 (1990). If a law is
neutral and of general applicability, that law “need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a particular religious practice.”
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 52 0, 531 (1993). Absent
neutrality or general applicability, that law faces strict scrutiny, which requires the government to
demonstrate a compelling interest and that its means are narrowly tailored to meet that interest.
508 U.S. at 531-32.
Catholic Diocese did not overrule Smith; it applied it. In Catholic Diocese, the Supreme
Court established that New York State’s Order was: (1) not neutral or generally applicable; (2)
unlikely to survive the merits of a strict scrutiny inquiry. 2020 WL 6948354, at *1. Though the
Ninth Circuit has labeled this a seismic shift, (see 2020 WL 7350247 at *1,) the standard this
Court is bound to apply remains the framework from Smith and Lukumi Babalu. Indeed, though
the Ninth Circuit found that Nevada’s Covid-19 restrictions on houses of worship warranted
strict scrutiny and directed the district court to review its analysis of the directive accordingly, it
did not recognize or articulate a standard for Free Exercise claims distinct from the Smith
framework.
a. California’s Restrictions Do Not Warrant Strict Scrutiny
The law remains that courts must first assess whether a law is “neutral or generally
applicable.” Smith, 494 U.S. at 881. The Court finds that California’s Blueprint is. The
Blueprint offers something the New York and Nevada Orders did not: the ability to legally
congregate in unlimited numbers for worship—so long as that worship occurs outside. In so
doing, the Blueprint treats religious activity better than comparable secular activity and even
better than essential services. This is distinct from both the New York and Nevada restrictions
and compels the conclusion that the Blueprint is neutral.
As the Supreme Court described, the New York Order imposed “very severe
restrictions” on religious services in areas classified as “red” or “orange” zones. 2020 WL
6948354, at *1. In red zones, no more than 10 people were permitted to attend a religious service,
and in orange zones, attendance was capped at 25. Id. The New York Orders made no
exceptions for outdoor religious worship. In holding that the New York Orders were entitled to
strict scrutiny, the Supreme Court noted that New York’s regulations “cannot be viewed as
neutral because they single out houses of worship for especially harsh treatment.” Id. This
harsh treatment occurred in both red and orange zones. In red zones, businesses like
“acupuncture facilities, camp grounds, garages, . . . all plants manufacturing chemicals and
microelectronics and all transportation facilities” could admit as many people as they wished
while religious organizations were numerically capped at 10. Id. at *2. In orange zones, while
religious institutions were strictly capped, even non-essential businesses were empowered to
decide for themselves how many persons to admit. Id. The Court noted that “the maximum
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attendance at a religious service could be tied to the size of the church or synagogue,” and that
almost all of the Diocese churches affected by the Orders could seat over 500 people. Id.7
In Nevada, Governor Sisolak’s Directive prohibited “gatherings in groups of more than
fifty people in any indoor or outdoor areas.” Calvary Chapel Dayton Valley v. Sisolak, 2020 WL
4260438, at *1 (D. Nev. June 11, 2020), rev'd and remanded sub nom. Dayton Valley v. Sisolak,
2020 WL 7350247 (9th Cir. Dec. 15, 2020). The Nevada Directive limited movie theaters and
churches to a maximum of 50 people but allowed casinos to reopen at 50% of their capacity. Id.
As the average capacity of a casino far surpasses 100 people, Nevada’s Directive created an
environment where individuals could gather in large groups to gamble but not to attend a
religious service, regardless of whether that service was inside or outside.
In applying Catholic Diocese to Dayton Valley, the Ninth Circuit noted that “instead of a
fifty-person cap, the Directive could have, for example, imposed a limitation of 50% of fire-code
capacity on houses of worship, like the limitation it imposed on retail stores and restaurants, and
like the limitation the Nevada Gaming Control Board imposed on casinos.” Dayton Valley, 2020
WL 7350247, at *4. Nevada denied churches the ability to be treated like casinos, which is not
neutral, generally applicable regulation.
By contrast to both New York and Nevada, California treats houses of worship like or
more favorably than similar secular institutions—so the Blueprint is not subject to strict scrutiny.
There are no numerical limits on worship in California. Plaintiffs and other religious institutions
located in Tier 1 may gather as many worshippers in person as they please for outdoor services.
The same rules apply to theaters and restaurants. All are limited to outdoor-only service in Tier
1. (Blueprint.) Likewise, in Tier 2, churches, theatres, and restaurants are allowed unlimited
outdoor services and indoor services at a maximum of 25% capacity or 100 people, whichever is
fewer. (Id.) In Tier 3, those entities are allowed unlimited outdoor services and indoor services
at a maximum of 50% capacity or 200 people, whichever is fewer. (Id.) Large amusement parks,
for example Disneyland, are not allowed to open until Tier 4 because of the risk associated with
gathering crowds from many households together. (Id.) Smaller amusement parks may not open
until Tier 3. (Id.) This is the case even though amusement parks are by nature, outdoors.
California also restricts activities and businesses mentioned in Catholic Diocese.
Overnight stays at campgrounds are prohibited in regions with limited Intensive Care Unit (ICU)
capacity. (Grabarsky Declaration Exh. 12.) In such areas, including Southern California, which
has no ICU beds left, all retailers are capped at 20% capacity and must follow strict guidance—
unlike the unlimited gathering permissible in New York stores described by the Supreme Court.
7
The challengers in Catholic Diocese were also entitled to strict scrutiny because of the
strong showing that New York’s restrictions impermissibly discriminated against religious
communities. The Court first noted that statements made in connection with the rules “can be
viewed as targeting the ultra-Orthodox [Jewish] community.” 2020 WL 6948354, at *1 (internal
quotations omitted.) There are no statements indicating religious animus here.
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(Id.) No hotel or lodging entity is permitted to accept out-of-state reservations for non-essential
travel unless the reservation is for an entire quarantine period. (Id.)
The Blueprint and Regional Stay Home Order regulate social gatherings—including
outdoor gatherings—more stringently than they regulate both indoor and outdoor religious
activity. (Id., Blueprint.) Outdoor social gatherings are barred entirely under the Regional Stay
Home Order, and under regular Tier 1, outdoor gatherings of more than three households are
prohibited. (Id.) In other words, in Tier 1 counties, four families may not gather together
outdoors for a picnic, but they may gather together outdoors to attend a religious service. In
Pasadena, two people from separate households cannot gather together outside unless they are
engaged in worship or political expression. (Grabarsky Declaration Exh. 12.) This is not the
especially harsh treatment of New York State,8 or the casino favoritism of Nevada.
b. Even Applying Strict Scrutiny, California’s Restrictions Survive
The Court finds the Blueprint is likely to prevail. Strict scrutiny requires governmental
action to be narrowly tailored to serve a compelling state interest. See Catholic Diocese, 2020
WL 6948354 at *2.
The State has a compelling interest in curbing the spread of what is now the “world’s
deadliest infectious disease.” (See Grabarsky Declaration Exh. 2-3.) This has been
acknowledged by both the Supreme Court and the Ninth Circuit. See Dayton Valley v. Sisolak,
2020 WL 7350247, at *3; Catholic Diocese, 2020 WL 6948354, at *2. Indeed, Covid-19 can
cause severe disease and death in individuals of any age. (Watt Declaration ¶ 22.) Even those
who are asymptomatic or suffer only mild illness may face serious long-term effects. (Id. ¶ 23.)
There is no cure. (Id. ¶ 24.) The virus has killed almost 300,000 Americans, including more
than 20,000 Californians, and despite the miraculous development of a vaccine, this number will
continue to climb in the foreseeable future. (See Grabarsky Declaration Exh. 2-3.) Mass death
will likely be accelerated by public need for healthcare beyond what the hospital system can
bear—Intensive Care Unit (ICU) capacity is currently at less than 3% in Southern California.
(See Watt Declaration ¶ 93; Rutherford Declaration ¶¶ 69-70.) As a consequence, all patients in
need of ICU services, including those who do not have Covid-19, are at risk of not being able to
receive intensive treatments necessary to save their lives. (See Watt Declaration ¶¶ 96-97.) A
compelling interest in averting mass death is clear. Waiting out the pandemic in search of herd
immunity results in substantial preventable death. (See Rutherford Declaration ¶ 89.)
California’s Blueprint is also painstakingly tailored to address the risks of Covid-19
transmission specifically. Again, Covid-19 is spread through airborne transmission from person
to person—infectious droplets are expelled into the air when people with the virus cough, sneeze,
8
Catholic Diocese specifically references South Bay United Pentecostal Church v.
Newsom, 590 U.S. ___ (2020), a case concerning California’s Blueprint, in relevant reasoning.
See, e.g., 2020 WL 6948354, at *7 (Kavanaugh. J., concurring) (explaining New York restrictions
were “much more severe” than California’s).
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speak, sing, or make other noises. (Watt Declaration ¶¶ 27-29.) These droplets can land in the
mouths, noses, or eyes of people who are nearby or be inhaled into those people’s lungs. (Id.)
Droplets may also fall onto objects which others then touch, but this is presently not believed to
be a common source of Covid-19 spread. (Id.) There is broad consensus that people who are not
experiencing symptoms can still spread the Covid-19 virus. (Id. ¶ 30.) This means that even
those who are feeling well may infect others. This scientific knowledge—that the virus spreads
by being carried from an infected person to others through the air, even when the infected person
may not feel ill—is the foundation of all public health guidance about Covid-19. This is why it is
safer for individuals to be farther apart as opposed to closer together. This is why outdoor
gatherings are safer than indoor gatherings in well-ventilated spaces, which are in turn safer than
indoor gatherings in poorly-ventilated spaces. This is the science behind masks, which block
respiratory droplets from being expelled when they are worn properly. This is why singing and
shouting, which expel more viral droplets, are riskier activities than sitting silently.
Viral load also matters. Viral load is the number of viable viral particles per milliliter of
oral or nasal secretions. (Rutherford Declaration ¶ 36.) People with higher viral loads are more
infectious than those with lower viral loads. (Id.) Those with higher viral loads are more likely to
die than those with lower viral loads. (Id. ¶ 35.) To simplify greatly, more of the virus is worse
for people than less of the virus. Illness is not a binary between “Covid present” and “Covid
absent.”
Scientific knowledge about the spread of Covid-19 has led to “broad consensus among
public health professionals” that all of the following measures reduce the spread of coronavirus:
“stay at home orders, physical distancing requirements, physical barriers where distancing is not
possible, prohibiting/limiting high-risk gatherings and other high-risk activities (including singing
and other activities involving increased exhalation force), and universal wearing of face coverings
by all in public places.” (Rutherford Declaration ¶ 51.)
California has tailored its Blueprint restrictions to the specific mechanism of Covid-19
transmission: viral droplets which travel through the air from person to person. Imagining other
possible methods of viral transmission underscores the specificity of California’s response. For
example, if Covid-19 were a sexually transmitted viral disease like HIV/AIDS, State mandates
requiring people to cover their faces would do no good. There would be no sense in attendance
limits on churches or grocery stores. As such, the Blueprint would fail a strict scrutiny analysis if
it were enacted to prevent the spread of HIV. Similarly, if Covid-19 were a bacterial disease
spread through contaminated water like cholera, there would be no reason to prevent people
from singing and chanting. The Blueprint would fail a strict scrutiny analysis if it were enacted to
prevent the spread of cholera.
But the restrictions on houses of worship at the core of this case are narrowly tailored to
prevent the spread of Covid-19. They are precisely focused on the method by which the virus is
transmitted: viral droplets expelled into the air. Of course, California cannot merely prohibit
expelling viral droplets. It must address scenarios likely to make people ill by their transmission.
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California permits unlimited attendance at religious services so long as those services
occur outdoors. Neither New York nor Nevada did so. As outdoor activity is safer than indoor
activity, (see Watt Declaration ¶ 44,) this framework enables people to practice their faith in
large groups in the context in which it may be safe to do so. The increased danger of transmission
posed by on singing and chanting are similarly restricted. There is widespread scientific
consensus that louder and more forceful vocal vocalization, such as singing and chanting,
produces more airborne droplets than normal speech. (Id. ¶ 45.) The more people singing and
chanting, the greater the likelihood that some of those people are infected with Covid-19 and can
infect others. (Id.)
Comparing restrictions on houses of worship to similar secular activities proves their
tailoring. Indoor professional sporting events and concerts can draw crowds many times larger
than the capacity of single movie theater. Under the Blueprint, these events cannot open to live
audiences in any tier, even though they fit in the same “substantive categorization” as theaters.
(Rutherford Declaration ¶ 61.) Restaurants, which also gather people from different households
and thus pose risk, are regulated like indoor worship. (Blueprint.) Tier 1 closes indoor dining
and religious observance alike. Id.
Finally, comparing restrictions on houses of worship to so-called “essential services”
effectively proves tailoring. Plaintiffs place much weight on essential services, noting that even in
Tier 1, “food packaging and processing plants, laundromats, and warehouses are permitted to
operate with no numerical or capacity restrictions.” (Motion 9.) Plaintiffs also cite Judge
O’Scannlain’s observation that in counties where individuals are restricted from indoor worship,
they may still “spend a day shopping in the mall, have their hair styled, get a manicure or
pedicure, attend college classes, produce a television show or movie, participate in professional
sports, wash their clothes at a laundromat, and even work in a meatpacking plant.” (Reply 8
(quoting Harvest Rock Church, Inc. v. Newsom, 977 F.3d 728, 731 (9th Cir. 2020) (O’Scannlain,
J., dissenting))).
First, many of these activities, for both safety and architectural reasons, must occur
inside, making the outdoor access accorded to Plaintiffs and other houses of worship impossible.
It would be incredibly odd for the government to demand all meat-packing warehouses bring their
operations into the Pasadena sunshine to comply with Covid-19 best practices.
More critically, the activities that Plaintiffs identify as receiving more favorable treatment
than indoor worship are safer than indoor worship. Dr. Rutherford, Dr. Watt, and Dr. Stoto each
explain why. (Stoto Declaration ¶¶ 32-34; Rutherford Declaration ¶¶ 91-133; Watt Declaration ¶
46.)
To summarize, indoor worship services “are an especially risky type of public gathering.”
(Watt Declaration ¶ 46.) Indoor services typically involve large groups of people coming
together for the purpose of being together. (Rutherford Declaration ¶ 102.) Religious services
commonly bring together individuals from different households who may know each other,
making them more likely to interact. (Id.) Attendees at indoor worship services typically
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assemble close together in one space, seated in a series of many rows (or pews) that are physically
close together, making close proximity of many individuals highly likely. (Id.) Worship services
typically last a minimum of one hour with congregants gathered in close proximity. (Id. ¶ 103.)
Many services involve “substantial group singing and other group vocalization by those leading
the services and those in the congregation” which “carry with them a potential for increased risk
of transmission of the novel coronavirus.” (Id. ¶ 104.) In many cases, buildings housing indoor
worship services “are older and are not equipped with adequate methods of ventilation or air
conditioning.” (Id. ¶ 105.) Risk in such settings is “reduced but not eliminated where all of the
participants wear face coverings.” (Id. ¶ 106.) Because of these characteristics, there have been
many documented super-spreading incidents involving indoor religious activity. (Id. ¶ 108; Watt
Declaration ¶ 46.)
In contrast, shopping at a grocery or big box store “involves less risk” of Covid-19
transmission than attending an indoor worship service. (Rutherford Declaration ¶ 113.) Grocery
shoppers generally do not get or stay in close proximity to one another, generally intend to “get
in and get out as soon as possible,” and it is unlikely that two shoppers are ever within six feet of
each other for more than 15 minutes, making it less likely that shoppers “receive a sufficient viral
load of droplets or aerosolized particles sufficient to overcome their defenses and cause a COVID
19 infection.” (Id.) Grocery stores are also generally larger in size, of more recent construction,
and better ventilated than houses of worship, and they are “almost always equipped with highfunctioning air-conditioning systems, as is required due to the necessity to preserve perishable
products sold in these stores and the applicable building and health and safety codes.” (Id. ¶
114.) Grocery stores do not commonly invite singing. (Id. ¶ 116.)
Likewise, retail shopping centers, hotels, laundromats, and liquor stores pose a lower risk
of transmission than indoor religious gatherings. “Staying at a hotel, doing laundry at a
laundromat and retail shopping may bring people into relative closeness, but none of these
activities would require them to remain in proximity for longer than a brief interlude.” (Id. ¶
117.) Because viral load matters, standing next to someone infected with Covid-19 for fifteen
minutes is much less dangerous than standing next to someone infected with Covid-19 for one
hour.
Personal care services are distinct for different reasons. Hair and nail salons and other
personal services ordinarily involve much smaller groups of people than worship services. (Id. ¶
120.) And under the Blueprint, workers at such businesses are “subject to numerous specific
hygiene requirements, including requiring the use of face coverings by both workers and
customers/clients, frequent handwashing, frequent cleaning and disinfection and the use of
disposable gloves. Workers that are consistently within six feet of customers or co-workers are
required to wear a secondary barrier (e.g., a face shield or safety goggles) in addition to a face
covering.” (Id.)
Congregate workplace settings such as warehouses, factories, and film production
companies are also distinct. (Id. ¶ 121.) These workspaces are closed systems in which
employers can determine who is allowed “in the bubble.” Warehouses and factories do not
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involve people in close proximity to others for extended periods of time; and they do not typically
involve extended vocalizations. As for film production companies, employment in the
entertainment industry is currently contingent on a negative Covid-19 test result, with
subsequent testing up to three times a week depending on an employee’s position. See COVID19 Return to Work Agreement with DGA, IATSE, SAG-AFTRA and Teamsters/Basic Crafts
(Sept. 21, 2020), at pp. 4–12 (describing testing requirements), available at
https://www.sagaftra.org/files/sa_documents/ReturnToWorkAgreement_wAMPTP.pdf (last
visited December 17, 2020).
If “narrowly tailored” does not mean based on the specific mechanism of Covid-19
infection with sliding levels of restriction based on scientific likelihood of viral spread in any given
scenario, it means nothing. California’s Blueprint regulations track levels of risk that infectious
airborne droplets will enter the eyes, noses, and mouths of previously uninfected individuals, just
as public health experts have advised.
Both the Supreme Court and the Court of Appeals have counseled that judges “are not
public health experts, and we should respect the judgment of those with special expertise and
responsibility in this area.” Dayton Valley, 2020 WL 7350247, at *3 (quoting Catholic Diocese,
2020 WL 6948354, at *3.) This Court agrees. And respecting the judgment of experts means
understanding which activities pose greater or lesser risks and allowing the State to regulate
accordingly. (See, e.g., Stoto Declaration ¶ 34, “Rather than comparing the risks associated with
attending church services and participating in protests, a more appropriate comparison would be
between places of worship and movie theaters, which are treated identically in the Blueprint.
Indeed, because movie viewers sit in one place during the entire performance, do not remove
masks to receive communion, and do not sing or chant, the risk of transmitting the virus to others
is probably lower than in church services.”) The California Blueprint survives strict scrutiny.
2. Establishment Clause
Plaintiffs remain unlikely to succeed on the merits of their Establishment Clause claim.
(Motion 17.) Neither Catholic Diocese nor Dayton Valley addressed the Establishment Clause;
there is no basis to believe the Clause has changed to become salient here.
The Establishment Clause of the First Amendment prohibits laws “respecting an
establishment of religion.” U.S. Const., amend. I. At least for now, in assessing Establishment
Clause claims, courts must examine the purposes and effects of a challenged government action,
as well as any entanglement with religion that it might entail. See Lemon v. Kurtzman, 403 U. S.
602, 612–613 (1971). This analysis has involved challenges ranging from prayer in public schools
to Sunday closing laws to religious monuments on public lands. See Am. Legion v. Am.
Humanist Ass'n, 139 S. Ct. 2067, 2080 (2019) (collecting cases).
However, the “real object” of the Establishment Clause is “to prevent any national
ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the
national government.” Lynch v. Donnelly, 465 U.S. 668, 678 (1984) (quoting 3 Story,
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Commentaries on the Constitution of the United States 728 (1833)). Restrictions on religious
activity which are the same as restrictions on secular activity do not constitute government
establishment—or disavowal—of religion. Even the broadest possible understanding of this
clause does not render the State of California’s Blueprint unconstitutional.
B. Irreparable Harm
Plaintiffs’ harm is distinct from harm faced by challengers in Catholic Diocese. While the
“loss of First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury,” see Elrod v. Burns, 427 U. S. 347, 373 (1976) (plurality opinion),
Plaintiffs here have the ability to gather and worship in person and in unlimited numbers.
If there is unique irreparable harm arising from being made to gather for worship outside
as opposed to inside, (a possibility the Court will not foreclose,) Plaintiffs have not briefed it.
Plaintiffs engage with the Blueprint as they imagine it to be, claiming “every single attendee is
prohibited from attending a worship service,” (Motion 19, (emphasis in original)), as opposed
to engaging with the actual contours of the policy at hand. Even assuming such harm exists, “the
right of free exercise does not relieve an individual of the obligation to comply with a valid and
neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct
that his religion prescribes (or proscribes).” 494 U.S. at 879 (internal quotations omitted).
C. Balance of Equities and the Public Interest
Where the government is the opposing party, balancing of the harm and the public
interest merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Thus, the Court asks whether
any significant “public consequences” would result from issuing the preliminary injunction.
Winter, 555 U.S. at 24.
Plaintiffs argue “the State is in no way harmed by the issuance of an injunction”
preventing enforcement of Blueprint restrictions. (Motion 21 (internal quotations omitted.))
Not so. There is compelling evidence that entering Plaintiffs’ requested injunction would harm
the public interest. Scientific consensus is clear that Covid-19 is transmitted from person to
person through respiratory droplets produced when a person or group of people talk, sing, cough,
or breathe near each other. (Watt Declaration ¶¶ 27-29.) Indoor gatherings are riskier than
outdoor gatherings; big gatherings are riskier than small gatherings; and gatherings which last for
long periods of time are riskier than gatherings which last for short periods of time. (Id.)
If Plaintiffs were to immediately resume numerically uncapped indoor worship, it is likely
that this indoor worship—like any indoor activity involving members of multiple households—
would contribute to the spread of Covid-19, straining already-stressed public health
infrastructure and filling already-packed ICUs.
Page 13 of 14
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk MG
Case 2:20-cv-06414-JGB-KK Document 77 Filed 12/21/20 Page 14 of 14 Page ID #:2984
V. CONCLUSION
Plaintiffs paint a stark picture. They claim that Tier 1 “totally prohibit[s] religious
worship services of any kind and any number.” (Motion 3.) This is not true. The First
Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and
otherwise exercise their religious freedoms. They just may not do so in ways that significantly
increase the likelihood of transmission of a virus which has claimed more than three hundred
thousand American lives in less than one year. The Constitution is not a suicide pact.9 The First
Amendment may not be used to make it one.
Plaintiffs’ Emergency Motion for Temporary Restraining Order (Dkt. No. 58) is
DENIED.
IT IS SO ORDERED.
9
See Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (dissenting opinion).
Page 14 of 14
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk MG
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT D TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
(ORDER LIST:
592 U.S.)
THURSDAY, DECEMBER 3, 2020
ORDER IN PENDING CASE
20A94
HARVEST ROCK CHURCH, ET AL. V. NEWSOM, GOV. OF CA
The application for injunctive relief, presented to Justice
Kagan and by her referred to the Court, is treated as a petition for
a writ of certiorari before judgment, and the petition is granted.
The September 2 order of the United States District Court for the
Central District of California is vacated, and the case is remanded
to the United States Court of Appeals for the Ninth Circuit with
instructions to remand to the District Court for further
consideration in light of Roman Catholic Diocese of Brooklyn v.
Cuomo, 592 U. S. ___ (2020).
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT E TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case: 20-55907, 10/01/2020, ID: 11843942, DktEntry: 26, Page 1 of 19
FILED
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
OCT 1 2020
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT
HARVEST ROCK CHURCH, INC., itself
and on behalf of its member churches in
California; HARVEST INTERNATIONAL
MINISTRY, INC., itself and on behalf of its
member churches in California,
No.
U.S. COURT OF APPEALS
20-55907
D.C. No.
2:20-cv-06414-JGB-KK
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.
Dissent by Judge O’SCANNLAIN.
Harvest Rock Church, Inc., and Harvest International Ministry, Inc.,
(Harvest Rock) challenge the constitutionality of California Governor Gavin
Newsom’s COVID-19 Executive Orders and related restrictions (Orders) as they
apply to in-person worship services. The district court denied Harvest Rock’s
request for a preliminary injunction barring enforcement of the Orders as to its inperson worship services. Harvest Rock appealed and has filed an emergency
motion asking this court to enjoin enforcement of the Orders pending appeal.
Case: 20-55907, 10/01/2020, ID: 11843942, DktEntry: 26, Page 2 of 19
In order to demonstrate that an injunction pending appeal is warranted,
Harvest Rock must show that it is likely to succeed on the merits, that it is likely to
suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in its favor, and that an injunction is in the public interest. See Winter
v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Feldman v. Ariz.
Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for
evaluating an injunction pending appeal is similar to that employed by district
courts in deciding whether to grant a preliminary injunction.”). As to a likelihood
of success on the merits, Harvest Rock must demonstrate that it is likely this court
will conclude the district court abused its discretion in denying the preliminary
injunction. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1436 (9th Cir. 1983) (abuse
of discretion standard governs an appeal from the denial of a preliminary
injunction). Our review of the denial of a preliminary injunction is “limited and
deferential.” Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914,
918 (9th Cir. 2003) (en banc). We consider “only the temporal rights of the parties
until the district court renders judgment on the merits of the case based on a fully
developed record.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d
782, 793 (9th Cir. 2005) (citation omitted).
2
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We find that Harvest Rock has not shown a likelihood of success on its
argument that the district court abused its discretion by declining to enjoin the
Orders. The evidence that was before the district court does not support Harvest
Rock’s arguments that the Orders accord comparable secular activity more
favorable treatment than religious activity. The Orders apply the same restrictions
to worship services as they do to other indoor congregate events, such as lectures
and movie theaters. Some congregate activities are completely prohibited in every
county, such as attending concerts and spectating sporting events. The dissent
states that the restrictions applicable to places of worship ‘do not apply broadly to
all activities that might appear to be conducted in a manner similar to religious
services,’ but does not provide support for this point. By our read the restrictions
on theaters and higher education are virtually identical.
Harvest Rock also contends that the Governor failed to provide a rationale
for the more lenient treatment of certain secular activities, such as shopping in a
large store. However, the Governor offered the declaration of an expert, Dr. James
Watt, in support of the claim that the risk of COVID-19 is elevated in indoor
congregate activities, including in-person worship services. Harvest Rock did not
offer a competing expert or any other evidence to rebut Dr. Watt’s opinion that
congregate events like worship services are particularly risky. Because the district
court based its order on the only evidence in the record as to the risk of spreading
3
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COVID-19 in different settings, Harvest Rock is unlikely to show that the district
court abused its discretion.
We also conclude that Harvest Rock failed to demonstrate that an injunction
pending appeal is in the public interest. The Supreme Court considered and
declined a similar request to enjoin application of California’s Orders as to worship
services in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1614 (2020) (Roberts, C.J., concurring) (deference to state officials is “especially”
warranted where “a party seeks emergency relief in an interlocutory posture, while
local officials are actively shaping their response to changing facts on the
ground.”). Harvest Rock has not shown that the restrictions at issue in this appeal
are materially different than those presented in South Bay United Pentecostal, and
though we are not bound by it, we are persuaded by the Supreme Court’s
conclusion that injunctive relief is not warranted. See United States v. Montero–
Camargo, 208 F.3d 1122, 1132 n. 17 (2000) (en banc) (non-binding Supreme
Court dicta is accorded “appropriate deference” (citation omitted)).
For these reasons, the emergency motion for an injunction pending appeal
(Docket Entry No. 6) is denied.
We grant the motion to file the amicus brief in support of the Governor for
purposes of this emergency motion (Docket Entry No. 9).
4
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Harvest Rock Church, Inc. v. Newsom, No. 20-55907
FILED
OCT 1 2020
O’SCANNLAIN, J., dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
At present, in 18 counties in California—home to more than 15 million
residents and including its most populous county, Los Angeles—indoor religious
worship services are completely prohibited. 1 California insists that this drastic
measure is necessary to fight the ongoing global COVID-19 pandemic—a worthy
and indeed compelling goal of any State. Yet, in these same counties, the State
still allows people to go indoors to: spend a day shopping in the mall, have their
hair styled, get a manicure or pedicure, attend college classes, produce a television
show or movie, participate in professional sports, wash their clothes at a
laundromat, and even work in a meatpacking plant.
The Constitution allows a State to impose certain calculated, neutral
restrictions—even against churches and religious believers—necessary to combat
emergent threats to public health. But the Constitution, emphatically, does not
allow a State to pursue such measures against religious practices more aggressively
1
See Cal. Dep’t Pub. Health, Blueprint Data Chart (Sept. 29, 2020),
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20
Library/COVID-19/Blueprint_Data_Chart_092920.xlsx; State of California,
Covid-19 Blueprint Activity and Business Tiers 1 (last updated Sept. 28, 2020),
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/
COVID-19/Dimmer-Framework-September_2020.pdf.
Attendance at in-person religious worship services is allowed but tightly
capped in California’s remaining counties, as explained below. See infra Part II.A.
1
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than it does against comparable secular activities. See Calvary Chapel Dayton
Valley v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (mem.) (Alito, J., dissenting);
South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1615 (2020)
(mem.) (Kavanaugh, J., dissenting). Because California’s present coronavirusrelated initiatives do exactly that, I respectfully dissent from the majority’s
decision not to enjoin them pending Harvest Rock Church’s appeal in this case.
I
I first clarify a point that is somewhat obscured by the majority’s decision:
we are neither bound nor meaningfully guided by the Supreme Court’s decision to
deny a writ of injunction against California’s restrictions on religious worship
services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at
1613. That decision, which considered a challenge to an earlier and much different
iteration of California’s restrictions, was unaccompanied by any opinion of the
Court and thus is precedential only as to “the precise issues presented and
necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per
curiam). In that case, the Supreme Court considered whether to issue a writ of
injunction under the All Writs Act, 28 U.S.C. § 1651(a), a more demanding
standard than that which applies to the motion for an injunction pending appeal
here. Compare Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401, 1403 (2012)
(Sotomayor, J., as Circuit Justice) (discussing the standard for issuing a writ of
2
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injunction, which is an “extraordinary” measure to be “used sparingly” and “only
when it is necessary or appropriate in aid of our jurisdiction and the legal rights at
issue are indisputably clear” (alterations and internal quotation marks omitted)),
with Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d
1097, 1100 (9th Cir. 2006) (“In deciding whether to grant an injunction pending
appeal, the court balances the plaintiff’s likelihood of success against the relative
hardship to the parties.” (internal quotation marks omitted)). Without any opinion
of the Court, we have no guidance whatsoever—not even in the form of “dicta” as
the majority suggests, Maj. at 4—as to why the Court declined to provide such an
extraordinary remedy, and we certainly have no basis to infer that a majority of the
Court agreed upon some unstated rationale that somehow applies equally here.2
Cf. Makekau v. Hawaii, 943 F.3d 1200, 1205 (9th Cir. 2019) (“[T]he mere fact that
the injunction order issued under the All Writs Act does not prove that the
Supreme Court . . . addressed the merits [of the underlying claim].”).
II
Turning to the motion before us, I respectfully disagree with the majority’s
conclusion that Harvest Rock Church is unlikely to succeed on the merits of its
2
This is true even if one agrees—and to be clear, I do not agree—with the
majority’s assertion that Harvest Rock Church “has not shown that the restrictions
at issue in this appeal are materially different than those presented in South Bay
United Pentecostal.” Maj. at 4.
3
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free exercise challenge to California’s severe restrictions on religious worship in
the State.
There is no doubt that California’s COVID-19 scheme (described more fully
below) imposes direct and severe burdens on religious practice within the State.
And where a State imposes such burdens through measures that are not “neutral
and of general applicability,” its actions must survive strict scrutiny. Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). “The
Free Exercise Clause bars even subtle departures from neutrality on matters of
religion.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct.
1719, 1731 (2018) (internal quotation marks omitted). Because California’s
COVID-19 regulations patently disfavor religious practice when compared to
analogous secular activities, I believe that the church is quite likely indeed to
succeed on the merits of its challenge to such regulations.
A
First, California’s complex morass of COVID-related restrictions fails even
the “minimum requirement of neutrality”: such restrictions discriminate against
religious practice “on [their] face.” Lukumi, 508 U.S. at 533.
Contrary to how California would portray its scheme, at this point there is no
“neutral” or “generally applicable” State policy that one can apply to determine
whether or to what extent any particular activity is permissible. Instead, California
4
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has announced a variegated and ever-changing “Blueprint for a Safer Economy,”
which regulates all manner of in-person activities by meticulously delineating
those activities which may take place. See State of California, Blueprint for a
Safer Economy (last updated Oct. 1, 2020), https://covid19.ca.gov/safer-economy
[hereinafter “Cal. Blueprint”]. Despite its deceptively cohesive title, this
“Blueprint” is in reality an amalgamation of dozens of independent restrictions and
“guidance” documents, each of which pertains only to a specific category of
activity within the State. There are, at this point, independent restrictions targeted
to nearly forty categories of activity (many of them further subdivided into more
categories), including retail shopping outlets, grocery stores, offices, fitness
centers, places of higher education, schools, barbershops, warehouses, food
packing facilities, film and television studios, family entertainment centers,
museums, professional sports facilities, and “places of worship.” See State of
California, COVID-19 Industry Guidance (last updated Sept. 29, 2020),
https://covid19.ca.gov/industry-guidance [hereinafter “Industry Guidance”].
Under this patchwork scheme, it is the State’s substantive categorization of an
activity that determines its level of regulation, not any “neutral” or “generally
applicable” feature of that activity itself.
Relevant here, the restrictions prescribed for “places of worship” limit
attendance at in-person worship services as follows: (1) at the most severe, in
5
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counties designated to be “Tier 1” risks for COVID-19 spread,3 no in-person
worship services may be held; (2) in Tier 2 counties, worship services may be held
with no more than 25% of a building’s capacity or 100 persons in attendance,
whichever is fewer; (3) in Tier 3 counties, worship services can be held with no
more than 50% of a building’s capacity or 200 persons in attendance, whichever is
fewer; and, finally, (4) in Tier 4 counties, worship services can be held with no
more than 50% of a building’s capacity, with no additional cap on attendance.
State of California, Covid-19 Blueprint Activity and Business Tiers 1 (last updated
Sept. 28, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/
CDPH%20Document%20Library/COVID-19/Dimmer-FrameworkSeptember_2020.pdf [hereinafter “Blueprint Tiers”]. Critically, these same
parameters do not apply broadly to all activities that might appear to be conducted
in a manner similar to religious services—for example, educational events,
meetings, or seminars. Instead, each of these (and many other potentially similar)
activities is regulated entirely separately from, and often more leniently than,
religious services. See Industry Guidance, supra (providing restrictions separately
governing institutes of higher education, museums, theaters, and schools); see also,
3
The State assigns each county to one of four tiers based on the recently
documented number of COVID-19 cases in the county. The assignments are
regularly reviewed and, as infection numbers change, a county may be moved up
or down the State’s tiers. See Cal. Blueprint, supra.
6
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e.g., State of California, COVID-19 Essential Workforce (last updated Sept. 22,
2020), https://covid19.ca.gov/essential-workforce [hereinafter “Essential
Workforce”] (designating as “essential workforce”—and therefore exempt from
other COVID-19 restrictions—“academies and training facilities and courses for
the purposes of graduating students and cadets that comprise the essential
workforce for all identified critical sectors”). Indeed, even non-worship activities
conducted by or within a place of worship are not subject to the attendance
parameters outlined above. See Cal. Dep’t of Pub. Health, COVID-19 Industry
Guidance: Places of Worship and Providers of Religious Services and Cultural
Ceremonies 3 (July 29, 2020) [hereinafter “Places of Worship Guidance”].
In sum, the restrictions on religious worship services that Harvest Rock
Church challenges here apply because—and only because—the activities they wish
the host and partake in have been identified, substantively, as “religious” or
“worship” services.
B
California contends that the many idiosyncratic lines it has drawn between
activities within the State are not actually tied to the substantive content of those
activities but instead reflect the State’s expert judgment regarding the risk that each
activity presents of spreading COVID-19. The majority accepts the State’s
characterization, insisting that “the Governor offered the declaration of an
7
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expert . . . in support of the claim that the risk of COVID-19 is elevated in indoor
congregate activities, including in-person worship services.” Maj. at 3. The
problem, however, is that the very features that California’s expert identified as
especially dangerous in religious worship appear to have been ignored by the State
in its decision to allow numerous other activities to occur, even though they selfevidently exhibit the same features.
California’s epidemiological expert, Dr. James Watt, declared that the State
determined church attendance to be particularly risky because: (1) gatherings of
“people from different households” increase the risk of spreading the virus; (2)
there have been “multiple reports” of COVID-19 spread resulting from religious
events; (3) the virus is more likely to spread “when people are in close contact or
proximity with one another (within about six feet)”; (4) the risk of transmission
increases in groups where people speak, chant, shout, and sing in close proximity
indoors; and (5) gatherings with “longer duration” increase the opportunity for the
virus to spread. In his declaration, Dr. Watt distinguished the threat posed by
religious services from the supposedly lesser threat posed by shopping in a store or
working in an office where, according to him (but with no evidence or expertise in
support),4 interpersonal encounters are much briefer or more easily regulated.
4
At oral argument on this motion, counsel for the State conceded that Dr.
Watt is not qualified as an expert to opine on what takes place at religious worship
services or how people interact there as opposed to in other settings of public life.
8
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1
The first flaw in the majority’s uncritical acceptance of this “evidence”
supporting California’s severe restrictions on church attendance is that the bulk of
the identified risk factors have already been addressed by other measures imposed
by the State. In those counties where indoor worship is actually allowed to take
place, congregants must observe six-foot distancing, must wear masks, and may
not sing or chant. See generally Places of Worship Guidance, supra. With such
measures in place, Dr. Watt’s professed concerns about physical proximity and
vocal projections fall flat. How would the State distinguish a physically distanced,
masked, and silent congregation sitting in a church from any other setting where
the same number of people are present under the same roof for any other purpose?
We do not know the answer, and I question whether the State could supply one that
is neutral as to the practice of religion.
2
More centrally, even if we were to accept Dr. Watt’s assertion that the State
has reason to find religious services more dangerous than activities like shopping
or working in an office, the glaring problem for the State is that it has offered no
evidence to support the notion that the myriad other activities which are less
restricted than religious services are somehow safer by these same parameters.
The State more freely allows an abundance activities to take place which, on their
9
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face, share the same risk factors that Dr. Watt identified as so concerning about
church attendance, including: having one’s hair cut and styled at a salon;5 getting a
manicure or pedicure; 6 working in a warehouse, food-production facility, or
meatpacking plant; 7 playing, coaching, or broadcasting professional sports
(including participating in games, practices, workouts, film sessions, and large
team meetings); 8 attending college classes;9 filming a television show or movie;10
5
Barbershops and hair salons may open in all counties, without limitations
on the number of people who may be present. See Blueprint Tiers, supra, at 1.
6
As of September 22, 2020, nail salons may open in all counties, without
limitations on the number of people who may be present. See Blueprint Tiers,
supra, at 2.
7
All of these facilities have been designated as “essential critical
infrastructure,” and they may operate in all counties, without limitations on the
number of people who may be present. See Blueprint Tiers, supra, at 1; Essential
Workforce, supra.
8
In all counties, professional sports may take place without restrictions on
the number of people present (but with no fans in attendance). See Blueprint Tiers,
supra, at 5; Industry Guidance, supra.
9
In all counties at least some courses, like laboratory sciences and studio
arts, may be conducted indoors, without limitations on the number of people
present. See Industry Guidance, supra.
10
California has deemed “entertainment industries, studios, and other related
establishments” to be “essential critical infrastructure,” and such businesses may
open in all counties, without restriction on the number of people in attendance. See
Blueprint Tiers, supra, at 1; Essential Workforce, supra.
10
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exercising at the gym; 11 or washing clothes at a laundromat.12 All of these
activities involve gatherings of people from different households for extended
periods of time—in many cases, hours on end. Many are carried out in close
proximity with others including some—like playing sports, receiving a haircut,
getting a manicure, or acting out a scene in a movie—that simply cannot be
undertaken while also practicing six-foot social distancing and wearing a mask.
Some involve speaking loudly or shouting—for example, on an indoor television
studio set filled with actors projecting lines and directors barking orders or in an
indoor practice facility or locker room filled with dozens of professional athletes
and coaches shouting instructions to each other—which (unlike singing in a
church) the State has permitted to continue. And some have been widely reported
to have resulted in significant outbreaks across the country, a fact the State itself
acknowledges. See Cal. Dep’t of Health, COVID-19 Industry Guidance: Food
Packing and Processing 1 (July 29, 2020) (“There have been multiple outbreaks in
a range of workplaces, [including at] hospitals, long-term care facilities, prisons,
11
Although fitness centers must close in Tier 1 counties, at Tiers 2, 3, and 4
they may open at 10%, 25%, and finally 50% capacity respectively, with no
additional cap on attendance like that imposed on churches. See Blueprint Tiers,
supra, at 3. Thus, in a Tier 2 or 3 county, a fitness center with a capacity greater
than 1,000 people would be allowed to admit more people than would a church of
the same size.
12
Laundromats are designated as “essential critical infrastructure” and may
open in all counties, without limitations on the number of people who may be
present See Blueprint Tiers, supra, at 1; Essential Workforce, supra.
11
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food production, warehouses, meat processing plants, and grocery stores.”); see
also, e.g., Anna Stewart, et al., Why Meat Processing Plants Have Become
COVID-19 Hotbeds, CNN Health (June 27, 2020), https://www.cnn.com/
2020/06/27/health/meat-processing-plants-coronavirus-intl/index.html; Brady
Dennis & Chelsea Janes, Coronavirus Outbreak in Major League Baseball Casts
Pall Over Other Reopenings, Washington Post (July 28, 2020),
https://www.washingtonpost.com/health/2020/07/28/coronavirus-outbreaksbaseball-schools. Yet, despite sharing these supposedly critical features of church
attendance, these activities are all more open and available to Californians. If the
reason is based in some other neutral assessment of disease spread, it has not been
provided to us in this case.
3
The majority makes much of the fact that, at this point, the State has
imposed the same attendance restrictions on some secular “congregate” activities
such as attending some academic lectures or going to see a movie in a theater.
Maj. at 3. But the majority cannot dispute that not all such activities are so tightly
restricted—such as participating in a college class in a laboratory or studio setting
or attending a team meeting or film-review session in the auditorium of a
professional sports facility. More to the point, even if it is true that the State has
similarly regulated some congregate activities with analogous risks of disease
12
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spread, that does not end our inquiry. Indeed, “it does not suffice to point out that
some [comparable] secular businesses . . . are subject to the [same restrictions],” if
the State cannot also explain why so many other comparable secular businesses
have been treated more favorably. Calvary Chapel Dayton Valley, 140 S. Ct. at
2613–14 (Alito, J., dissenting); see also id. at 2614 (“The legal question is not
whether religious worship services are all alone in a disfavored category, but why
they are in the disfavored category to begin with.” (citing Emp’t Div., Dep’t of
Human Res. of Or. v. Smith, 494 U.S. 872, 884 (1990))). Thus, the State cannot
evade the Free Exercise Clause merely by linking its severe restrictions on worship
attendance to those imposed on one or two categories of comparable secular
activity; it must also justify its decision to treat more favorably a host of other
comparable activities which so evidently raise the State’s same expressed concerns
about disease spread.
C
Finally, we cannot overlook the fact that the State’s restrictions on houses of
worship explicitly exempt on-site non-religious activities from the strict attendance
restraints. California’s guidelines for places of worship warn of the supposed
danger in individuals coming together specifically “to practice a personal faith,”
and they make clear that the restrictions on places of worship do not apply to nonworship activities including “food preparation and service, delivery of items to
13
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those in need, childcare and daycare services, school and educational activities, inhome caregiving, counseling, office work, and other activities that places and
organizations of worship may provide.” Places of Worship Guidance, supra, at 3.
Thus, California’s framework would plainly permit a church in a Tier 1 county to
host a group of people for some non-religious purpose, but the same church would
be prohibited from hosting an event for the same people in the same setting for the
same length of time simply if it were for purposes of religious worship. It is
difficult to conceive of a more obvious form of discrimination against religious
activity than that.
III
Because Harvest Rock Church is likely to succeed on the merits of its freeexercise challenge, it follows that the balance of hardships also tips in its favor.
Without an injunction, the church and its congregants will be prohibited from
exercising their First Amendment freedoms—the loss of which, “for even minimal
periods of time, unquestionably constitutes irreparable injury.” In re Dan Farr
Prods., 874 F.3d 590, 597 (9th Cir. 2017) (per curiam) (internal quotation marks
omitted). And, while California has a compelling interest in limiting the spread of
a deadly disease, the State is not harmed by pursuing that interest—as the
Constitution requires—equally against religious and non-religious activities alike.
See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir. 2011)
14
Case: 20-55907, 10/01/2020, ID: 11843942, DktEntry: 26, Page 19 of 19
(“Maryland is in no way harmed by issuance of an injunction that prevents the
state from enforcing unconstitutional restrictions.”).
I respectfully dissent from the majority’s decision to deny Harvest Rock
Church’s motion for an injunction pending appeal.
15
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT F TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414-JGB-KK Document 54 Filed 09/16/20 Page 1 of 2 Page ID #:730
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
Title
CV 20-6414-JGB(KKx)
Date September 16, 2020
Harvest Rock Church, Inc. et al. v. Gavin Newsom
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order (1) DENYING Plaintiffs’ Motion for Injunction Pending Appeal (Dkt.
No. 44); and (2) VACATING the September 21, 2020 Hearing (IN
CHAMBERS)
Before the Court is a Motion for Injunction Pending Appeal filed by Plaintiffs Harvest
International Ministry, Inc. and Harvest Rock Church, Inc. (“Motion,” Dkt. No. 44.) The Court
finds the Motion appropriate for resolution without a hearing. See Fed. R. Civ. P. 78; L.R. 7-15.
After considering the papers filed in support of and in opposition to the Motion, the Court
DENIES the Motion. The Court vacates the hearing set for September 21, 2020.
I. BACKGROUND
Plaintiffs challenge the constitutionality of orders issued by Governor Newsom to slow
the spread of COVID-19. On August 12, 2020, the Court orally denied Plaintiffs’ Motion for a
Preliminary Injunction, (Dkt. No. 4,) during a telephonic hearing. (Dkt. No. 42). On September
2, 2020, the Court issued a written order to the same effect. (Dkt. No. 52.) Plaintiffs appealed
the denial to the Ninth Circuit. (“Notice of Appeal,” Dkt. No. 50).
Plaintiffs filed this Motion for an Injunction Pending Appeal on August 21, 2020. (Dkt.
No. 44.) Concurrently, they filed a declaration of Pastor Che Ahn to supplement the record and
authenticate a letter received by Harvest Rock Church on August 18, 2020, which was also
submitted as new evidence. (Dkt. No. 45.) On August 24, 2020, Governor Newsom filed
objections to the new evidence submitted by Plaintiffs. (Dkt. No. 46.) Concurrently, Governor
Page 1 of 2
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Newsom filed a stipulation extending the time to file a responsive pleading. (Dkt. No. 47.) The
Court granted the Governor’s stipulation, extending the Governor’s time to file a responsive
pleading to 21 days after the Ninth Circuit’s ruling on this Court’s denial of Plaintiffs’ preliminary
injunction motion. (Dkt. No. 49.)
II.
DISCUSSION
As the Court indicated during the August 12, 2020 telephonic hearing, Plaintiffs’ injunction
pending appeal is denied. The relevant facts are the same as they were on August 12. The law,
too, is the same. The Order denying Plaintiffs’ Motion for a Preliminary Injunction, (Dkt. No.
53,) applies here too.
The Court does not consider Plaintiffs’ new evidence.
III.
CONCLUSION
For the reasons above, the Court DENIES Plaintiffs’ Motion. The September 21, 2020
hearing is VACATED.
IT IS SO ORDERED.
Page 2 of 2
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk NP
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT G TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414-JGB-KK Document 53 Filed 09/02/20 Page 1 of 5 Page ID #:725
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES—GENERAL
Case No.
LACV 20-6414 JGB (KKx)
Date September 2, 2020
Title Harvest Rock Church, Inc., et al. v. Gavin Newsom
Present: The Honorable
JESUS G. BERNAL, UNITED STATES DISTRICT JUDGE
MAYNOR GALVEZ
Not Reported
Deputy Clerk
Court Reporter
Attorney(s) Present for Plaintiff(s):
Attorney(s) Present for Defendant(s):
None Present
None Present
Proceedings:
Order DENYING Plaintiffs’ Motion for Preliminary Injunction (Dkt.
No. 4)
Before the Court is a Motion for Preliminary Injunction filed by Plaintiffs Harvest
International Ministry, Inc. and Harvest Rock Church, Inc. (“Motion,” Dkt. No. 4.) The Court
held a telephonic hearing on the Motion on August 12, 2020. After considering the papers filed
in support of and in opposition to the Motion, the Court DENIES the Motion.
I. BACKGROUND
On July 17, 2020, Plaintiffs filed their complaint against Defendant California Governor
Gavin Newsom. (“Complaint,” Dkt. No. 1.) The Complaint alleges six causes of action: (1)
Violation of Free Exercise Clause of First Amendment to U.S. Constitution; (2) Violation of
First Amendment Freedom of Assembly Clause; (3) Violation of Free Speech Clause of First
Amendment to U.S. Constitution; (4) Violation of Establishment Clause of First Amendment to
U.S. Constitution; (5) Violation of Equal Protection Clause of Fourteenth Amendment to U.S.
Constitution; and (6) Violation of the Guarantee Clause of the U.S. Constitution.
On July 18, 2020, Plaintiffs filed a Motion for Temporary Restraining Order and
Preliminary Injunction. (“Motion,” Dkt. No. 4.) Defendant opposed the Motion on August 3,
2020. (“Opposition,” Dkt. No. 31.) In support of the Opposition, Defendant filed the
Declaration of Seth Goldstein and the Declaration of James Watt, M.D. (“Goldstein
Page 1 of 5
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Case 2:20-cv-06414-JGB-KK Document 53 Filed 09/02/20 Page 2 of 5 Page ID #:726
Declaration,” Dkt. No. 31-1; “Watt Declaration,” Dkt. No. 31-2.) Plaintiffs replied in support of
the Motion on August 7, 2020.1 (“Reply,” Dkt. No. 37.)
II.
LEGAL STANDARD
“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on
the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “A preliminary injunction is an
extraordinary and drastic remedy; it is never awarded as of right.” Munaf v. Geren, 553 U.S.
674, 690 (2008) (citations omitted). An injunction is binding only on parties to the action, their
officers, agents, servants, employees and attorneys and those “in active concert or participation”
with them. Fed. R. Civ. P. 65(d).
Under the Ninth Circuit’s “sliding scale” approach to preliminary injunctions, the four
“elements of the preliminary injunction test are balanced, so that a stronger showing of one
element may offset a weaker showing of another.” All for The Wild Rockies v. Cottrell, 632 F.3d
1127, 1131 (9th Cir. 2011). Thus, “a preliminary injunction could issue where the likelihood of
success is such that serious questions going to the merits were raised and the balance of hardships
tips sharply in [plaintiff’s] favor.’” Id. at 1131–32 (internal quotation omitted). Put differently,
“‘serious questions going to the merits’ and a hardship balance that tips sharply toward the
plaintiff can support issuance of an injunction, assuming the other two elements [likelihood of
irreparable injury and public interest] of the Winter test are also met.” Id. at 1132. Regardless of
the strength of its showings on the other factors, a plaintiff may not obtain a preliminary
injunction unless he or she establishes that irreparable harm is likely to result in the absence of
the requested injunction. Id. at 1135.
III. DISCUSSION
COVID-19 has killed over 10,000 California residents and infected more than half a
million.2 The disease spreads via respiratory droplets and—without a known vaccine or cure—
the best way to slow COVID-19’s spread is through social distancing measures. (Watt
Declaration ¶ 16.)
To slow the spread of COVID-19, the Governor has issued a series of orders (“Orders”)
restricting certain activities and mandating distancing and hygiene protocols for others. As the
pandemic has evolved, so too has the scope of the Orders. (Complaint, Exhibits A–M.) The
Orders currently ban indoor religious services in counties that have been on a watchlist for three
consecutive days or more. (Complaint, Exhibit M.) Outdoor services can take place without
1
Plaintiffs moved for an extension to the 12-page limit for reply briefs. (“Reply
Request,” Dkt. No. 38.) The Reply Request is unopposed. The Court GRANTS the Reply
Request and accepts the Reply as filed.
2
https://covid19.ca.gov/ (last accessed August 12, 2020).
Page 2 of 5
CIVIL MINUTES—GENERAL
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restriction on the number of attendees. (Id.) Plaintiffs seek to enjoin enforcement of the Orders’
ban on indoor religious services, arguing that the ban violates the Free Exercise, Establishment
and Free Speech Clauses of the First Amendment. (See Motion.)
A. Free Exercise
The Orders restrict indoor religious services. (Complaint, Exhibit M.) They also restrict
“comparable secular gatherings, including lectures, concerts, movie showings, spectator sports,
and theatrical performances.” South Bay United Pentecostal Church v. Newsom, 140 S. Ct.
1613, 1613-14 (2020) (Roberts, C.J., concurring); see also Elim Romanian Pentecostal Church v.
Pritzker, 962 F.3d 341, 346 (7th Cir. 2020); (“[Worship services] seem most like other
congregate functions that occur in auditoriums, such as concerts and movies. Any of these indoor
activities puts members of multiple families close to one another for extended periods, while
invisible droplets containing the virus may linger in the air.”) Because religious activities are
only restricted similarly to or less than comparable non-religious activities, the Orders are neutral
on their face and in application. See Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1079 (9th Cir.
2015) (holding that a law is only fatally underinclusive if it prohibits religious conduct but not
“comparable secular conduct”).
Plaintiffs argue that the Orders are not neutral in application because they restrict indoor
religious services but not outdoor protests. (Reply at 1.) But because indoor activities carry a
much greater risk of COVID-19 spread, indoor religious services are not comparable to outdoor
protests. Accordingly, how the Orders treat outdoor protests is irrelevant to whether the Orders’
restriction on indoor religious services is constitutional.
Likewise, whether the Governor encouraged outdoor protests that violated earlier stay-athome orders is irrelevant. (See Motion at 3–7.) Plaintiffs make no allegation that the Governor
enforced restrictions on indoor religious services while encouraging comparable secular indoor
activities. See Stormans, 794 F.3d at 1083; Stormans v. Selecky, 586 F.3d 1109, 1125 (9th Cir.
2009).3 Even if the Governor did encourage the protests in violation of earlier stay-at-home
orders—which Plaintiffs fail to present any evidence of—as outdoor activities, the protests are
not equivalent to indoor religious services.4
3
At the hearing, Plaintiffs’ counsel argued that he believed that outdoor protests were in
fact riskier than indoor religious services. Plaintiffs’ counsel, however, is not an expert on
disease spread. And Plaintiffs have failed to submit any expert testimony supporting this
proposition. Moreover, the Governor’s determination that indoor activities carry the greatest
risk is entitled to deference. See Marshall v. United States, 414 U.S. 417, 427 (1974) (holding
that state officials should be awarded broad latitude when they “undertake[] to act in areas
fraught with medical and scientific uncertainties.”)
4
The only evidence Plaintiffs submit in favor of the Motion is their verified Complaint.
Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011) (“A verified complaint may
be treated as an affidavit, and, as such, it is evidence that may support injunctive relief.”)
(continued . . . )
Page 3 of 5
CIVIL MINUTES—GENERAL
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Plaintiffs additionally contend that the Orders are discriminatory because they permit
Plaintiffs to distribute food and provide indoor shelter—activities that Plaintiffs argue are
comparable to indoor religious services. But Plaintiffs fail to provide any concrete information
about the nature of these allegedly permissible activities, only stating vaguely that “member
churches in California have programs that provide food support for the hungry, financial and
ministry support for those in need, and also biblical and social-service-type counseling for
members of their communities throughout California.” (Complaint ¶ 55.) Without more,
Plaintiffs have failed to establish that these activities are anything like indoor worship. And the
Court concludes they likely are not: distributing food at a church is analogous to a grocery store,
not an indoor event such as a concert. Finally, the Governor has determined that these activities
are essential services, and therefore must be exempted from other guidelines for the health and
safety of California residents—a determination which is entitled to this Court’s deference.
Finally, the restriction on indoor chanting and singing applies equally to religious events
and secular events. Plaintiffs argue that this law applies unequally because religious singing is
more likely to occur indoors than singing at protests. A law is not discriminatory simply because
it burdens religious practice greater than secular activities, so long as religious activities are
treated the same as comparable secular activities. Again, because indoor secular singing is
restricted to the same extent that indoor religious singing is restricted, the Orders are neutral in
application.
Because the Orders restrict indoor religious services similarly to or less than comparable
secular activities, it is subject to rational basis review, which it easily passes: by limiting certain
activities, the Orders reduce person-to-person contact, which in turn furthers the interest of
reducing COVID-19 spread. Accordingly, Plaintiffs are not likely to succeed on the merits of
their Free Exercise Claim.
B. Establishment Claim
Plaintiffs argue that Defendant violated the Establishment Clause by subjecting religious
institutions to disparate treatment. (Motion at 21–22.) But, as the Court concluded above, the
Orders treat religious services the same as comparable secular activities. Accordingly, Plaintiffs
are not likely to succeed on the merits of their Establishment Clause Claim.
//
//
However, a verified complaint is treated as Plaintiffs’ own affidavit. In this case, because the
Complaint is verified by Che Ahn, Pastor of Plaintiff Harvest Rock Church and President of
Plaintiff Harvest International Ministries, it functions as Mr. Ahn’s affidavit. However, the
Complaint fails to establish Mr. Ahn’s foundation for any assertions other than those directly
related to Harvest Rock Church and Harvest International Ministries. Accordingly, Plaintiffs
have failed to establish a factual basis for their allegations regarding the protests, Defendant’s
alleged statements, and scientific facts related to the spread of COVID-19, among other things.
Page 4 of 5
CIVIL MINUTES—GENERAL
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C. Free Speech Claim
Finally, Plaintiffs argue that the Orders are content-based restrictions on speech.
However, they fail to explain how they are content based. And the Court concludes they are not:
the Orders restrict activities based on the location and nature of the gathering, rather than the
content of the speech at those gatherings. Accordingly, Plaintiffs are not likely to succeed on the
merits of their Free Speech Claim.
Plaintiffs are not likely to succeed on the merits of their claims. Accordingly, the Court
need not consider the remaining factors.
IV.
CONCLUSION
For the reasons above, the Court DENIES Plaintiffs’ Motion.
IT IS SO ORDERED.
Page 5 of 5
CIVIL MINUTES—GENERAL
Initials of Deputy Clerk iv
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT H TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414 Document 5 Filed 07/20/20 Page 1 of 2 Page ID #:304
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No.
2:20-cv-06414
Title
Harvest Rock Church, Inc. et al. v. Gavin Newsom
Present: The Honorable
Date
July 20, 2020
Otis D. Wright II, United States District Judge
Sheila English
Not reported
N/A
Deputy Clerk
Court Reporter / Recorder
Tape No.
Attorneys Present for Plaintiffs:
Attorneys Present for Defendants:
Not present
Not present
Proceedings (In Chambers):
On July 18, 2020, Plaintiffs Harvest Rock Church, Inc., and Harvest International
Ministry, Inc. (“Harvest Rock”) filed a Complaint and Motion for Temporary Restraining Order
(“TRO”) and Preliminary Injunction (“Motion”) against Defendant Gavin Newsom in his
official capacity as Governor of the State of California. (Mot., ECF No. 4.)
Harvest Rock “seek[s] a temporary restraining order (TRO) and preliminary injunction
restraining enforcement against [Harvest Rock] of the various COVID-19 orders issued by
Governor Newsom and other State officials.” (Mot. 1.) More specifically, Harvest Rock seeks
to prevent enforcement of the orders prohibiting “gathering for any indoor worship services,”
“singing or chanting during religious worship,” “gatherings inside private homes for
small-group Bible studies and worship services,” and other affiliated activities. (Mot. 1–2.)
Harvest Rock contends these restrictions violate its members’ constitutional rights and are
causing them irreparable harm. (See Compl. ¶¶ 140–50, 155–265, ECF No. 1; Mot. 2–24.)
Harvest Rock seeks this injunctive relief without providing notice to Governor Newsom
of either the Complaint or the TRO, yet fails to satisfy the requirements to obtain such an
injunction without notice. Rule 65(b)(1) authorizes a court to issue a temporary restraining
order without notice to the adverse party only if:
(A) specific facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant before
the adverse party can be heard in opposition; and
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 2
Case 2:20-cv-06414 Document 5 Filed 07/20/20 Page 2 of 2 Page ID #:305
(B) the movant’s attorney certifies in writing any efforts made to give notice and
the reasons why it should not be required.
These requirements are “stringent” and the “circumstances justifying the issuance of an ex parte
order are extremely limited.” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1131 (9th
Cir. 2006) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438–39 (1974)).
“[O]ur entire jurisprudence runs counter to the notion of court action taken before reasonable
notice and an opportunity to be heard has been granted both sides of a dispute.” Id.
Harvest Rock’s attorney does not certify in writing that he made any efforts to give notice
of the Complaint or the Motion. (See Mot.) The only communication with opposing counsel
the Court finds in Harvest Rock’s filings is a July 16 prelitigation “demand letter,” demanding
rescission of the various orders by July 17 at 10:00 Pacific time, attached as an exhibit to the
Verified Complaint. (See Compl. ¶ 151, Ex. X, ECF No. 1-24.) Although that letter indicates
Harvest Rock’s counsel “will take further action” if he does not receive the requested response,
this does not satisfy the “stringent” requirement to “certif[y] in writing any efforts made to give
notice [of the TRO motion] and the reasons why it should not be required.” Fed. R. Civ. P.
65(b)(1)(B). As Harvest Rock fails to satisfy the requirements for a TRO without notice, the
Court DENIES Harvest Rock’s Motion for a TRO. See Reno Air Racing Ass’n, 452 F.3d at
1131–32, 1134; Fid. Brokerage Servs. LLC v. York, No. EDCV 19-1929-JGB (SPx), 2019 WL
5485121, at *4 (C.D. Cal. Oct. 23, 2019) (citing Inland Empire Enters., Inc. v. Morton, 365 F.
Supp. 1014, 1018–19 (C.D. Cal. 1973)) (“The Application could have been denied on this
ground alone.”).
Harvest Rock also moves for a preliminary injunction. (See Mot. 1.) “The court may
issue a preliminary injunction only on notice to the adverse party.” Fed. R. Civ. P. 65(a)(1). As
Harvest Rock has not provided notice of the Motion to the adverse party, the Court may not
issue a preliminary injunction. Accordingly, the Court ORDERS Harvest Rock to (1) serve
Governor Newsom with a copy of the Complaint, the Motion for Preliminary Injunction, and
this Order, and (2) file with the Court a Proof of Service reflecting such notice, no later than
July 27, 2020. Upon such notice, Governor Newsom shall respond to Harvest Rock’s Motion
for a Preliminary Injunction no later than August 3, 2020.
IT IS SO ORDERED.
:
Initials of Preparer
CV-90 (06/04)
CIVIL MINUTES - GENERAL
00
SE
Page 2 of 2
No. _____
IN THE SUPREME COURT OF THE UNITED STATES
HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY,
INC., itself and on behalf of its member Churches in California,
Applicants,
v.
GAVIN NEWSOM,
in his official capacity as Governor of the State of California,
Respondent.
To the Honorable Elena Kagan,
Associate Justice of the Supreme Court of the United States
and Circuit Justice for the Ninth Circuit
EXHIBIT I TO APPLICATION FOR
EMERGENCY WRIT OF INJUNCTION
Mathew D. Staver (Counsel of Record)
Horatio G. Mihet
Roger K. Gannam
Daniel J. Schmid
LIBERTY COUNSEL
P.O. Box 540774
Orlando, FL 32853
(407) 875-1776
court@LC.org |hmihet@LC.org
rgannam@LC.org | dschmid@LC.org
Counsel for Applicants
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 1 of 74 Page ID #:1
1
2
3
Nicolai Cocis, CA Bar No. 204703
nic@cocislaw.com
Law Office of Nicolai Cocis
25026 Las Brisas Road
Murrieta, CA 92562
(951) 695-1400 (phone/facsimile)
4
5
6
7
8
9
10
11
Mathew D. Staver*
court@LC.org
Horatio G. Mihet*
hmihet@LC.org
Roger K. Gannam*
rgannam@LC.org
Daniel J. Schmid*
dschmid@LC.org
Liberty Counsel
P.O. Box 540774
Orlando, FL 32854
(407) 875-1776
(407) 875-0770 (facsimile)
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
12
13
14
16
HARVEST ROCK CHURCH, INC., and
HARVEST INTERNATIONAL
MINISTRY, INC., itself and on behalf
of its member churches in California,
17
Plaintiffs,
15
Case No.
18
v.
19
GAVIN NEWSOM, in his
official capacity as Governor of the
State of California,
20
21
VERIFIED COMPLAINT
Defendant.
22
23
24
1
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 2 of 74 Page ID #:2
“Neither a state nor the Federal Government
can set up a church. . . . Neither can force nor influence
a person to go to or to remain away from church against his will.”
Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947).
1
2
3
5
VERIFIED COMPLAINT FOR TEMPORARY RESTRAINING ORDER,
PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF,
DECLARATORY RELIEF, AND DAMAGES
6
For their Verified Complaint against Defendant, GAVIN NEWSOM, in his official
7
capacity as Governor of the State of California, Plaintiffs, HARVEST ROCK CHURCH,
8
INC., and HARVEST INTERNATIONAL MINISTRY, INC., itself and on behalf of its
9
member churches in California, allege and aver as follows:
4
10
URGENCIES JUSTIFYING TEMPORARY RESTRAINING ORDER
11
1.
In their Prayer for Relief, infra, and in the contemporaneously filed Motion
12
for Temporary Restraining Order (TRO), Plaintiffs seek a TRO and preliminary
13
injunction restraining enforcement against Plaintiffs of the various COVID-19 orders
14
issued by Governor Newsom and other State officials—
15
—Prohibiting gathering for any indoor worship services in over 30 counties in
16
California (including those where many of Plaintiffs’ churches are located) and, in the
17
counties where indoor worship is not totally prohibited, prohibiting gathering for indoor
18
worship with 101 or more individuals, or at over 25% capacity (whichever is lower);
19
20
21
22
—Prohibiting singing or chanting during religious worship in counties where
indoor worship remains permissible;
—Prohibiting gatherings inside private homes for small-group Bible studies
and worship services; and
23
24
2
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 3 of 74 Page ID #:3
1
—Imposing discriminatory and disparate prohibitions on the types of activities that
2
Plaintiffs may engage in at their own church buildings, as the orders allow Plaintiffs to
3
feed the hungry, clothe the naked, house the homeless, and provide other material social
4
services to an unlimited number of individuals with unlimited volunteers in a single
5
church building, but the Orders prohibit Plaintiffs from engaging in a religious
6
worship service with the same individuals in the same church building, on pain of
7
criminal penalties. A TRO and preliminary injunction are necessary to protect these
8
vitally important and constitutionally protected liberties, even in the midst of disease.
9
2.
Additionally, while the Governor has unilaterally and significantly restricted
10
the number of individuals permitted to “gather” in Plaintiffs’ churches, he has imposed
11
no similar restrictions on the untold thousands of protesters who have gathered all
12
throughout California cities with no threat of criminal sanction, and no social distancing
13
or restrictions whatsoever. And, the Governor explicitly encouraged such large
14
gatherings of protesters while condemning churches for signing hymns in their
15
churches.
16
3.
At around the same time that Governor Newsom’s Executive Orders and the
17
State’s Public Health Orders regarding COVID-19 were being used to threaten criminal
18
sanctions on Plaintiffs’ pastors, officials in other jurisdictions had similarly threatened
19
to impose criminal sanctions on other religious gatherings. Twice in two weeks the Sixth
20
Circuit Court of Appeals enjoined enforcement of executive orders like the Governor’s
21
orders, determining that restrictions on drive-in and in-person worship services violate
22
the First Amendment. See Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (in-person
23
worship services); Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir.
24
3
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1
2020) (holding plaintiffs likely to succeed on merits of First Amendment and Kentucky
2
RFRA claims for both drive-in and in-person services). Also, in First Pentecostal
3
Church v. City of Holly Springs, Miss., 959 F.3d 669 (5th Cir. 2020), the Fifth Circuit
4
Court of Appeals granted an IPA to a Mississippi church, enjoining enforcement of the
5
Mississippi Governor’s order restricting worship.
6
4.
In Roberts, the Sixth Circuit granted an IPA enjoining the Kentucky
7
Governor from enforcing executive orders prohibiting a church’s in-person worship
8
services when “serial exemptions for secular activities pose comparable public health
9
risks.” 958 F.3d at 414. In determining the plaintiffs’ likely success on the merits of their
10
free exercise claims, the court recognized, “On one side of the line, a generally applicable
11
law that incidentally burdens religious practice usually will be upheld.” Id. at 413 (citing
12
Emp’t Div. v. Smith, 494 U.S. 872, 879–79 (1990)). But, the court concluded the
13
Kentucky orders “likely fall on the prohibited side of the line,” where “a law that
14
discriminates against religious practices usually will be invalidated because it is the rare
15
law that can be ‘justified by a compelling interest and is narrowly tailored to advance
16
that interest.’” Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
17
508 U.S. 520, 553 (1993)).
18
19
20
21
22
23
5.
Expanding on the problems with Kentucky’s orders, the court explained,
Do the four pages of exceptions in the orders, and the kinds
of group activities allowed, remove them from the safe
harbor for generally applicable laws? We think so. As a rule
of thumb, the more exceptions to a prohibition, the less likely it
will count as a generally applicable, non-discriminatory law. At
some point, an exception-ridden policy takes on the
appearance and reality of a system of individualized
exemptions, the antithesis of a neutral and generally
applicable policy and just the kind of state action that must
run the gauntlet of strict scrutiny.
24
4
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1
Id. at 413–14 (cleaned up) (emphasis added).
6.
2
Continuing, the court reasoned, “Assuming all of the same precautions are
3
taken, why can someone safely walk down a grocery store aisle but not a pew? And why
4
can someone safely interact with a brave deliverywoman but not with a stoic minister?
5
The Commonwealth has no good answers.” Id. at 414. Thus, the court rejected the
6
Governor’s suggestion “that the explanation for these groups of people to be in the same
7
area—intentional worship—creates greater risks of contagion than groups of people, say,
8
in an office setting or an airport,” id. at 416, further explaining,
9
the reason a group of people go to one place has nothing to do
with it. Risks of contagion turn on social interaction in close
quarters; the virus does not care why they are there. So long as
that is the case, why do the orders permit people who practice
social distancing and good hygiene in one place but not another
for similar lengths of time? It’s not as if law firm office meetings
and gatherings at airport terminals always take less time than
worship services.
10
11
12
13
14
15
16
17
18
19
Id.
7.
The Roberts court also rejected the notion that the Governor’s orders were
justified because congregants could simply worship online via Facebook, reasoning,
Who is to say that every member of the congregation has access
to the necessary technology to make that work? Or to say that
every member of the congregation must see it as an adequate
substitute for what it means when “two or three gather in my
Name,” Matthew 18:20, or what it means when “not forsaking
the assembling of ourselves together,” Hebrews 10:25.
20
21
22
23
[T]he Free Exercise Clause does not protect sympathetic
religious practices alone. And that’s exactly what the federal
courts are not to judge—how individuals comply with their own
faith as they see it.
Id. at 415 (citation omitted).
24
5
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1
2
8.
Kentucky Governor’s disparate treatment of churchgoers under his orders:
3
Keep in mind that the Church and its congregants just want to be
treated equally. . . . They are willing to practice social distancing.
They are willing to follow any hygiene requirements. . . . The
Governor has offered no good reason for refusing to trust the
congregants who promise to use care in worship in just the
same way it trusts accountants, lawyers, and laundromat
workers to do the same.
4
5
6
Come to think of it, aren’t the two groups of people often the
same people—going to work on one day and going to worship
on another? How can the same person be trusted to comply
with social-distancing and other health guidelines in secular
settings but not be trusted to do the same in religious
settings? The distinction defies explanation, or at least the
Governor has not provided one.
7
8
9
10
11
12
In awarding the injunction, the Roberts court brought into sharp relief the
Id. at 414 (emphasis added).
9.
A week after the Sixth Circuit’s Roberts decision, the Eastern District of
13
North Carolina issued a TRO enjoining the North Carolina Governor from enforcing a
14
10-person limit on religious worship because it violated the Free Exercise Clause. See
15
Berean Baptist Church v. Cooper, No. 4:20-cv-81-D, 2020 WL 2514313 (E.D.N.C. May
16
16, 2020) [hereinafter Berean Baptist]. In granting the TRO, the court noted upfront,
17
“There is no pandemic exception to the Constitution of the United States or the Free
18
Exercise Clause of the First Amendment.” 2020 WL 2514313, at *1 (emphasis added).
19
10.
The North Carolina “stay-at-home” orders challenged in Berean Baptist
20
provided exemptions from their 10-person gathering limits for numerous “Essential
21
Business and Operations.” Id. at *3. But, the North Carolina orders subjected worship
22
services to a 10-person limit that was not imposed on any of the myriad “Essential”
23
businesses and activities. 2020 WL 2514313, at *4. The Berean Baptist court observed
24
6
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1
that the uniquely restrictive 10-person limit for worship gatherings “represent[s]
2
precisely the sort of ‘subtle departures from neutrality’ that the Free Exercise Clause is
3
designed to prevent.” Id. at *6 (quoting Gillette v. United States, 401 U.S. 437, 452
4
(1971)).
5
11.
6
The court observed further,
Eleven men and women can stand side by side working indoors
Monday through Friday at a hospital, at a plant, or at a package
distribution center and be trusted to follow social distancing and
hygiene guidance, but those same eleven men and women cannot
be trusted to do the same when they worship inside together on
Saturday or Sunday. “The distinction defies explanation . . . .”
7
8
9
10
11
Id. at *8 (quoting Roberts, 958 F.3d at 414).
12.
Thus, the court concluded, “These glaring inconsistencies between the
12
treatment of religious entities and individuals and non-religious entities and individuals
13
take [the orders] outside the ‘safe harbor for generally applicable laws.’” Id. (quoting
14
Roberts, 958 F.3d at 413).
15
13.
Ultimately, in concluding the North Carolina orders could not pass strict
16
scrutiny, the Berean Baptist court recognized that the plaintiffs “simply want the
17
Governor to afford them the same treatment as they and their fellow non-religious
18
citizens receive when they work at a plant, clean an office, ride a bus, shop at a store, or
19
mourn someone they love at a funeral.” Id. at *9 (citing Lukumi, 508 U.S. at 546 (“The
20
proffered objectives are not pursued with respect to analogous non-religious conduct,
21
and those interests could be achieved by narrower ordinances that burdened religion to a
22
far lesser degree.”)).
23
24
7
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1
14.
In Louisville, Kentucky, the government threatened to use police to impose
2
criminal sanctions on those individuals found in violation of similar COVID-19 orders
3
and threatened to impose various sanctions on individuals found in violation of such
4
orders. The United States District Court for the Western District of Kentucky found that
5
the mere threat of such criminal sanction warranted a TRO. See On Fire Christian
6
Center, Inc. v. Fischer, No. 3:20-cv-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11,
7
2020) [hereinafter On Fire]. The On Fire TRO enjoined the Mayor of Louisville from
8
“enforcing, attempting to enforce, threatening to enforce, or otherwise requiring
9
compliance with any prohibition on drive-in church services at On Fire.” Id. at *1
10
(emphasis added).
11
15.
Additionally, the Governor of Kansas had imposed a similar restriction on
12
religious gatherings in Kansas, stating that “gatherings” of more than 10 individuals are
13
prohibited, including religious gatherings. On April 18, 2020, the United States District
14
for the District of Kansas issued a TRO enjoining Kansas officials from enforcing its
15
discriminatory prohibition on religious gatherings and required the government to treat
16
“religious” worship services the same as other similar gatherings that are permitted. See
17
First Baptist Church. v. Kelly, No. 20-1102-JWB, 2020 WL 1910021, *6–7 (D. Kan.
18
Apr. 18, 2020) [hereinafter First Baptist]. The First Baptist TRO specifically stated that
19
the government’s disparate treatment of religious gatherings was a violation of the Free
20
Exercise Clause because it showed that “religious activities were specifically targeted
21
for more onerous restrictions than comparable secular activities,” and that the
22
churches had shown irreparable harm because they would “be prevented from gathering
23
24
8
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1
for worship at their churches” during the pendency of the executive order. Id. at *7–8
2
(emphasis added).
3
16.
In discussing the Kansas orders, which imposed a 10-person limit on in-
4
person gatherings, the court said that specifically singling out religious gatherings for
5
disparate treatment while permitting other non-religious activities “show[s] that these
6
executive orders expressly target religious gatherings on a broad scale and are, therefore,
7
not facially neutral,” First Baptist, 2020 WL 1910021, at *7, and—much like here—
8
“churches and religious activities appear to have been singled out among essential
9
functions for stricter treatment. It appears to be the only essential function whose core
10
purpose—association for the purpose of worship—had been basically eliminated.” Id.
11
(emphasis added). Thus, the court found that a TRO was necessary and that Kansas
12
should be enjoined from enforcing its orders’ disparate terms against churches. Indeed,
13
“it goes without saying that the government could not lawfully expressly prohibit
14
individuals from meeting together for religious services.” Id. at *6 (emphasis added).
15
17.
Also, several courts have found that the government’s open encouragement
16
of protesters flouting the various COVID-19 gathering restrictions across the country and
17
the concomitant refusal by government officials to impose similar threats of criminal
18
sanctions upon such massive gatherings while simultaneously threatening religious
19
worship services that exceed the arbitrary numerical limitations represents a gross
20
violation of the First Amendment.
21
18.
The constitutional incongruity of Governor Newsom’s encouragement of
22
protesters while restricting worshippers was highlighted by Judge Ho of the Fifth Circuit
23
in his concurrence in Spell v. Edwards, 962 F.3d 175 (5th Cir. 2020), where the court
24
9
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1
dismissed as moot an appeal arising from a church’s challenge to Louisiana’s stay-at-
2
home orders restricting worship services to 10 people. 962 F.3d at 177. Judge Ho first
3
recounted,
4
At the outset of the pandemic, public officials declared that
the only way to prevent the spread of the virus was for everyone
to stay home and away from each other. They ordered citizens to
cease all public activities to the maximum possible extent—even
the right to assemble to worship or to protest
5
6
7
8
Id. at 180-81 (Ho., J., concurring).
19.
Then, he observed, “But circumstances have changed. In recent weeks,
9
officials have not only tolerated protests—they have encouraged them . . . .” Id. at 181.
10
And he posed a question:
11
For people of faith demoralized by coercive shutdown policies,
that raises a question: If officials are now exempting protesters,
how can they justify continuing to restrict worshippers? The
answer is that they can’t. Government does not have carte
blanche, even in a pandemic, to pick and choose which First
Amendment rights are “open” and which remain “closed.”
12
13
14
15
16
Id. (emphasis added).
20.
Judge Ho noted that, “To survive First Amendment scrutiny, however, those
17
orders must be applied consistently, not selectively. And it is hard to see how that rule is
18
met here [in light] of the recent protests.” Id. at 182.
19
21.
He continued, “It is common knowledge, and easily proved, that protesters
20
do not comply with social distancing requirements. But instead of enforcing the
21
Governor’s orders, officials are encouraging the protests—out of an admirable, if
22
belated, respect for First Amendment rights.” Id.
23
24
10
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1
22.
As the Constitution demands, Justice Ho explained that: “If protests are
2
exempt from social distancing requirements, then worship must be too.” Id. (emphasis
3
added).
4
23.
Of particular relevance to Plaintiffs’ claims herein, Judge Ho cited a brief
5
filed by the United States in another case against Governor Newsom in observing that
6
“California’s political leaders have expressed support for such peaceful protests and,
7
from all appearances, have not required them to adhere to the now-operative 100-person
8
limit . . . . It could raise First Amendment concerns if California were to hold other
9
protests to a different standard.” Id. (emphasis added). Indeed, the same principle
10
Governor Newsom applies to protesters “should apply to people of faith.” Id. (emphasis
11
added).
12
24.
Much like the Governor here, “support for the protests reflects a
13
commendable commitment to equality. But public officials cannot devalue people of
14
faith while elevating certain protesters. That would offend the First Amendment—not to
15
mention the principle of equality for which the protests stand.” Id. at 183 (emphasis
16
added).
17
25.
As Judge Ho stated, “The point here is that state and local officials gave
18
[protesters] the choice,” to ignore the prohibitions on gathering. Id. “Those officials took
19
no action when protesters chose to ignore health experts and violate social distancing
20
rules. And that forbearance has consequences.” Id. (emphasis added).
21
22
23
26.
The consequences Judge Ho referred to are that,
The First Amendment does not allow our leaders to decide which
rights to honor and which to ignore. In law, as in life, what’s good
for the goose is good for the gander. In these troubled times,
nothing should unify the American people more than the
24
11
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principle that freedom for me, but not for thee, has no place
under our Constitution.
1
2
Id. (emphasis added).
27.
3
Similarly, as recounted in Soos v. Cuomo, No. 1:20-cv-651 (GLS/DJS), 2020
4
WL 3488742 (N.D.N.Y. June 26, 2020), the Governor of New York and the New York
5
City Mayor openly encouraged protesters gathering in large numbers in New York, 2020
6
WL 3488742, *4–5, while continuing to prohibit in-person religious gatherings. Id. at
7
*5-6.
8
28.
The Northern District of New York issued a preliminary injunction enjoining
9
the enforcement of the “ever changing maximum number of people” for religious
10
worship because the disparate treatment for protesters as compared to religious
11
congregants in worship services violated the First Amendment. Id. at *8 (“[I]t is plain to
12
this court that the broad limits of that executive latitude have been exceeded.”).
13
29.
The court found that a restriction of 25% capacity for indoor worship services
14
that is not applied equally to non-religious businesses and certainly not applied to
15
protesters removes the law from general applicability and thus mandates strict scrutiny.
16
Id. at *11.
17
30.
With respect to openly supporting protesters, rioters, and looters while
18
imposing draconian restrictions on indoor religious worship services, the court noted that
19
“Mayor de Blasio’s simultaneous pro-protest/anti-religious gatherings message . . .
20
clearly undermines the legitimacy of the proffered reason for what seems to be a clear
21
exemption, no matter the reason.” Id., at *12.
22
23
31.
Indeed,
Governor Cuomo and Mayor de Blasio could have just as easily
discouraged protests, short of condemning their message, in the
24
12
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name of public health and exercised discretion to suspend
enforcement for public safety reasons instead of encouraging
what they knew was a flagrant disregard of the outdoor limits and
social distancing rules. They could have also been silent. But, by
acting as they did, Governor Cuomo and Mayor de Blasio
sent a clear message that mass protests are deserving of
special treatment.
1
2
3
4
5
6
Id. at *12 (emphasis added).
32.
Because the government in New York treated protesters differently and more
7
favorably than religious gatherings, the court held that such disparate treatment violated
8
the Free Exercise Clause and issued a preliminary injunction. Id. at *13.
9
33.
The same result should obtain here. The Governor’s orders impose
10
disparately onerous prohibitions and numerical restrictions on religious gatherings in
11
churches, and even on in-home Bible studies, worship meetings, and life groups.
12
Moreover, the orders purport to dictate the manner in which Plaintiffs may engage in
13
acceptable religious worship by prohibiting singing and chanting where indoor worship
14
is allowed, and by allowing provision and receipt of approved social services by
15
unlimited numbers in the same church buildings where religious worship services are
16
limited numerically or prohibited altogether. And the Governor has imposed these
17
draconian restrictions on Plaintiffs while openly celebrating and encouraging mass
18
gatherings for protests. The Constitution demands more and so should this Court.
INTRODUCTION
19
20
34.
Due to the unprecedented nature of COVID-19 and the health tragedy the
21
disease has wrought on our great Republic and those victims suffering under its yoke,
22
there are those who may find it “tempting to hold that First Amendment rights should
23
acquiesce to national security in this instance.” Tobey v. Jones, 706 F.3d 379, 393 (4th
24
13
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 14 of 74 Page ID #:14
1
Cir. 2013). One could be forgiven for hastily reaching such a conclusion in such uncertain
2
times, but “our Forefather Benjamin Franklin warned against such a temptation by
3
opining that those who can give up essential liberty to obtain a little temporary safety,
4
deserve neither liberty nor safety.” Id.
5
35.
When the great American experiment was first implemented, our revered
6
Founders took pains to note that the Constitution—and all of the rights it recognized and
7
enshrined—was instituted “in order to form a more perfect Union, establish Justice,
8
insure domestic Tranquility, provide for the common defense, promote the general
9
Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.” U.S. Const.
10
Pmbl. (emphasis added). To this very day, “we continue to strive toward ‘[that] more
11
perfect union.’” Smith v. City of New Smyrna Beach, No. 6:110cv01110-Orl-37KRS,
12
2013 WL 5230659, *1 (M.D. Fla. Sept. 16, 2013). That work is not easy, and
13
governments can and sometimes do miss the mark. This is such a case.
14
36.
Recognizing that times of crisis would arise, that such times might lead
15
governments to seek to repress precious freedoms, and that the Republic’s survival
16
depended upon defeating such repressive instincts, the genius of our founding document
17
is that it placed explicit protections into the text of the Bill of Rights. And, importantly,
18
“[o]ur Bill of Rights placed our survival on firmer ground—that of freedom, not
19
repression.” Konigsberg v. State Bar of California, 366 U.S. 36, 79 (1961) (Black, J.,
20
dissenting).
21
37.
During times of national crisis, such as the current uncertainty arising from
22
COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our
23
Bill of Rights.” American Communist Ass’n, C.I.O. v. Douds, 339 U.S. 382, 453 (1950)
24
14
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 15 of 74 Page ID #:15
1
(Black, J., dissenting). But, where the fog of public excitement is at its apex, “the more
2
imperative is the need to preserve inviolate the constitutional rights of free speech, free
3
press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt,
4
“[t]herein lies the security of the Republic, the very foundation of constitutional
5
government.” Id.
6
38.
It is beyond cavil that our commitment to our founding principles is most
7
tested and best calculated during times of crisis and uncertainty. Indeed, “[t]imes of crisis
8
take the truest measure of our commitment to constitutional values. Constitutional
9
values are only as strong as our willingness to reaffirm them when they seem most
10
costly to bear.” Hartness v. Bush, 919 F.2d 170, 181 (D.C. Cir. 1990) (Edwards, J.,
11
dissenting) (emphasis added). Our willingness to reaffirm our staunch commitment to
12
our fundamental freedoms is imperative to the very survival of the American experiment.
13
For, “[h]istory reveals that the initial steps in the erosion of individual rights are usually
14
excused on the basis of an ‘emergency’ or threat to the public. But the ultimate strength
15
of our constitutional guarantees lies in the unhesitating application in times of crisis
16
and tranquility alike.” United States v. Bell, 464 F.2d 667, 676 (2d Cir. 1972)
17
(Mansfield, J., concurring) (emphasis added).
18
39.
Plaintiffs bring this case to restrain the troubling transgression of their
19
fundamental and cherished liberties wrought by the imposition of Governor Newsom’s
20
orders contrived from COVID-19. Plaintiffs seek not to discredit or discard the
21
government’s unquestionable interest in doing that task for which it was instituted—
22
protecting the citizenry. But, as is often true in times of crisis, Plaintiffs respectfully
23
submit that the Governor has transgressed a line the Constitution does not permit.
24
15
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1
Because of that, Plaintiffs bring this action to ensure that this Court safeguards the
2
cherished liberties for which so many have fought and died. For, “[i]f the provisions of
3
the Constitution be not upheld when they pinch as well as when they comfort, they may
4
as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934)
5
(Sutherland, J., dissenting) (emphasis added). Plaintiffs pray unto the Court that it not
6
permit the cherished and fundamental liberties enshrined in the Constitution to be another
7
tragic casualty of COVID-19.
PARTIES
8
9
40.
Plaintiff HARVEST ROCK CHURCH, INC. (“Harvest Rock”) is a domestic
10
nonprofit corporation incorporated under the laws of the State of California with its
11
principal place of business Pasadena, California, and with campuses in several other
12
localities in California.
13
41.
Plaintiff HARVEST INTERNATIONAL MINISTRY, INC. (“Harvest
14
International”) is a domestic nonprofit corporation incorporated under the laws of the
15
State of California with its principal place of business in Pasadena, California, and with
16
162 member churches in the State of California. Harvest International brings this action
17
for itself and on behalf of its member churches in California.
18
42.
Defendant, GAVIN NEWSOM, is the Governor of California, with authority
19
to sue and be sued, and is responsible for enacting and enforcing the COVID-19
20
executive orders and directives at issue in this litigation. The enforcement of the COVID-
21
19 orders and directives is under the Governor’s authority and under the direct
22
supervision of the Governor’s Office of Emergency Services. Governor Newsom is sued
23
in his official capacity.
24
16
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JURISDICTION AND VENUE
1
2
3
43.
This action arises under the First and Fourteenth Amendments to the United
States Constitution and is brought pursuant to 42 U.S.C. § 1983.
4
44.
5
and 1343.
6
45.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331
Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b)(2) because a
7
substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in
8
this district, and pursuant to 28 U.S.C. § 1391(b)(3) because the Governor is subject to
9
personal jurisdiction in this Court.
10
46.
This Court is authorized to grant declaratory relief under the Declaratory
11
Judgment Act, 28 U.S.C. §§ 2201–02, implemented through Rule 57 of the Federal Rules
12
of Civil Procedure, and is authorized to grant TRO and injunctive relief pursuant to Rule
13
65 of the Federal Rules of Civil Procedure.
14
15
47.
This Court is authorized to grant Plaintiffs’ prayer for relief regarding costs,
including a reasonable attorney’s fee, pursuant to 42 U.S.C. § 1988.
GENERAL ALLEGATIONS
16
17
A.
PLAINTIFFS’ CHURCHES AND THEIR RELIGIOUS MINISTRIES.
18
48.
Harvest Rock has numerous church campuses, including in Pasadena, Irvine,
19
and Corona. Harvest Rock has and exercises sincere religious beliefs that it is to minister
20
the Gospel of Jesus Christ to its members and attendees at its facilities, that it cannot
21
fulfill its vital ministry and sincere religious beliefs without gathering together in person,
22
and cannot effectively engage in its constitutionally protected free exercise of religion
23
on the Internet.
24
17
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1
49.
Harvest Rock has and exercises sincere religious beliefs that a Church is
2
fundamentally a communal and associational body of Believers in Jesus Christ that must
3
gather together in order to fulfill the vital requirements of scriptural commands. Put
4
simply, Harvest Rock has and exercises sincere religious beliefs that failure to gather
5
together in person for religious worship services in which its members and congregants
6
may worship the Lord, receive biblical teaching, and minister to one another’s needs is
7
disobedience to the Lord for which they will be held divinely accountable.
8
50.
In fact, Harvest Rock has and exercises a sincere religious belief that failure
9
to abide by Scripture’s command that it gather its congregants together to worship the
10
Lord is disobedience to the Lord for which its pastors will be held divinely accountable.
11
Harvest Rock has and exercises sincere religious beliefs that it must adhere to all
12
scriptural commands, and that failure to do so will result in the strictest of divine
13
judgment for its pastors and leaders. See Hebrews 3:17; James 3:1.
14
51.
As part of its religious mission, Harvest Rock has a ministry at its church
15
called the Hope Center, which is staffed by church leaders and volunteers. The Hope
16
Center provides support for those with financial, familial, emotional, and spiritual needs
17
in its communities. Harvest Rock has and exercises sincere religious beliefs that
18
Scripture commands it to feed the hungry, give water to the thirsty, clothe the naked,
19
house the homeless, and counsel the afflicted. All of these ministries have been impacted
20
by the Governor’s COVID-19 Orders.
21
22
52.
As part of the exercise of its sincerely held religious beliefs, Harvest Rock’s
Church campuses also have numerous Life Groups, which meet in the homes of members
23
24
18
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 19 of 74 Page ID #:19
1
of the Church to worship together, engage in Bible study, fellowship with one another,
2
and minister to the needs of each other.
3
53.
Harvest Rock has and exercises sincere religious beliefs that it is to raise up
4
disciples and launch reformers through families, for the purpose of advancing the
5
Kingdom of God. Harvest Rock has and exercises a sincere religious belief that Life
6
Groups are an essential way for the church to fulfill its mission and to foster a healthy,
7
vibrant, and growing Church community such that its members can gather together to
8
grow in the Lord, mature in their faith, and understand the Scriptures better.
9
54.
Harvest International has 162 member churches in California, and each of
10
these churches has and exercises the sincere religious beliefs that the church is to minister
11
the Gospel of Jesus Christ to its members and attendees at its facilities, that it cannot
12
fulfill its vital ministry and sincere religious beliefs without gathering together in person,
13
and that it cannot effectively engage in its constitutionally protected free exercise of
14
religion on the Internet.
15
55.
Many of Harvest International’s member churches in California have
16
programs that provide food support for the hungry, financial and ministry support for
17
those in need, and also biblical and social-service-type counseling for members of their
18
communities throughout California. These churches also have and exercise sincere
19
religious beliefs that Scripture commands them to feed the hungry, give water to the
20
thirsty, clothe the naked, house the homeless, and counsel the afflicted. All of these
21
ministries have been impacted by the Governor’s COVID-19 orders.
22
23
24
19
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 20 of 74 Page ID #:20
1
56.
Many of Harvest International’s member churches in California also have
2
smaller groups that meet in the homes of their members to worship together, engage in
3
Bible study, fellowship with one another, and minister to the needs of the group.
4
57.
Harvest International’s member churches in California have and exercise
5
sincere religious beliefs that a Church is fundamentally a communal and associational
6
body of Believers in Jesus Christ that must gather together in order to fulfill the vital
7
requirements of scriptural commands. Put simply, Harvest International’s member
8
churches in California have and exercise sincere religious beliefs that failure to gather
9
together in person for religious worship services in which their members and congregants
10
may worship the Lord, receive biblical teaching, and minister to one another’s needs is
11
disobedience to the Lord for which they will be held divinely accountable.
12
58.
In fact, Harvest International’s member churches in California have and
13
exercise a sincere religious belief that failure to abide by Scripture’s command that they
14
gather together to worship the Lord, is a sin for which their Pastors will be held divinely
15
accountable. Harvest International’s member churches in California have and exercise
16
sincere religious beliefs that they must adhere to all scriptural commands, and that failure
17
to do so will result in the strictest of divine judgment for their pastors and leaders. See
18
Hebrews 3:17; James 3:1.
19
59.
Plaintiffs and their churches all have and exercise sincere religious beliefs
20
that they are to “sing to the LORD” and “[d]eclare his glory among the nations.” Psalm
21
96:1–2 (ESV).
22
23
24
20
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 21 of 74 Page ID #:21
60.
1
Plaintiffs and their churches all have and exercise sincere religious beliefs
2
that they are to “make a joyful noise” to the Lord, Psalm 95:1 (ESV), through singing
3
and chanting His praises.
61.
4
5
Plaintiffs and their churches all have and exercise sincere religious beliefs
that they are to “sing to the LORD as long as I live.” Psalm 104:33 (ESV).
62.
6
Plaintiffs and their churches all have and exercise sincere religious beliefs
7
that not only are they to sing to the Lord, also to “declare [His] name unto my brethren,”
8
and that “in the midst of the church will [they] sing praise” to the Lord. Hebrews 2:12
9
(KJV) (emphasis added).
63.
10
Plaintiffs and their churches all have and exercise sincere religious beliefs
11
that, in the current times of trouble and distress, they are to sing to the Lord even more
12
and to sing aloud to Him. See Psalm 59:16 (ESV) (“I will sing aloud of your steadfast
13
love in the morning. For you have been to me a fortress and a refuge in the day of my
14
distress.”).
64.
15
Plaintiffs and their churches all have and exercise sincere religious beliefs
16
that they are to chant and shout to the Lord as well. See Psalm 33:3 (ESV) (“Sing to him
17
a new song; play skillfully on the strings, with loud shouts.” (emphasis added)).
65.
18
Plaintiffs and their churches all have and exercise sincere religious beliefs,
19
rooted in Scripture’s commands (e.g., Hebrews 10:25), that followers of Jesus Christ are
20
not to forsake the assembling of themselves together, and that they are to do so even
21
more in times of peril and crisis. Indeed, the entire purpose of the Church (in Greek
22
“ekklesia,” meaning “assembly”) is to assemble together Christians to worship Almighty
23
God.
24
21
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 22 of 74 Page ID #:22
1
B.
GOVERNOR NEWSOM’S EXECUTIVE ORDERS AND
CALIFORNIA PUBLIC HEALTH ORDERS.
66.
On March 4, 2020 the Governor issued a Proclamation proclaiming a State
2
3
4
of Emergency existed in California due to the COVID-19 disease. A true and correct
5
copy of that Proclamation is attached hereto as EXHIBIT A and incorporated herein.
6
67.
On March 12, 2020 the Governor issued Executive Order N. 25-20, stating
7
that all residents of California “are to heed any orders and guidance of state and local
8
public health officials, including but not limited to the imposition of social distancing
9
measures.” A true and correct copy of Executive Order N. 25-20 is attached hereto as
10
EXHIBIT B and incorporated herein.
11
68.
One week later, on March 19, 2020 the Director of the California Department
12
of Public Health, at the direction of the Governor, issued an Order of the State Public
13
Health Officer “order[ing] all individuals living in the State of California to stay home
14
or at their residence except as needed to maintain continuity of operations of the federal
15
critical infrastructure sectors.” A true and correct copy of the March 19, 2020 Public
16
Health Order (the “Stay-at-Home Order”) is attached hereto as EXHIBIT C and
17
incorporated herein.
18
19
20
69.
The Stay-at-Home Order became effective immediately and remains “in
effect until further notice,” and is still in effect.
70.
The “federal critical infrastructure sectors” adopted and incorporated into the
21
Stay-at-Home Order as exempt from its stay-at-home requirements, allowing
22
“Californians working in these 16 critical infrastructure sectors [to] continue their work,”
23
are the 16 critical infrastructure sectors identified by the U.S. Department of Homeland
24
22
Case 2:20-cv-06414-JFW-PJW Document 1 Filed 07/17/20 Page 23 of 74 Page ID #:23
1
Security Cybersecurity and Infrastructure Security Agency (CISA). A true and correct
2
copy of CISA’s current Guidance on the Essential Critical Infrastructure Workforce,
3
Version 3.1 (the “CISA Guidance”) is attached hereto as EXHIBIT D and incorporated
4
herein.
5
71.
The businesses and operations included within the 16 expansive
6
infrastructure categories exempted by the Stay-at-Home Order include (a) businesses
7
providing food and groceries (such as Ralphs and Trader Joe’s grocery stores, and
8
Walmart and Costco “big-box” stores), (b) food manufacturing and warehousing, (c)
9
organizations providing “food, shelter, and social services, and other necessities of life
10
for economically disadvantaged or otherwise needy individuals,” (d) businesses
11
providing construction materials and equipment (such as Home Depot and Lowe’s
12
warehouse stores), (e) e-commerce distribution facilities (such as Amazon.com
13
facilities), (f) bank and financial processing and service centers (such as Wells Fargo and
14
Chase centers), and (g) “radio, television, and media service” organizations (of any size),
15
and a host of other exempted businesses and operations (of any size) where large numbers
16
of individuals are permitted to gather for extended periods of time with unavoidable close
17
contact.
18
72.
The Stay-at-Home Order imposes no numerical limitations on the persons
19
working in or patronizing the exempted businesses and non-religious activities, and
20
advises only “that they should at all times pra
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