Amicus Curiae Brief — Gateway City Church, et al., Applicants v. Gavin Newsom, Governor of California, et al.
Supreme Court briefFeb 24, 2021
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No. 20A138
In the Supreme Court of the United States
GATEWAY CITY CHURCH, ET AL.,
Applicants,
v.
GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF CALIFORNIA, ET AL.,
Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States
Supreme Court and Circuit Justice for the Ninth Circuit
MOTION FOR LEAVE TO FILE
BRIEF AMICUS CURIAE IN SUPPORT OF APPLICANTS OF
THE ROMAN CATHOLIC BISHOP OF SAN JOSÉ
ERIC C. RASSBACH
Counsel of Record
DANIEL L. CHEN
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
erassbach@becketlaw.org
Counsel for Amicus Curiae
The Roman Catholic Bishop of San José (“Diocese”) respectfully moves for leave to
file a brief amicus curiae in support of the application, without 10 days’ advance
notice to the parties of Amicus’s intent to file as ordinarily required. In accordance
with the Court’s order of April 15, 2020, the proposed brief conforms to the formatting
requirements of Rule 33.2.
In light of the expedited nature of the case, it was not feasible to give 10 days’
notice, but Amicus was nevertheless able to obtain a position on the motion from the
parties. All parties have consented to the filing of the amicus brief.
The Diocese of San José (legally the Roman Catholic Bishop of San José) is the
largest religious body in Santa Clara County. There are over 600,000 Catholics in
Santa Clara County, approximately one third of the County’s entire population. The
Diocese is led by Bishop Oscar Cantú and is comprised of 54 parishes and missions.
The Diocese is coextensive with the County.
Due to State and County orders, Catholics in the Diocese were unable to attend
Mass in church from November until this Court’s ruling in South Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (South Bay II). Many of the
Diocese’s members are essential workers at grocery stores, hospitals, and nursing
homes. They have gone to work day-in, day-out, during the entire course of the
pandemic. Yet for long stretches of the past year these Catholics have been denied
the solace of going to church.
The Diocese seeks to file the proposed amicus brief to bring to the Court’s attention
the fact that the County’s complete ban on indoor worship is an extreme outlier, both
ii
nationally and within the State of California. In the wake of this Court’s decision in
South Bay II, no state—and, to the Diocese’s knowledge, none of the other over 80,000
local governments in the United States—bans worship outright. Yet the County has
chosen to flout this Court’s rulings in Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) and South Bay II. As the brief explains, the County’s disparate
response to the pandemic is as unfair as it is unwarranted, and the burden of the
inequality falls squarely on the Catholics (and people of other faiths) of Santa Clara
County. The amicus brief thus includes relevant material not fully brought to the
attention of the Court by the parties. See Sup. Ct. R. 37.1.
For the foregoing reasons, proposed Amicus respectfully requests that the Court
grant this unopposed motion to file the attached proposed amicus brief and accept it
in the format and at the time submitted.
Respectfully submitted.
ERIC C. RASSBACH
Counsel of Record
DANIEL L. CHEN
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
erassbach@becketlaw.org
Counsel for Amicus Curiae
FEBRUARY 2021
iii
No. 20A138
In the Supreme Court of the United States
GATEWAY CITY CHURCH, ET AL.,
Applicants,
v.
GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF CALIFORNIA, ET AL.,
Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States
Supreme Court and Circuit Justice for the Ninth Circuit
BRIEF AMICUS CURIAE IN SUPPORT OF APPLICANTS OF
THE ROMAN CATHOLIC BISHOP OF SAN JOSÉ
ERIC C. RASSBACH
Counsel of Record
DANIEL L. CHEN
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
erassbach@becketlaw.org
Counsel for Amicus Curiae
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................... ii
INTEREST OF THE AMICUS CURIAE ...................................................................... 1
INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 2
ARGUMENT .................................................................................................................. 4
I. The County’s orders flout Diocese of Brooklyn and
South Bay II by treating worship worse than a host
of secular activities. ............................................................................................ 4
II. The Court should recognize a presumption against
severe restrictions on worship. ......................................................................... 12
CONCLUSION............................................................................................................. 13
APPENDIX................................................................................................................. A-1
i
TABLE OF AUTHORITIES
Page(s)
Cases
Board of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc.,
482 U.S. 569 (1987) ................................................................................................ 12
Church of the Lukumi Babalu Aye v. City of Hialeah,
508 U.S. 520 (1993) .........................................................................................passim
Holt v. Hobbs,
574 U.S. 352 (2015) .......................................................................................... 11, 12
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n,
138 S. Ct. 1719 (2018) .............................................................................................. 9
Oklahoma Pub. Co. v. District Court In & For Oklahoma Cty.,
430 U.S. 308 (1977) ................................................................................................ 12
Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) .........................................................................................passim
South Bay United Pentecostal Church v. Newsom,
141 S. Ct. 716 (2021) .......................................................................................passim
Wearry v. Cain,
136 S. Ct. 1002 (2016) ............................................................................................ 13
West Virginia State Bd. of Educ. v. Barnette,
319 U.S. 624 (1943) ................................................................................................ 13
Other Authorities
County of Santa Clara Moves Into State’s Orange Tier, Santa Clara
County Public Health (Oct. 13, 2020) .................................................................... 10
County of Santa Clara Moves to the Red Tier (Tier 2) on State’s New
COVID-19 Framework, Santa Clara County Public Health (Sept. 8,
2020).......................................................................................................................... 8
COVID-19 and Religious Liberty, Becket Fund for Religious Liberty ...................... 11
Essential workforce, California for All .......................................................................... 8
Framework, Santa Clara County Public Health (Sept. 8, 2020).................................. 9
ii
Gatherings, Santa Clara County Public Health (July 14, 2020) ................................. 9
Industry guidance to reduce risk, California for All. .................................................. 10
Mandatory Directive for Gatherings, Santa Clara County Public Health
(July 14, 2020) .......................................................................................................... 9
Mandatory Directive on Capacity Limitations, Santa Clara County
Public Health (Nov. 15, 2020) .................................................................................. 8
Official Inspection Report, County of Santa Clara Department of
Environmental Health (Feb. 3, 2021) ...................................................................... 8
Order of the Health Officer of Santa Clara County, Santa Clara County
Public Health (March 16, 2020) ............................................................................. 12
Santa Clara County Moving into State’s Purple Tier as COVID-19
Cases and Hospitalizations Rise Locally, Santa Clara County Public
Health (Nov. 16, 2020) ........................................................................................... 10
Statement of the County of Santa Clara Public Health Department
Regarding the State of California’s New COVID-19 Regulatory
Framework, Santa Clara County Public Health (Aug. 28, 2020) ........................... 9
Statement Regarding Indoor Worship Services, Santa Clara County
Public Health (Feb. 8, 2021) .................................................................................. 10
Statement Regarding Indoor Worship Services, Santa Clara County
Public Health (Feb. 11, 2021) ................................................................................ 11
U.S. Const. amend I ..................................................................................................... 12
iii
INTEREST OF THE AMICUS CURIAE1
The Diocese of San José (legally the Roman Catholic Bishop of San José) is the
largest religious body in Santa Clara County. There are over 600,000 Catholics in
Santa Clara County, approximately one third of the County’s entire population. The
Diocese is led by Bishop Oscar Cantú and is comprised of 54 parishes and missions.
The Diocese is coextensive with the County.
Due to State and County orders, Catholics in the Diocese were unable to attend
Mass in church from November until this Court’s ruling in South Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (South Bay II). Many of the
Diocese’s members are essential workers at grocery stores, hospitals, and nursing
homes. They have gone to work day-in, day-out, during the entire course of the
pandemic. Yet for long stretches of the past year these Catholics have been denied
the solace of going to church.
The Diocese submits this amicus brief to bring to the Court’s attention the fact
that the County’s complete ban on indoor worship is an extreme outlier, both
nationally and within the State of California. In the wake of this Court’s decision in
South Bay II, no state—and, to the Diocese’s knowledge, none of the other over 80,000
local governments in the United States—bans worship outright. Yet the County has
chosen to flout this Court’s rulings in Roman Catholic Diocese of Brooklyn v. Cuomo,
141 S. Ct. 63 (2020) and South Bay II. The County’s disparate response to the
No counsel for a party authored this brief in whole or in part, and no person other than amicus,
its members, or its counsel made a monetary contribution to fund the brief’s preparation or submission.
This brief has been submitted with an unopposed motion for leave to file it.
1
1
pandemic is as unfair as it is unwarranted, and the burden of the inequity falls
squarely on the Catholics (and people of other faiths) of Santa Clara County.
INTRODUCTION AND SUMMARY OF ARGUMENT
The Court could be forgiven for wondering whether it is waking up in a judicial
remake of Groundhog Day. The Court has repeatedly answered the question whether
governments can shut down houses of worship while leaving secular activities like
shopping malls broadly open, only to have the question come before it again when
government officials transparently attempt to evade the Court’s clear instructions
and lower courts refuse to step in.
Yet most governments, and most lower courts, have taken the Court’s rulings to
heart. At this point, the vast majority of states and municipalities do not regulate
worship with prohibitions, caps, or attendance limits, adopting a cooperative
approach instead. The few governments that had more restrictive rules have moved
away from them in response to Diocese of Brooklyn and South Bay II. For example,
as of today only Rhode Island and the District of Columbia still impose numerical
caps on attendance at worship services similar to those at issue in Diocese of
Brooklyn. Of the 16 states that impose percentage limits on attendance, the majority
(11) have moved to a percentage-of-occupancy limit of 50% or higher, including states
like Nevada that previously had both numerical caps and more restrictive percentage
limits. See Appendix. This should come as no surprise: The pandemic is ebbing, and
once extraordinary circumstances no longer obtain, governments should not be slow
to remove extraordinary restrictions on core First Amendment activities.
2
It is nevertheless crucial that the Court step in to stop Santa Clara County’s
unconstitutional behavior and ensure that the Ninth Circuit panel’s interpretation of
the law does not encourage other jurisdictions to ban indoor worship anew. If all it
takes to evade the Court’s rulings—at least in the Ninth Circuit—is a focus on one
order while ignoring the others, then governments can quickly gerrymander their
rules to maintain a veneer of neutrality and general applicability while severely
limiting religious activity. If Santa Clara County can be allowed to repackage its
worship ban, some other jurisdictions will immediately start to repackage as well.
Moreover, the realities on the ground—what Lukumi called “the effect of a law in
its real operation”—are almost indistinguishable from the situation in Brooklyn prior
to the Court’s decision in Diocese of Brooklyn. The same secular activities are open—
retail, acupuncture, factories—while churches and synagogues are closed. In fact, the
only appreciable difference is that the County bans worship completely, while New
York allowed 10 or 25 people to worship together. The County’s “present
determination—that the maximum number of adherents who can safely worship in
the most cavernous cathedral is zero—appears to reflect not expertise or discretion,
but instead insufficient appreciation or consideration of the interests at stake.” South
Bay II, 141 S. Ct. at 717 (Roberts, C.J., concurring).
The bottom line is that thousands of Catholics in Santa Clara County, along with
worshippers of other faiths, should be able to go to church, while observing the same
masking and distancing precautions that allow thousands of County residents to shop
in big box stores, get their nails done, and go to work. The County offers no plausible
3
reason why it must be the only worship-free zone in the nation. The Court should
enjoin the County’s worship ban, or summarily reverse.
ARGUMENT
I. The County’s orders flout Diocese of Brooklyn and South Bay II by
treating worship worse than a host of secular activities.
Because the County’s COVID orders allow a host of secular activities while
banning indoor worship altogether, they trigger strict scrutiny under Diocese of
Brooklyn and South Bay II. Indeed, “the regulations cannot be viewed as neutral
because they single out houses of worship for especially harsh treatment.” Diocese of
Brooklyn, 141 S. Ct. at 66. That ought to have been enough to stop the County from
banning worship, especially since the Court just days before had thrown out
California’s state-level worship ban as an indisputably clear violation of the
Constitution. See South Bay II, 141 S. Ct. 716, 716.
Yet the County persists. It justifies its openly differential treatment of secular
activities and worship on two main grounds, both designed to evade the searching
review required by the Free Exercise Clause.
1. First, the County asks courts to view the Gatherings Directive in splendid
isolation, not looking beyond the four corners of that order. See Opp’n, Gateway City
Church v. Newsom, No. 21-15189 at 1 (9th Cir. Feb. 12, 2021) (describing dispute as
concerning County’s “content-neutral restrictions prohibiting indoor gatherings of all
kinds”); see also Order, Gateway City Church v. Newsom, No. 21-15189 at 2 (9th Cir.
Feb. 12, 2021) (upholding regulations because it saw the Gatherings Directive as an
“across-the-board” ban).
4
But that is not how the Free Exercise Clause works. Free Exercise Clause analysis
instead looks to the entire regulatory context to determine whether there has been
differential treatment. See Church of the Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520, 534-540 (1993). In Lukumi the Court looked at several municipal
ordinances “in tandem,” recognizing that each one was part of a broader regulatory
scheme that operated to “suppress Santeria religious worship.” Id. at 535, 540. The
Court expressly rejected Hialeah’s invitation to view each ordinance in isolation: “We
need not decide whether the Ordinance 87–72 could survive constitutional scrutiny if
it existed separately; it must be invalidated because it functions, with the rest of the
enactments in question, to suppress Santeria religious worship.” Id. at 540.
Most importantly, in Lukumi the Court reviewed the challenged rules in the
context of other Hialeah ordinances and even hypothetical ordinances that the Court
said Hialeah could have enacted to further its proffered interests while preserving
Santería worship. For example, the Court noted an exception to one of the ordinances
“if the activity is permitted by zoning and other laws”; that exception “contribute[d]
to the gerrymander.” 508 U.S. at 536, 537. Similarly, “governmental interests in
protecting the public health and preventing cruelty to animals could be addressed by
restrictions stopping far short of a flat prohibition of all Santeria sacrificial practice.”
Id. at 538. See also ibid. (“city could have imposed a general regulation on the disposal
of organic garbage”). The Court took the same approach in Diocese of Brooklyn,
looking not just to the challenged Executive Order, but also the treatment of other
entities within the “red” and “orange” zones. See Diocese of Brooklyn, 141 S. Ct. at 66
5
(discussing executive orders and guidance other than the challenged Executive Order
202.68).
Looking at the entire context is also common sense. If governments could simply
divide up a challenged regulatory regime into discrete categories that are never
examined together, then it would be easy to create a facially neutral class that
includes the disfavored activity, treat that class worse than other activities, and still
profess neutrality. Particularly in a fast-moving and iterative regulatory process like
COVID health orders, that would give government officials a way to stay one step
ahead of the courts’ review. And since “categories of selection are of paramount
concern when a law has the incidental effect of burdening religious practice,” courts
must look at the entire regulatory scheme. Lukumi, 508 U.S. at 542. Put another way,
a rule cannot be valid as “across the board” if the government gets to decide how long
the board is and resizes it frequently. Order, Gateway City Church, No. 21-15189 at
2. 2
Here, the County’s COVID orders, taken as a whole, “single out houses of worship
for especially harsh treatment.” Diocese of Brooklyn, 141 S. Ct. at 66. Just as in New
York, the County’s orders specifically allow acupuncture facilities, campgrounds,
garages, manufacturing facilities, transportation facilities, and retail—including
large shopping malls—to open. See ibid. And just as with California’s statewide
Arguably the neutrality and general applicability standards invite government officials to test the
courts in just such an iterative process, because many lower courts have interpreted those standards
to locate the gravamen of Free Exercise analysis at the level of rules rather than at the level of realworld effects. But the Court need not address that issue to resolve this application in favor of
Applicants, or to send a clear message to government officials and the lower courts that repackaging
will not do.
2
6
worship ban, the County allows most retail operations to proceed indoors. See South
Bay II, 141 S. Ct. at 717 (statement of Gorsuch, J.). That the County bans worship
with one order and allows these other secular activities with others is immaterial.
The County assures religious believers that the County’s COVID orders in their
majestic equality forbid “gatherings” at malls, hair salons, and churches alike. See
Opp’n, Gateway City Church, No. 21-15189 at 11-12. This is a semantic game. People
gather to get their nails done, shop at the mall, operate machines in a factory, or work
in a law office. They are “in a single space” “at the same time” and are acting “in a
coordinated fashion.” Application at 7 (quoting Gatherings Directive). The County’s
claim that these secular activities are not “coordinated” but worship services are
“coordinated” is irrational.
Indeed, many of these activities are conducted with far closer contact between
people of different households than is the case at houses of worship. Masked, sociallydistanced families sitting in every other pew at church are much further away from
each other than the hairdresser is from the customer, and the hairdresser comes into
direct contact with many more people, on more days of the week. That the County
treats the rituals of the hair salon as less “coordinated” than the rituals of worship
does not change how people in fact interact. Nor is there any argument that worship
services are inherently lengthier than interactions at the factory, office, or shopping
mall. The typical workday lasts eight hours, and shoppers can stay for hours at the
mall. And if length of time were truly the County’s concern, the County would have
issued a rule regulating the time spent at any venue, rather than ban worship
7
services and other assemblies while allowing people who are shopping or working to
be in the same place for an unlimited period of time.
2. Second, the County has also asked the courts to look only at the text of the
orders to determine whether they were unconstitutional. Opp’n, Gateway City
Church, No. 21-15189 at 12 (“[T]he directive applies uniformly to a type of activity—
‘gatherings’—not a type of facility.”). But the Free Exercise Clause also enjoins courts
to look beyond “the text of the laws at issue” to what their real-world practical effects
are. Lukumi, 508 U.S. at 534. Thus Lukumi examined how the challenged regulations
played out in practice, or what Lukumi called “the effect of a law in its real operation,”
to determine whether there had been differential treatment. 508 U.S. at 535.
Here, the real operation of the County’s rules is almost indistinguishable from the
real operation of New York’s rules. The Stanford Shopping Center and the Great Mall
in Milpitas are open. Cf. Diocese of Brooklyn, 141 S. Ct. at 66. Factories such as the
Frost Cupcake Factory in San José are open and running.3 Cf. ibid. Transportation
facilities such as train stations and airports are also open.4 Cf. ibid.5 In fact, the only
significant on-the-ground difference between Santa Clara County today and Brooklyn
in early November is that the County bans all worship, while New York at least let
10 or 25 people into Brooklyn synagogues.
See Official Inspection Report, County of Santa Clara Department of Environmental Health (Feb.
3, 2021), https://perma.cc/SLZ4-LJZJ.
3
Mandatory Directive on Capacity Limitations, Santa Clara County Public Health (Nov. 15, 2020),
https://perma.cc/9BP2-LZ4G (20% for public transit); Essential workforce, California for All,
https://perma.cc/T64L-ZLLD (listing airports as essential critical infrastructure).
4
The County’s attempt to cast blame on the federal government for its differential treatment of
groups of people in close proximity at airports does not comport with Free Exercise precedent. Hialeah
invoked both federal and Florida law, to no avail. See Lukumi, 508 U.S. at 539, 543-545.
5
8
Moreover, the County’s course of dealing throughout the pandemic serves only
to confirm that it is engaged in a “religious gerrymander” just like the ones in
Lukumi and Diocese of Brooklyn. Indeed, “the historical background of the decision
under challenge, the specific series of events leading to the enactment or official
policy in question, and the legislative or administrative history, including
contemporaneous statements made by members of the decisionmaking body” all
show that at every turn the County has had a bias towards suppressing worship.
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1731,
(2018) (quoting Lukumi, 508 U.S. at 540 (op. of Kennedy, J.)). The history is
unambiguous:
•
July 14: The County issued the first version of its “Mandatory Directive for
Gatherings,” which banned indoor worship services.6
•
August 28: The State issued the Blueprint for a Safer Economy. The County
was in Tier 1 but permitted indoor malls to reopen at 25% capacity.7
Meanwhile, indoor worship services remained prohibited.
•
September 8: The County moved from Tier 1 to Tier 2. Museums, zoos, and
aquariums were allowed to open indoors at 25% capacity. Gyms and fitness
centers were permitted to open indoors at 10% capacity. Indoor shopping malls
were allowed up to 50% capacity.8 Indoor worship services continued to be
prohibited.9
Mandatory Directive for Gatherings, Santa Clara County Public Health (July 14, 2020),
https://perma.cc/44RP-DQQ4.
6
Statement of the County of Santa Clara Public Health Department Regarding the State of
California’s New COVID-19 Regulatory Framework, Santa Clara County Public Health (Aug. 28,
2020), https://perma.cc/NQ3H-AHDQ; County of Santa Clara Moves to the Red Tier (Tier 2) on State’s
New COVID-19 Framework, Santa Clara County Public Health (Sept. 8, 2020), https://perma.cc/7Q6FRPH4.
7
County of Santa Clara Moves to the Red Tier (Tier 2) on State’s New COVID-19 Framework, Santa
Clara County Public Health (Sept. 8, 2020), https://perma.cc/7Q6F-RPH4.
8
Mandatory Directive for Gatherings, Santa Clara County Public Health (Sept. 8, 2020),
https://perma.cc/TS8J-M83V (“[W]orship services * * * may occur outdoors subject to the requirements
9
9
•
October 14: The County moved from Tier 2 to Tier 3 due to falling cases and
permitted indoor worship services for the first time at 25% capacity or 100
people, whichever was fewer. Indoor museums and zoos had their capacity
limitations increased from 25% to 50%. Malls and other retail businesses were
no longer subject to any capacity limitations.10
•
November 15: Following a rise in cases, the County moved directly from Tier
3 to Tier 1 and banned all indoor worship services in accordance with
California’s Blueprint restrictions, effective November 17.11
•
January 29: The district court denied Plaintiffs’ motion for a preliminary
injunction against the total prohibition on indoor worship.12
•
February 5: The Supreme Court issued South Bay II, enjoining California’s
ban on indoor worship.
•
February 6: In response to South Bay II, California amended the Blueprint
to allow indoor worship services at 25% capacity in Tiers 1 and 2.13
•
February 8: The County initially acquiesced, issuing a public statement
explaining that “[i]ndoor worship services may resume in Santa Clara County
at 20% of a facility’s capacity.”14 That same day, the district court granted
Plaintiffs’ emergency motion to enjoin the prohibitions on indoor worship
pending Plaintiffs’ interlocutory appeal to the Ninth Circuit.15
•
February 9: The County filed a motion for reconsideration regarding the
district court’s February 8 order.16
•
February 10: The district court stayed its February 8 ruling and set argument
on the County’s reconsideration motion for March 19.17
of this Directive, but they may not occur indoors.”).
County of Santa Clara Moves Into State’s Orange Tier, Santa Clara County Public Health (Oct. 13,
2020), https://perma.cc/2CEL-FDGN.
10
Santa Clara County Moving into State’s Purple Tier as COVID-19 Cases and Hospitalizations Rise
Locally, Santa Clara County Public Health (Nov. 16, 2020), https://perma.cc/JH42-JLPL.
11
12
Gateway City Church v. Newsom, No. 20-cv-8241, ECF 64 (N.D. Cal. Jan. 29, 2021).
13
Industry guidance to reduce risk, California for All, https://perma.cc/E724-UP5B.
Statement Regarding Indoor Worship Services, Santa Clara County Public Health (Feb. 8, 2021),
https://perma.cc/2RQK-E3NX.
14
15
Gateway City Church v. Newsom, No. 20-cv-8241, ECF 75 (N.D. Cal. Feb. 8, 2021).
16
Gateway City Church v. Newsom, No. 20-cv-8241, ECF 76 (N.D. Cal. Feb. 9, 2021).
17
Gateway City Church v. Newsom, No. 20-cv-8241, ECF 79 (N.D. Cal. Feb. 10, 2021).
10
•
February 11: In light of the district court’s stay, and despite its earlier
statement, the County announced that the total prohibition on indoor worship
services remained in effect.18
•
February 11: Gateway plaintiffs sought emergency injunction pending appeal
at the Ninth Circuit.
•
February 12: Ninth Circuit motions panel issued its ruling.
As this history shows, at each stage of the pandemic, the County has treated
worship worse than secular activities ranging from malls, aquariums, museums, hair
salons, nail salons, pet grooming services, factories, and offices. Under Lukumi and
Diocese of Brooklyn, the “real operation” of the County’s suite of COVID orders has
consistently subjected worship services to “especially harsh treatment.” Lukumi, 508
U.S. at 535; Diocese of Brooklyn, 141 S. Ct. at 66; see also South Bay II, 141 S. Ct. at
719 (statement of Gorsuch, J.) (“California singles out religion for worse treatment
than many secular activities”). Strict scrutiny therefore applies.
3. The County cannot survive strict scrutiny. The County makes no effort to
explain why it knows better than every state government in the country, none of
which ban worship altogether. See Appendix (catalogue of state-level restrictions on
indoor worship); COVID-19 and Religious Liberty, Becket Fund for Religious Liberty,
https://www.becketlaw.org/covid-19-religious-worship (map depicting current statelevel restrictions). That “suggests that the [County] could satisfy its [public health]
concerns through a means less restrictive” than its current prohibition. Holt v. Hobbs,
574 U.S. 352, 368-369 (2015). County officials must therefore demonstrate, not just
Statement Regarding Indoor Worship Services, Santa Clara County Public Health (Feb. 11, 2021),
https://perma.cc/X44A-Q5PP.
18
11
“assume[,]” that “a plausible, less restrictive alternative would be ineffective” when
their preferred approach burdens religion. Holt, 574 U.S. at 369. Since the County
makes no effort to do so, it fails strict scrutiny.
II. The Court should recognize a presumption against severe restrictions on
worship.
Because some governments and lower courts have been reluctant to implement
this Court’s rulings, the Court should expressly recognize what Diocese of Brooklyn
and South Bay II implicitly hold: severe restrictions on worship are presumptively
invalid under the First Amendment. Worship bans like Santa Clara County’s should
always undergo strict scrutiny, just as bans on other core First Amendment
activities such as freedom of speech and freedom of the press typically require
constitutional intervention.19 The text of the First Amendment betrays no hierarchy
of freedoms, or, if the sequence of First Amendment freedoms matters, religious
liberty is listed first. See U.S. Const. amend I.20
Without such a presumption of invalidity, the Court may well face more worship
restriction cases in the future, in this emergency or another. It is a fact of modern
American life that in some places and times, there is political hay to be made from
See Board of Airport Comm’rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 575
(1987) (speech ban overbroad where it was “obvious that such a ban cannot be justified even if LAX
were a nonpublic forum because no conceivable governmental interest would justify such an absolute
prohibition of speech.”); Oklahoma Pub. Co. v. District Court In & For Oklahoma Cty., 430 U.S. 308,
310 (1977) (“[T]he press may not be prohibited from truthfully publishing information released to the
public in official court records.” (quotation marks omitted)).
19
In striking contrast to their treatment of religious exercise, governments have from the very
beginning of the pandemic uniformly treated media organizations as “essential” and thus exempt from
COVID orders. See, e.g., Order of the Health Officer of Santa Clara County, Santa Clara County Public
Health, at 10.f.v. (March 16, 2020), https://perma.cc/L8NY-VX4N (exempting “[n]ewspapers,
television, radio, and other media services”).
20
12
suppressing religion. That creates a perverse incentive for governments large and
small to try their luck with facially neutral restrictions in hopes that the courts “can’t
catch them all.” But the whole point of constitutional protections—particularly ones
in the Bill of Rights—is to put them beyond the political hurly-burly. “[T]he First
Amendment to our Constitution was designed to avoid these ends by avoiding these
beginnings.” West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
In crafting relief, the Court should take care that “these beginnings” never begin
again.21
CONCLUSION
The Court should either issue an injunction or grant certiorari and summarily
reverse.
Respectfully submitted.
ERIC C. RASSBACH
Counsel of Record
DANIEL L. CHEN
THE BECKET FUND FOR
RELIGIOUS LIBERTY
1919 Penn. Ave. NW
Suite 400
Washington, D.C. 20006
erassbach@becketlaw.org
Counsel for Amicus Curiae
FEBRUARY 2021
Summary reversal may be appropriate. “[T]he Court has not shied away from summarily
deciding * * * cases where, as here, lower courts have egregiously misapplied settled law.” Wearry v.
Cain, 136 S. Ct. 1002, 1007 (2016). Given the County’s pattern of maltreating worship, the Court could
also enjoin the County from promulgating restrictions on worship any greater than those required by
the State.
21
13
APPENDIX
State
Weblink for COVID-19 Restrictions on Indoor Worship
as of February 23, 2021
Alabama
https://www.alabamapublichealth.gov/covid19/assets/cov-sahworship.pdf (referred to in January 21, 2021 Order, available at
https://www.alabamapublichealth.gov/legal/assets/order-adph-covgatherings-012121.pdf)
Alaska
https://covid19.alaska.gov/wp-content/uploads/2020/05/05222020Phase-III-IV-016-Attachment-N-Revised-Social-Religious-andOther-Gatherings.pdf
Arizona
https://azgovernor.gov/file/36633/download?token=WdLo2rxL
Arkansas
https://www.healthy.arkansas.gov/images/uploads/pdf/guidance
_places_of_worship.pdf (referenced in Executive Order 20-53,
available at https://governor.arkansas.gov/images/uploads/
executiveOrders/EO_20-53.pdf)
California
https://covid19.ca.gov/industry-guidance/#worship
Colorado
https://drive.google.com/file/d/1ZeHik4-YQxDJqIdgFvc5yqheqIZpd
VTU/view
Connecticut
https://portal.ct.gov/-/media/Office-of-the-Governor/ExecutiveOrders/Lamont-Executive-Orders/Executive-Order-No-10.pdf
District of
Columbia
https://coronavirus.dc.gov/sites/default/files/dc/sites/coronavirus/
page_content/attachments/Mayor%27s%20Order%202020-126%
2012-16-2020.pdf
Delaware
https://governor.delaware.gov/health-soe/twenty-seventhmodification-state-of-emergency-declaration/
Florida
https://www.flgov.com/wp-content/uploads/orders/2020/EO_20-91compressed.pdf (as extended and modified by Executive Orders
20-112, 120, 123, 139, 166, 213, 244, 276, 297, and 316)
Georgia
https://gov.georgia.gov/document/2020-proclamation/executiveorder-04202001-handout/download
Hawaii
https://hawaiicovid19.com/safe-gatherings/
Idaho
https://rebound.idaho.gov/wp-content/uploads/stage3-stayhealthy-guidelines-020221.pdf
Illinois
https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder
2021-03.aspx (as extended by Executive Order 2021-04, available
at https://www2.illinois.gov/Pages/Executive-Orders/Executive
Order2021-04.aspx).
A-1
Indiana
https://www.in.gov/gov/files/Executive-Order-21-02-ThirdExtension-of-County-Based-Restrictions.pdf
Iowa
https://governor.iowa.gov/sites/default/files/documents/Public
%20Health%20Proclamation%20-%202021.02.05.pdf
Kansas
https://www.coronavirus.kdheks.gov/DocumentCenter/View/
1057/Plan-to-Reopen-Kansas-Framework-PDF---Full-Plan---5--2620 (Phase Three)
Kentucky
https://govsite-assets.s3.amazonaws.com/r00brFxTl2TJkofBUZUh
_Healthy%20at%20Work%20Reqs%20-%20Places%20of%20
Worship%20-%20Final%20Version%202.0%20Final.pdf (as
referenced by Executive Order 2020-1034, available at
http://web.sos.ky.gov/execjournalimages/2020-MISC-270558.pdf)
Louisiana
https://gov.louisiana.gov/assets/Proclamations/2021/17-JBE-2021State-of-Emergency-Renewing-COVID-19-Resilient-Louisiana.pdf
Maine
https://www.maine.gov/governor/mills/sites/maine.gov.governor.
mills/files/inline-files/EO%2031%2087.pdf
Maryland
https://governor.maryland.gov/wp-content/uploads/2021/01/
Gatherings-18th-AMENDED-01.28.21.pdf
Massachusetts https://www.mass.gov/info-details/safety-standards-and-checklistplaces-of-worship#occupancy-limitationsMichigan
https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455551407--,00.html
Minnesota
https://mn.gov/governor/assets/Executive%20Order%2021-01%20
Signed%20and%20Filed_tcm1055-462272.pdf (as extended by
Executive Order 21-08, available at https://mn.gov/governor/
assets/EO%2021-08%20Final%20Signed%20and%20Filed_tcm
1055-468348.pdf)
Mississippi
https://www.sos.ms.gov/content/executiveorders/ExecutiveOrders/
1535.pdf (as extended and modified by Executive Order No. 1543,
available at https://www.msema.org/wp-content/uploads/2021/02/
1543.pdf)
Missouri
https://showmestrong.mo.gov/faq/
Montana
https://covid19.mt.gov/_docs/2-12-2021-Directive.pdf
Nebraska
http://dhhs.ne.gov/Documents/DHM-Measure-Table-ENGLISH.
Nevada
https://gov.nv.gov/News/Emergency_Orders/2021/2021-02-14__COVID-19_Emergency_Declaration_Directive_037_
(Attachments)/
A-2
New
Hampshire
https://www.covidguidance.nh.gov/sites/g/files/ehbemt381/files/
inline-documents/2020-05/guidance-worship.pdf
New Jersey
https://nj.gov/infobank/eo/056murphy/pdf/EO-225.pdf
New Mexico
https://cv.nmhealth.org/wp-content/uploads/2021/01/Governors
Office@state.nm_.us_20210129_161525.pdf
New York
https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/
files/ReligiousandFuneralServicesSummaryGuidance.pdf
North
Carolina
https://files.nc.gov/governor/documents/files/EO181-ModifiedStay-at-Home-Early-Closure-Order.pdf (as extended by Executive
Order 189, available at https://files.nc.gov/governor/documents/
files/EO189-Further-Extension-of-Stay-at-Home-Order.pdf)
North Dakota
https://www.governor.nd.gov/sites/www/files/documents/Executive
%20Order%202020-43.4%20-%20Restaurant%20and%20bar%20
capacity%20limits.pdf (as modified by Executive Order 2020-43.5,
available at https://www.governor.nd.gov/sites/www/files/
documents/Executive%20Order%202020-43.5.pdf)
Ohio
https://coronavirus.ohio.gov/static/publicorders/limit-prohibitmass-gatherings-ohio-rev-order-reader.pdf
Oklahoma
https://www.sos.ok.gov/documents/executive/1984.pdf
Oregon
https://sharedsystems.dhsoha.state.or.us/DHSForms/Served/
le3461.pdf (incorporated by Executive Order 66, available at
https://www.oregon.gov/gov/Documents/executive_orders/eo_2066.pdf, and extended by Executive Order 67, available at
https://www.oregon.gov/gov/Documents/executive_orders/eo_2067.pdf)
Pennsylvania
https://www.governor.pa.gov/wp-content/uploads/2020/11/2020
1123-TWW-mitigation-enforcement-immunity-order.pdf
(reinstated after expiration of December 10, 2020 Order, available
at https://www.governor.pa.gov/wp-content/uploads/2020/12/2020
1210-TWW-Limited-Time-Mitigation-Order.pdf)
Rhode Island
https://governor.ri.gov/documents/orders/Executive-Order-2113.pdf
South
Carolina
https://governor.sc.gov/sites/default/files/Documents/2020-11-25%
20FILED%20Executive%20Order%20No.%202020-73%20-%20
Modifying%20%20Amending%20Emergency%20Measures.pdf (as
extended by Executive Orders 2020-75, 77; 2021-03, 07, 08, 10)
South Dakota
https://doh.sd.gov/documents/COVID19/ChurchesandOther
ReligiousGatherings.pdf
A-3
Tennessee
https://publications.tnsosfiles.com/pub/execorders/exec-orderslee70.pdf (as modified and extended by Executive Order 74,
available at https://publications.tnsosfiles.com/pub/execorders/
exec-orders-lee74.pdf)
Texas
https://gov.texas.gov/uploads/files/press/EO-GA-32_continued_
response_to_COVID-19_IMAGE_10-07-2020.pdf
Utah
https://coronavirus-download.utah.gov/Health/UPHO_20215_Updated_Statewide_COVID-19_Restrictions.pdf
Vermont
https://accd.vermont.gov/news/update-new-work-safe-additionsbe-smart-stay-safe-order#religious-facilities-and-places-of-worship
Virginia
https://www.governor.virginia.gov/media/governorvirginiagov/
executive-actions/EO-72-SECOND-AMENDED-and-Order-ofPublic-Health-Emergency-Nine-Commonsense-SurgeRestrictions-Due-to-Novel-Coronavirus-(COVID-19).pdf
Washington
https://www.governor.wa.gov/sites/default/files/COVID19%20
Religious%20and%20Faith%20Based%20Organization%20
Guidance.pdf
West Virginia
https://coronavirus-wvgovstatus-cdn.azureedge.net/STAY_AT_
HOME_ORDER.pdf
Wisconsin
https://www.dhs.wisconsin.gov/covid-19/community.htm (under
Faith-Based Organizations)
Wyoming
https://health.wyo.gov/wp-content/uploads/2021/02/Order2_21st
Continuation_Feb112021.pdf
A-4
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.