Amicus Curiae Brief — Harvest Rock Church, Inc., et al., Applicants v. Gavin Newsom, Governor of California

Supreme Court briefNov 25, 2020

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No. 20A94

HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY, INC., ITSELF AND

ON BEHALF OF ITS MEMBER CHURCHES IN CALIFORNIA,

Applicants,

GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF CALIFORNIA,

Respondent.

On Emergency Application for Writ of Injunction to the Honorable Elena

Kagan, Associate Justice of the United States Supreme Court and Circuit

Justice for the Ninth Circuit

MOTION BY RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS, WITH

ATTACHED PROPOSED AMICUS CURIAE BRIEF IN SUPPORT OF

RESPONDENT AND IN OPPOSITION TO EMERGENCY APPLICATION

FOR WRIT OF INJUNCTION, FOR LEAVE (1) TO FILE THE BRIEF , (2) TO

DO SO IN AN UNBOUND FORMAT ON 8½-BY-11-INCH PAPER, AND (3)

TO DO SO WITHOUT TEN DAYS’ ADVANCE NOTICE TO THE PARTIES

RICHARD B. KATSKEE

ALEX J. LUCHENITSER

Counsel of Record

SARAH R. GOETZ

Americans United for Separation of

Church and State

1310 L St. NW, Ste. 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

Counsel for Amici Curiae

MOTION FOR LEAVE (1) TO FILE AMICUS CURIAE BRIEF OF

RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS IN SUPPORT OF

RESPONDENT AND IN OPPOSITION TO EMERGENCY APPLICATION

FOR WRIT OF INJUNCTION, (2) TO DO SO IN AN UNBOUND FORMAT

ON 8½-BY-11-INCH PAPER, AND (3) TO DO SO WITHOUT TEN DAYS’

ADVANCE NOTICE TO THE PARTIES1

Movants, religious and civil-rights organizations that share a commitment to

preserving the constitutional principles of religious freedom and the separation of

religion and government, respectfully request leave of the Court to (1) file the

attached amicus curiae brief in support of respondent and in opposition to applicants’

emergency application for a writ of injunction, (2) file the brief in an unbound format

on 8½-by-11-inch paper, and (3) file the brief without ten days’ advance notice to the

parties.

Positions of the Parties

Applicants oppose this motion. Respondent consent to this motion.

Identities of Amici; Rule 29.6 Statement

All the proposed amici are nonprofit organizations that have no parent

corporations and that are not owned, in whole or in part, by any publicly held

corporation. The proposed amici are:



Americans United for Separation of Church and State.



Bend the Arc: A Jewish Partnership for Justice.



Covenant Network of Presbyterians.



Disciples Center for Public Witness.

No counsel for a party authored this motion or the proposed amicus brief in whole

or in part, and no person other than amici, their members, or their counsel made a

monetary contribution to fund the motion’s or brief’s preparation or submission.



Disciples Justice Action Network.



Equal Partners in Faith.



Interfaith Alliance Foundation.



Methodist Federation for Social Action.



Reconstructionist Rabbinical Association.

Interests of Amici; Summary of Brief2

Applicants contend that application of California’s COVID-19-related publichealth restrictions to their religious gatherings violates the Free Exercise Clause of

the First Amendment to the U.S. Constitution. The proposed brief would bring to the

Court’s attention the perspectives of other religious institutions and clergy on the

matter.

The brief explains that the proposed amici believe that the right to worship

freely is precious and should never be misused to cause harm. And this Court has

never mandated a religious exemption under the Free Exercise Clause when doing so

would inflict substantial harm on people beyond the individual or entity invoking the

Clause. Yet granting the injunction requested by applicants would do exactly that.

The religious organizations among the proposed amici know from long experience

that in-person religious services inherently entail close and sustained human

interactions that present substantial risks of COVID-19 transmission—not only to

congregants, but also to people in the wider community. Measures that help control

2 The proposed brief is substantially similar to the briefs submitted by the same

proposed amici in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87 (docketed

Nov. 12, 2020), and Agudath Israel of America v. Cuomo, No. 20A90 (docketed Nov.

16, 2020). The primary differences are in the factual discussion in Part B.2.

the pandemic now will aid religious exercise by enabling safe resumption of regular

worship services sooner.

The brief further explains that this Court has never concluded that there was

discrimination against religion in violation of the Free Exercise Clause when

government drew distinctions—without antireligious animus—based on objective,

secular criteria. That is what California has done here, relying on epidemiological

analysis tailored to the specific characteristics of activities and entities. Incorrectly

treating California’s conduct as discriminatory and granting the injunction that

applicants request would harm religious institutions, their congregants, and religion

in general by linking them with, and causing them to be blamed for, the avoidable

suffering and death that would result from limiting California’s efforts to thwart the

pandemic.

Format and Timing of Filing

Applicants filed their emergency application on November 23, 2020. In light of

the November 28, 2020 deadline that the proposed amici understand has been set for

responding to the application, there was insufficient time for the proposed amici to

prepare their brief for printing and filing in booklet form, as ordinarily required by

Supreme Court Rule 33.1. Nor, for the same reason, were the proposed amici able to

provide the parties with ten days’ notice of their intent to file the attached brief, as

ordinarily required by Rule 37.2(a). But the proposed amici did provide notice of their

intent to file the brief to the parties on November 20 and 21, 2020, promptly after

seeing a press release that applicants issued about the submission of their emergency

application to the Court.

*****

For the foregoing reasons, the proposed amici respectfully request that the

Court grant this motion to file the attached proposed amicus brief and accept it in the

format and at the time submitted.

Respectfully submitted.

________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ____

RICHARD B. KATSKEE

ALEX J. LUCHENITSER

Counsel of Record

SARAH R. GOETZ

Americans United for Separation

of Church and State

1310 L St. NW, Ste. 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

Counsel for Amici Curiae

NOVEMBER 2020

No. 20A94

HARVEST ROCK CHURCH, INC.; HARVEST INTERNATIONAL MINISTRY, INC.,

ITSELF AND ON BEHALF OF ITS MEMBER CHURCHES IN CALIFORNIA,

Applicants,

GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF CALIFORNIA,

Respondent.

On Emergency Application for Writ of Injunction to the Honorable

Elena Kagan, Associate Justice of the United States Supreme Court

and Circuit Justice for the Ninth Circuit

BRIEF OF RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

AND IN OPPOSITION TO EMERGENCY APPLICATION

FOR WRIT OF INJUNCTION

RICHARD B. KATSKEE

ALEX J. LUCHENITSER

Counsel of Record

SARAH R. GOETZ

Americans United for

Separation of Church and

State

1310 L St. NW, Ste. 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................... ii

INTERESTS OF THE AMICI CURIAE........................................................................ 1

INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 3

ARGUMENT .................................................................................................................. 5

A. The Free Exercise Clause does not require a religious exemption here

because granting one would gravely harm numerous people ........................... 5

1. This Court has never granted an exemption under the Free Exercise

Clause when doing so would inflict substantial harm on people

beyond the applicant ..................................................................................... 5

2. Requiring a religious exemption from California’s Guidance would

inflict severe harm on countless other people .............................................. 9

B. California’s Guidance does not discriminate against religion ........................ 13

1. Distinctions based on objective scientific analysis rather than

religious status or animus are not religious discrimination ...................... 13

2. California’s Guidance is not motivated by antireligious animus and

does not discriminate against religious institutions based on status ....... 15

CONCLUSION............................................................................................................. 19

TABLE OF AUTHORITIES

Page(s)

CASES

Agudath Israel of America v. Cuomo,

No. 20A90 (docketed Nov. 16, 2020) ........................................................................ 3

Application of President & Dirs. of Georgetown Coll., Inc.,

331 F.2d 1000 (D.C. Cir. 1964)................................................................................. 7

Ashcroft v. ACLU,

542 U.S. 656 (2004) ................................................................................................ 12

Braunfeld v. Brown,

366 U.S. 599 (1961) ........................................................................................ 5, 6, 14

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) .......................................................................................... 13, 15

Elim Romanian Pentecostal Church v. Pritzker,

962 F.3d 341 (7th Cir. 2020) .................................................................................. 19

Espinoza v. Montana Dep’t of Revenue,

140 S. Ct. 2246 (2020) ...................................................................................... 13, 14

Gallagher v. Crown Kosher Super Mkt. of Mass., Inc.,

366 U.S. 617 (1961) ................................................................................................ 14

Hannibal & St. Joseph R.R. Co. v. Husen,

95 U.S. 465 (1877) .................................................................................................... 6

Hernandez v. Commissioner,

490 U.S. 680 (1989) .......................................................................................... 14, 15

Hosanna-Tabor Lutheran Evangelical Church & Sch. v. EEOC,

565 U.S. 171 (2012) .................................................................................................. 8

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ................................................................................................ 6, 7

Lyng v. Northwest Indian Cemetery Protective Ass’n,

485 U.S. 439 (1988) .................................................................................................. 5

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Commission,

138 S. Ct. 1719 (2018) ...................................................................................... 13, 16

TABLE OF AUTHORITIES—continued

Page(s)

McDaniel v. Paty,

435 U.S. 618 (1978) ................................................................................................ 14

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020) .......................................................................................... 5, 8

Prince v. Massachusetts,

321 U.S. 158 (1944) .............................................................................................. 6, 7

Roman Catholic Diocese of Brooklyn v. Cuomo,

No. 20A87 (docketed Nov. 12, 2020) ........................................................................ 3

Sherbert v. Verner,

374 U.S. 398 (1963) .............................................................................................. 7, 8

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) ...................................................................................... 13, 14

Two Guys From Harrison-Allentown, Inc. v. McGinley,

366 U.S. 582 (1961) ................................................................................................ 14

United States v. Lee,

455 U.S. 252 (1982) .................................................................................................. 5

Wisconsin v. Yoder,

406 U.S. 205 (1972) .............................................................................................. 7, 8

Wright v. DeWitt Sch. Dist. No. 1,

385 S.W.2d 644 (Ark. 1965) ..................................................................................... 7

STATE ORDERS AND GUIDANCE

About COVID-19 Restrictions, COVID19.CA.GOV

(updated Nov. 23, 2020), https://bit.ly/2Bmgcb5 ................................. 15, 16, 17, 18

Blueprint for a Safer Economy, COVID19.CA.GOV

(updated Nov. 24, 2020), https://bit.ly/3jAoI7b ............................................... 16, 18

Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Places of

Worship and Providers of Religious Services & Cultural Ceremonies

(July 29, 2020), https://bit.ly/3fF534l .............................................................. 17, 18

Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Restaurants,

Bars, and Wineries (July 29, 2020), https://bit.ly/3k7T69z................................... 17

Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Schools and

School-Based Programs (Aug. 3, 2020), https://bit.ly/2FXK93C .......................... 17

iii

TABLE OF AUTHORITIES—continued

Page(s)

Essential Workforce, COVID19.CA.GOV (updated Sept. 22, 2020),

https://bit.ly/35kQalC ............................................................................................. 18

Industry Guidance to Reduce Risk, COVID19.CA.GOV

(updated Nov. 16, 2020), https://bit.ly/3lI7KG7 .............................................. 15, 16

MISCELLANEOUS

Alex Acquisto, This Central Kentucky Church Reopened on

May 10 and Became a COVID-19 Hot Spot, Lexington

Herald-Leader (June 6, 2020), https://bit.ly/3dDbQdq ......................................... 12

Christie Aschwanden, How ‘Superspreading’ Events Drive

Most COVID-19 Spread, Sci. Am. (June 23, 2020),

https://bit.ly/2Jkx71W .............................................................................................. 9

Trudy Balcom, COVID-19 Outbreak on the Navajo Nation

Linked to Church Rally, White Mountain Indep.

(Mar. 24, 2020), https://bit.ly/2YSR6di .................................................................. 11

Lateshia Beachum, Two Churches Reclose After Faith

Leaders and Congregants Get Coronavirus, Wash. Post

(May 19, 2020), https://wapo.st/2WQgW0x ........................................................... 12

Kaitlin McKinley Becker, More Than 200 COVID-19 Cases Linked

to Fitchburg Church, NBC10 Boston (Nov. 7, 2020),

https://bit.ly/2GK6Tox .............................................................................................. 9

Stephanie Becker, At Least 70 People Infected with Coronavirus

Linked to a Single Church in California, Health Officials Say,

CNN (Apr. 4, 2020), https://cnn.it/2NgYN6l ......................................................... 10

Timothy Bella, Places Without Social Distancing Have 35 Times

More Potential Coronavirus Spread, Study Finds, Wash. Post

(May 15, 2020), https://wapo.st/2EKDjhd................................................................ 3

Bill Bostock, Nearly 100 People in Ohio Got Sick After One Man

Infected with the Coronavirus Attended a Church Service,

Business Insider (Aug. 6, 2020), https://bit.ly/2Qi2eeF .......................................... 9

Shelly Bradbury, Fatal COVID-19 Outbreak Linked to Colorado

Religious Group Suing State over Limits on Gatherings,

Denver Post (Oct. 6, 2020), https://dpo.st/3k5nHVl .............................................. 12

TABLE OF AUTHORITIES—continued

Page(s)

Ryan Burns, A Redding Megachurch Leader Came to Humboldt

and Flouted Mask Rules; Her Ministry Is Now the Source of a

Major COVID Outbreak, Lost Coast Outpost (Oct. 13, 2020),

https://bit.ly/3m86USh ........................................................................................... 10

Sara Cline, Church Tied to Oregon’s Largest Coronavirus Outbreak,

AP (June 16, 2020), https://bit.ly/2YWFlT1 ...................................................... 9, 10

Kate Conger et al., Churches Were Eager to Reopen; Now They Are

Confronting Coronavirus Cases, N.Y. Times (July 10, 2020),

https://nyti.ms/30BOhgq ........................................................................................ 12

COVID-19 Dashboard, Ctr. for Sys. Sci. & Eng’g at Johns Hopkins

Univ. (last visited Nov. 24, 2020), https://bit.ly/31VrTAa ...................................... 3

Derek Dellinger, Charlotte Church Connected to Nearly 200 Cases of

COVID-19 Given Go-ahead to Open Some Locations, FOX46

Charlotte (Oct. 30, 2020), https://bit.ly/3pMJx3f .................................................... 9

Deuteronomy 30:19–20 ................................................................................................ 19

Chris Epp, ‘I Would Do Anything for a Do-Over’: Calgary Church

Hopes Others Learn from Their Tragic COVID-19 Experience,

CTV News (May 11, 2020), https://bit.ly/3dLUv2l ................................................ 12

Hilda Flores, One-Third of COVID-19 Cases in Sac County

Tied to Church Gatherings, Officials Say, KCRA

(Apr. 1, 2020), https://bit.ly/2XlCpPu .................................................................... 10

Eric Grossarth, Idaho Falls Church Revival Leads to 30 Confirmed

or Probable Cases of Coronavirus, Idaho Statesman (June 4, 2020),

https://bit.ly/3hZQnyI ............................................................................................. 10

Allison James et al., High COVID-19 Attack Rate Among Attendees

at Events at a Church—Arkansas, March 2020,

69 Morbidity & Mortality Wkly. Rep. 632 (2020),

https://bit.ly/3f6MYM2 ........................................................................................... 10

Johns Hopkins Bloomberg Sch. of Pub. Health Ctr. for Health Sec.,

Public Health Principles for a Phased Reopening During

COVID-19: Guidance for Governors (Apr. 17, 2020),

https://bit.ly/2CKc5qz ....................................................................................... 16, 17

T.Y.M. Leung et al., Short- and Potential Long-term Adverse

Health Outcomes of COVID-19: A Rapid Review,

9 Emerging Microbes & Infections 2190 (2020),

https://bit.ly/3ikjBXJ ................................................................................................ 3

TABLE OF AUTHORITIES—continued

Page(s)

Bailey Loosemore & Mandy McLaren, How a Church Revival in a

Small Kentucky Town Led to a Deadly Coronavirus Outbreak,

Louisville Courier-Journal (Apr. 3, 2020), https://bit.ly/2V1Jjrs ................... 10, 11

Wyatt Massey, Church of God Denomination Facing Significant

COVID-19 Outbreak; Leaders Won’t Say How Many Infected,

Chattanooga Times Free Press (July 7, 2020),

https://bit.ly/3bTiWLl ............................................................................................. 10

Christina Maxouris & Dakin Andone, US Coronavirus

Hospitalizations, New Cases Break Record for Second Straight Day,

CNN (Nov. 20, 2020), https://cnn.it/3nJFT8v.......................................................... 3

Nakia McNabb, At Least 18 West Virginia Covid-19 Outbreaks

Linked to Church Services, Governor Says, CNN

(Oct. 19, 2020), https://cnn.it/31CLODY.................................................................. 9

Rachel Needham, Anatomy of an Outbreak: New Documents

Reveal a Significant Number of the County’s COVID-19 Cases

Can Be Traced to Castleton Church, Rappahannock News

(Sept. 1, 2020), https://bit.ly/33hLAlG ................................................................... 10

Tara Parker-Pope, How Safe Are Outdoor Gatherings?, N.Y. Times

(July 3, 2020), https://nyti.ms/3j4fH6g ............................................................ 18, 19

Psalms 115:17 .............................................................................................................. 19

John Raby, Virus Outbreak Grows to 28 Cases at West Virginia

Church, AP (June 15, 2020), https://bit.ly/30WTqBm .......................................... 10

Richard Read, A Choir Decided to Go Ahead with Rehearsal;

Now Dozens of Members Have COVID-19 and Two Are Dead,

L.A. Times (Mar. 29, 2020), https://lat.ms/2yiLbU6 ............................................. 12

Lee Roop, A Small Alabama Church Had a Revival and Now

40 People Have Coronavirus, AL.com (July 27, 2020),

https://bit.ly/2Ekzsav.............................................................................................. 10

Joe Severino, COVID-19 Tore Through a Black Baptist

Church Community in WV; Nobody Said a Word About It,

Charleston Gazette-Mail (May 2, 2020), https://bit.ly/2SFVYyX ......................... 11

Renyi Zhang et al., Identifying Airborne Transmission

as the Dominant Route for the Spread of COVID-19,

117 PNAS 14,857 (2020), https://bit.ly/2HTGSnf............................................ 11, 12

BRIEF OF RELIGIOUS AND CIVIL-RIGHTS ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF RESPONDENT AND IN OPPOSITION

TO EMERGENCY APPLICATION FOR WRIT OF INJUNCTION

INTERESTS OF THE AMICI CURIAE1

Amici are religious and civil-rights organizations that share a commitment to

preserving the constitutional principles of religious freedom and the separation of

religion and government. They believe that the right to worship freely is precious and

should never be misused to cause harm.

Amici include religious organizations that recommend against holding inperson worship at this time, even if allowed under state law, as many of their

constituent members (including congregations and faith leaders) recognize that doing

so under current conditions is dangerous. The religious organizations among amici

know from long experience that in-person religious services inherently entail close

and sustained human interactions that present substantial risks of COVID-19

transmission—not only to congregants, but also to people in the wider community.

Measures that help control the pandemic now will aid religious exercise by enabling

safe resumption of regular worship services sooner. Applying to religious services

religion-neutral restrictions that govern all large gatherings protects the public

health and respects the Constitution.

1 No counsel for a party authored this brief in whole or in part, and no person other

than amici, their members, or their counsel made a monetary contribution to fund

the brief’s preparation or submission. This brief has been submitted with a motion

for leave to file it.

The amici are:



Americans United for Separation of Church and State.



Bend the Arc: A Jewish Partnership for Justice.



Covenant Network of Presbyterians.



Disciples Center for Public Witness.



Disciples Justice Action Network.



Equal Partners in Faith.



Interfaith Alliance Foundation.



Methodist Federation for Social Action.



Reconstructionist Rabbinical Association.

INTRODUCTION AND SUMMARY OF ARGUMENT 2

The country is in the midst of a devastating pandemic. More than 259,000

Americans, including nearly 19,000 Californians, have died from COVID-19. See

COVID-19 Dashboard, Ctr. for Sys. Sci. & Eng’g at Johns Hopkins Univ. (last visited

Nov. 24, 2020), https://bit.ly/31VrTAa. There is increasing evidence that a substantial

proportion of people who survive the disease suffer serious, long-term damage to their

health. See, e.g., T.Y.M. Leung et al., Short- and Potential Long-term Adverse Health

Outcomes of COVID-19: A Rapid Review, 9 Emerging Microbes & Infections 2190

(2020), https://bit.ly/3ikjBXJ. And across the country, the rates of infection are

surging higher than ever. See, e.g., Christina Maxouris & Dakin Andone, US

Coronavirus Hospitalizations, New Cases Break Record for Second Straight Day,

CNN (Nov. 20, 2020), https://cnn.it/3nJFT8v.

In response to this ongoing public-health emergency, California’s governor

issued a Guidance that restricts gatherings and business activities by establishing

capacity limits based on the severity of the outbreak in different geographical areas.

Similar restrictions have been successful in slowing the transmission of the virus.

See, e.g., Timothy Bella, Places Without Social Distancing Have 35 Times More

Potential Coronavirus Spread, Study Finds, Wash. Post (May 15, 2020),

https://wapo.st/2EKDjhd. And though California’s Guidance restricts worship

services, nonreligious gatherings are restricted to a greater or similar extent.

2 This brief is substantially similar to the briefs submitted by the same

amici in

Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87 (docketed Nov. 12, 2020),

and Agudath Israel of America v. Cuomo, No. 20A90 (docketed Nov. 16, 2020). The

primary differences are in the factual discussion in Part B.2.

Applicants nevertheless seek a broader religious exemption from the Guidance

under the Free Exercise Clause of the First Amendment. But this Court has never

mandated a religious exemption when doing so would inflict substantial harm on

people beyond the individual or entity invoking the Clause. Exempting religious

gatherings from California’s Guidance would do exactly that: A contagious person at

a religious service could infect fellow congregants, who may then expose family,

friends, and strangers, including numerous people who did not attend the event.

Nor has this Court ever concluded that there was discrimination against

religion in violation of the Free Exercise Clause when government drew distinctions

that were based not on hostility to religion but on legitimate, objective, secular

criteria. California has not acted with antireligious animus here. On the contrary, the

Guidance restricts religious gatherings less than or similarly to comparable

nonreligious gatherings. And as the district court found, California has legitimate,

science-based reasons for treating indoor gatherings such as indoor worship services,

lectures, and concerts differently from activities such as food production, grocery

shopping, and meeting outdoors.

The Court should not deviate from these settled principles of free-exercise law,

particularly in the context of a request for an emergency injunction, when the Court

does not have full merits briefing and the opportunity to give due consideration to the

legal questions in the normal course. Not only would granting the injunction that

applicants request inflict great harm on the many people who would become ill and

die as a result, but this misuse of the precious right of religious freedom would also

harm religious institutions, their congregants, and religion in general by linking

them with, and causing them to be blamed for, avoidable suffering and death.

ARGUMENT

The Free Exercise Clause does not require a religious exemption

here because granting one would gravely harm numerous

people.

This Court has never granted an exemption under the Free

Exercise Clause when doing so would inflict substantial harm on

people beyond the applicant.

The freedom to worship is a value of the highest order; and many people

naturally seek the comfort and support provided by faith communities in these

difficult times. But as this Court recently reaffirmed, the constitutional guarantee of

religious freedom “does not mean that religious institutions enjoy a general immunity

from secular laws.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049,

2060 (2020). For “government simply could not operate if it were required to satisfy

every citizen’s religious needs and desires.” Lyng v. Northwest Indian Cemetery

Protective Ass’n, 485 U.S. 439, 452 (1988).

The Court has thus repeatedly rejected free-exercise claims for religious

exemptions that would impose significant harms on third parties. In United States v.

Lee, for example, the Court denied an Amish employer’s request for an exemption

from paying Social Security taxes because the exemption would have “operate[d] to

impose the employer’s religious faith on the employees.” 455 U.S. 252, 261 (1982). In

Braunfeld v. Brown, the Court declined to grant an exemption from Sunday-closing

laws because it would have provided Jewish businesses with “an economic advantage

over their competitors who must remain closed on that day.” 366 U.S. 599, 608–609

(1961) (plurality opinion). And in Prince v. Massachusetts, the Court denied a request

for an exemption from child-labor laws to allow distribution of religious literature by

minors, because while “[p]arents may be free to become martyrs themselves * * * it

does not follow [that] they are free, in identical circumstances, to make martyrs of

their children.” 321 U.S. 158, 170 (1944). In short, as Justice Jackson separately

explained in Prince, “the limits [on religious exercise] begin to operate whenever

activities begin to affect or collide with liberties of others or of the public.” Id. at 177

(Jackson, J., concurring in the judgment).

In keeping with this jurisprudence, the Court has repeatedly acknowledged

that there is no right to religious exemptions from laws that, like California’s

Guidance, shield the public from illness. More than a century ago, in Jacobson v.

Massachusetts, 197 U.S. 11, 25 (1905), the Court upheld a mandatory-vaccination law

aimed at stopping the spread of smallpox. The Court explained that “[r]eal liberty for

all could not exist under the operation of a principle which recognizes the right of

each individual person to use his own [liberty] * * * regardless of the injury that may

be done to others.” See id. at 26. The Court straightforwardly rejected the view that

the Constitution bars compulsory measures to protect health, recognizing instead the

“fundamental principle” that personal liberty is subject to restraint “in order to secure

the * * * health * * * of the state.” Id. at 26 (quoting Hannibal & St. Joseph R.R. Co.

v. Husen, 95 U.S. 465, 471 (1877)). Because “a community has the right to protect

itself against an epidemic of disease which threatens the safety of its members,”

individual rights are defined and conditioned so as to ensure that government may

implement reasonable restrictions to protect the public health. Id. at 27.

Although Jacobson did not specifically consider a Free Exercise Clause

argument, perhaps because the Clause was not then applicable against the States,

several of the Court’s subsequent decisions have recognized that the principles of the

case apply in the free-exercise context as in all others. In Prince, for example, the

Court explained that one “cannot claim freedom from compulsory vaccination * * * on

religious grounds.” 321 U.S. at 166. For the “right to practice religion freely does not

include liberty to expose the community * * * to communicable disease.” Id. at 166–

167. In Sherbert v. Verner, 374 U.S. 398, 402–403 (1963), the Court, citing Jacobson

and Prince, noted that it “has rejected challenges under the Free Exercise Clause to

governmental regulation of certain overt acts prompted by religious beliefs or

principles” when “[t]he conduct or actions so regulated have invariably posed some

substantial threat to public safety, peace or order.” And in Wisconsin v. Yoder, 406

U.S. 205, 230 & n.20 (1972), the Court illustrated the principle that free-exercise

claims are denied when “harm to the physical or mental health * * * or to the public

safety, peace, order, or welfare has been demonstrated or may be properly inferred,”

with citations to a case rejecting a free-exercise challenge to a mandatory-vaccination

law (Wright v. DeWitt Sch. Dist. No. 1, 385 S.W.2d 644 (Ark. 1965)), a case rejecting

an attempt to use the Free Exercise Clause to block a lifesaving blood transfusion

(Application of President & Dirs. of Georgetown Coll., Inc., 331 F.2d 1000, 1007–1010

(D.C. Cir. 1964) (Wright, J., in chambers)), and Jacobson.

Except in one special context described in the next paragraph, the Court has

ruled in favor of Free Exercise Clause claimants only after confirming that no

substantial harm would be imposed on others. For instance, in holding that Amish

parents were entitled to an exemption from a compulsory-school-attendance law in

Yoder, the Court explained that “[t]he record strongly indicate[d] that accommodating

the religious objections of the Amish * * * will not impair the physical or mental

health of the child * * * or in any other way materially detract from the welfare of

society.” 406 U.S. at 234. Similarly, in holding that the Free Exercise Clause

prohibited the state in Sherbert from denying unemployment benefits to a SeventhDay Adventist because of her refusal to work on her Sabbath, the Court noted that

its ruling would not “serve to abridge any other person’s religious liberties” (374 U.S.

at 409) or otherwise significantly harm anyone (see id. at 406–409).

Only in cases concerning the ministerial exception—which recognize that the

Establishment

and

Free

Exercise

Clauses

together

prohibit

employment-

discrimination laws from being enforced in a manner that would interfere with a

church’s selection of ministerial employees—has the Court ever mandated a religious

exemption that would inflict meaningful harm on nonbeneficiaries (there, the

employees who lose their jobs). See Our Lady of Guadalupe, 140 S. Ct. at 2055;

Hosanna-Tabor Lutheran Evangelical Church & Sch. v. EEOC, 565 U.S. 171, 188

(2012). Those cases concerned core decisions of religious institutions that affect only

their internal structures and the people who voluntarily choose to join them. See

Hosanna-Tabor, 565 U.S. at 188 (“[T]he Free Exercise Clause * * * protects a

religious group’s right to shape its own faith and mission through its appointments.”).

This case presents a far different question: whether there is a constitutional right to

put countless people outside the congregation at greater risk of exposure to deadly

disease.

Requiring a religious exemption from California’s Guidance

would inflict severe harm on countless other people.

Exempting applicants from California’s emergency public-health measures

would subject not only their congregants but also everyone with whom they come into

contact—indeed, their entire communities—to serious and sometimes-fatal health

risks.

Indoor gatherings that bring together large groups of people for extended

periods are responsible for a substantial proportion of the spread of COVID-19. See,

e.g., Christie Aschwanden, How ‘Superspreading’ Events Drive Most COVID-19

Spread, Sci. Am. (June 23, 2020), https://bit.ly/2Jkx71W. And religious gatherings,

specifically, have led to numerous outbreaks and deaths. See, e.g., Nakia McNabb, At

Least 18 West Virginia Covid-19 Outbreaks Linked to Church Services, Governor

Says, CNN (Oct. 19, 2020), https://cnn.it/31CLODY; Kaitlin McKinley Becker, More

Than 200 COVID-19 Cases Linked to Fitchburg Church, NBC10 Boston (Nov. 7,

2020), https://bit.ly/2GK6Tox; Derek Dellinger, Charlotte Church Connected to Nearly

200 Cases of COVID-19 Given Go-ahead to Open Some Locations, FOX46 Charlotte

(Oct. 30, 2020), https://bit.ly/3pMJx3f; Bill Bostock, Nearly 100 People in Ohio Got

Sick After One Man Infected with the Coronavirus Attended a Church Service,

Business Insider (Aug. 6, 2020), https://bit.ly/2Qi2eeF; Sara Cline, Church Tied to

Oregon’s Largest Coronavirus Outbreak, AP (June 16, 2020), https://bit.ly/2YWFlT1;

Hilda Flores, One-Third of COVID-19 Cases in Sac County Tied to Church

Gatherings, Officials Say, KCRA (Apr. 1, 2020), https://bit.ly/2XlCpPu; Allison James

et al., High COVID-19 Attack Rate Among Attendees at Events at a Church—

Arkansas, March 2020, 69 Morbidity & Mortality Wkly. Rep. 632 (2020),

https://bit.ly/3f6MYM2; Stephanie Becker, At Least 70 People Infected with

Coronavirus Linked to a Single Church in California, Health Officials Say, CNN (Apr.

4, 2020), https://cnn.it/2NgYN6l; Lee Roop, A Small Alabama Church Had a Revival

and Now 40 People Have Coronavirus, AL.com (July 27, 2020), https://bit.ly/2Ekzsav;

Eric Grossarth, Idaho Falls Church Revival Leads to 30 Confirmed or Probable Cases

of Coronavirus, Idaho Statesman (June 4, 2020), https://bit.ly/3hZQnyI; John Raby,

Virus Outbreak Grows to 28 Cases at West Virginia Church, AP (June 15, 2020),

https://bit.ly/30WTqBm; Rachel Needham, Anatomy of an Outbreak: New Documents

Reveal a Significant Number of the County’s COVID-19 Cases Can Be Traced to

Castleton Church, Rappahannock News (Sept. 1, 2020), https://bit.ly/33hLAlG; Wyatt

Massey, Church of God Denomination Facing Significant COVID-19 Outbreak;

Leaders Won’t Say How Many Infected, Chattanooga Times Free Press (July 7, 2020),

https://bit.ly/3bTiWLl; Ryan Burns, A Redding Megachurch Leader Came to

Humboldt and Flouted Mask Rules; Her Ministry Is Now the Source of a Major COVID

Outbreak, Lost Coast Outpost (Oct. 13, 2020), https://bit.ly/3m86USh; Bailey

Loosemore & Mandy McLaren, How a Church Revival in a Small Kentucky Town Led

to a Deadly Coronavirus Outbreak, Louisville Courier-Journal (Apr. 3, 2020),

https://bit.ly/2V1Jjrs; Trudy Balcom, COVID-19 Outbreak on the Navajo Nation

Linked

Church

Rally,

White

Mountain

Indep.

(Mar.

24,

2020),

https://bit.ly/2YSR6di; Joe Severino, COVID-19 Tore Through a Black Baptist Church

Community in WV; Nobody Said a Word About It, Charleston Gazette-Mail (May 2,

2020), https://bit.ly/2SFVYyX.

As these examples show, a single unwitting carrier at a large worship service

can cause a ripple effect not just within the congregation, which alone would be tragic,

but also throughout an entire community: The one infected person may pass the virus

to his neighbors in the pews, who may then return home and pass it to their family

members, including people at high risk of severe illness. Those infected family

members may then expose others, who may do the same to their families—and so on.

And the more people who get sick, the more strain is placed on the hospital system,

and the greater the chance that people die because of insufficient healthcare

resources. The Free Exercise Clause has never been thought to require religious

exemptions for conduct that threatens so much harm to so many.

It is no answer to argue that spread of the virus might be reduced to some

extent through means short of restrictions on the size of gatherings, such as physicaldistancing requirements and sanitation measures. Though such measures are

certainly a good idea and can bolster the effectiveness of capacity restrictions,

airborne transmission of COVID-19 can render even rigorous physical-distancing and

cleaning measures inadequate. See, e.g., Renyi Zhang et al., Identifying Airborne

Transmission as the Dominant Route for the Spread of COVID-19, 117 PNAS 14,857

(2020), https://bit.ly/2HTGSnf. Outbreaks of the virus have thus been traced to

religious gatherings that employed physical-distancing and other safety precautions.

See, e.g., Shelly Bradbury, Fatal COVID-19 Outbreak Linked to Colorado Religious

Group Suing State over Limits on Gatherings, Denver Post (Oct. 6, 2020),

https://dpo.st/3k5nHVl; Kate Conger et al., Churches Were Eager to Reopen; Now

They

Are

Confronting

Coronavirus

Cases,

N.Y.

Times

(July

10,

2020),

https://nyti.ms/30BOhgq; Lateshia Beachum, Two Churches Reclose After Faith

Leaders and Congregants Get Coronavirus, Wash. Post (May 19, 2020),

https://wapo.st/2WQgW0x; Alex Acquisto, This Central Kentucky Church Reopened

on May 10 and Became a COVID-19 Hot Spot, Lexington Herald-Leader (June 6,

2020), https://bit.ly/3dDbQdq; Richard Read, A Choir Decided to Go Ahead with

Rehearsal; Now Dozens of Members Have COVID-19 and Two Are Dead, L.A. Times

(Mar. 29, 2020), https://lat.ms/2yiLbU6; Chris Epp, ‘I Would Do Anything for a DoOver’: Calgary Church Hopes Others Learn from Their Tragic COVID-19 Experience,

CTV News (May 11, 2020), https://bit.ly/3dLUv2l.

Even when this Court subjects governmental conduct to a compelling-interest

test, it does not require the state to accept “proposed alternatives” if they “will not be

as effective” in achieving the state’s goal. See Ashcroft v. ACLU, 542 U.S. 656, 665

(2004). And as the litany of examples of church-related outbreaks above reflects,

permitting indoor mass gatherings with social-distancing and the like is simply not

as effective at reducing the transmission of COVID-19 as is strictly limiting the size

of those events. The Court should not second-guess the measures that California has

implemented, based on scientific data and public-health expertise, to protect its

residents’ health and lives.

California’s Guidance does not discriminate against religion.

Distinctions based on objective scientific analysis rather than

religious status or animus are not religious discrimination.

The Free Exercise Clause “‘protects religious observers against unequal

treatment’ and against ‘laws that impose special disabilities on the basis of religious

status.’” Espinoza v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quoting

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)).

Thus, the Court has recognized religious discrimination when governmental action is

based on religious status or is otherwise motivated by sectarian or antireligious

animus. By contrast, this Court has never held that government discriminates

against religion in violation of the Free Exercise Clause when it draws distinctions

and acts based on objective, secular criteria, even if its actions incidentally burden

religious practice along with other regulated conduct.

For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 542 (1993), the Court struck down a set of local ordinances prohibiting

animal sacrifice, because they “had as their object the suppression of religion,” having

been “gerrymandered with care to proscribe religious killings of animals but to

exclude almost all secular killings.” In Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission, 138 S. Ct. 1719, 1729 (2018), the Court set aside a decision of a

state commission that a baker had violated a civil-rights law by refusing for religious

reasons to bake a cake for a wedding of a same-sex couple, because the commission’s

statements and conduct had demonstrated “a clear and impermissible hostility

toward the sincere religious beliefs that motivated [the baker’s] objection.” In

Espinoza and Trinity Lutheran, the Court held that the Free Exercise Clause

prohibited states from excluding religious institutions from eligibility for state

funding programs “solely because of religious status.” Espinoza, 140 S. Ct. at 2255;

accord Trinity Lutheran, 137 S. Ct. at 2019–2021. And in McDaniel v. Paty, the Court

ruled that prohibiting a minister from seeking public office solely because of his

status as a member of the clergy violated the Free Exercise Clause. 435 U.S. 618, 629

(1978) (plurality opinion); accord id. at 629–630 (Brennan, J., concurring in the

judgment).

On the other hand, the Court has never concluded that there was religious

discrimination or animus in violation of the Free Exercise Clause just because a law

has some exemptions, drawn on objective grounds unrelated to religion, but does not

also contain an exemption for religious conduct or institutions. For example, in its

cases upholding Sunday-closing laws, the Court concluded that Jewish shopkeepers

who must close on Saturdays for observance of their Sabbath were not entitled to a

religious exemption entitling them to stay open on Sundays, even though the laws

contained many exemptions—delineated on nonreligious lines—for various kinds of

businesses and institutions. See Gallagher v. Crown Kosher Super Mkt. of Mass., Inc.,

366 U.S. 617, 619–620, 631 (1961) (plurality opinion); Braunfeld, 366 U.S. at 600–

601, 609 (plurality opinion); Two Guys From Harrison-Allentown, Inc. v. McGinley,

366 U.S. 582, 585 (1961). And in Hernandez v. Commissioner, 490 U.S. 680, 700

(1989), the Court declined to require that payments made to a religious group for

spiritual-training sessions be deductible under the Internal Revenue Code, despite

provisions in the Code for numerous other kinds of deductions and exemptions.

As the Court explained in Lukumi, “[a]ll laws are selective to some extent.” 508

U.S. at 542. Impermissible “inequality results” under the Free Exercise Clause “when

a legislature decides that the governmental interests it seeks to advance are worthy

of being pursued only against conduct with a religious motivation.” Id. at 542–543

(emphasis added). In other words, “government, in pursuit of legitimate interests,

cannot in a selective manner impose burdens only on conduct motivated by religious

belief.” Id. at 543 (emphasis added). But it can, and inevitably does, impose some

burdens that affect religious practices along with other activities without being guilty

of invidious religious discrimination.

California’s Guidance is not motivated by antireligious animus

and does not discriminate against religious institutions based on

status.

Here, the distinctions in California’s Guidance are based on objective publichealth criteria. The Guidance is not motivated by religious animus. Nor does it

discriminate against religious institutions or individuals based on status.

Indeed, California’s restrictions on gatherings limit religious services no

more—and in important respects less—than comparable nonreligious activities.

Cultural ceremonies, movie theaters, restaurants, universities, and political protests

and rallies are covered by rules identical to those applicable to houses of worship. 3

3 See Industry Guidance to Reduce Risk, COVID19.CA.GOV (updated Nov. 16, 2020),

https://bit.ly/3lI7KG7; About COVID-19 Restrictions, COVID19.CA.GOV (updated

And concert venues, live theatres, festivals, convention centers, bars, breweries,

distilleries, wineries, nightclubs, family-entertainment centers, playgrounds,

amusement parks, theme parks, gyms, fitness centers, yoga studios, bowling alleys,

cardrooms, racetracks, sporting events with live audiences, and private gatherings

are subject to stricter restrictions or—in many cases—are entirely closed or

prohibited statewide.4

Applicants point out that certain businesses that produce, store, and sell food

and other goods are not subject to the same restrictions as those that apply to houses

of worship. But the State has articulated a “principled rationale for the difference in

treatment” (Masterpiece, 138 S. Ct. at 1731)—namely, the different public-health

risks posed by different categories of activities. And the district court, as factfinder,

has credited the State’s rationale. Applicants’ Appendix C, at 3–4.

Take grocery and retail stores, for example. Public-health experts have

concluded that stores pose much less risk of transmission of COVID-19 than do

gatherings such as worship services, in part because customers’ interactions with

others at stores are generally transient, while attendees at large gatherings may sit

near an infectious person for long periods and thus suffer exposure to a much greater

amount of the virus. See Johns Hopkins Bloomberg Sch. of Pub. Health Ctr. for

Health Sec., Public Health Principles for a Phased Reopening During COVID-19:

Nov. 23, 2020), https://bit.ly/2Bmgcb5 (section entitled “Can I engage in political

rallies and protest gatherings?”).

4 See Industry Guidance to Reduce Risk, supra; Blueprint for a Safer Economy,

COVID19.CA.GOV (updated Nov. 24, 2020), https://bit.ly/3jAoI7b (section entitled

“Find the status of activities in your county”); About COVID-19 Restrictions, supra

(section entitled “Are gatherings permitted?”).

Guidance for Governors 12, 16 (Apr. 17, 2020), https://bit.ly/2CKc5qz. In addition,

stores do not involve masses of individuals arriving and departing simultaneously.

Warehouses and food-production plants are not comparable to religious

services either. Like retail operations, these institutions generally do not involve

large groups arriving and departing together or congregating and intermingling en

masse for long periods. And warehouses and plants are not open to members of the

public generally but instead are typically occupied by the same set of employees from

day to day. Employers thus have greater control over their employees’ adherence to

safety and health precautions; and contact tracing in the event of an outbreak is

substantially easier among a closed group of known employees. Moreover,

warehouses and plants cannot be operated remotely; and shutting them down would

threaten the availability of food, medication, and other goods that are themselves

crucial to maintaining the public health.

Applicants additionally object to a prohibition on singing and chanting at

indoor religious services. But California also prohibits singing and chanting at indoor

cultural ceremonies,5 indoor political protests and rallies,6 schools,7 restaurants,8 and

indoor private gatherings.9 Other venues and events that commonly feature singing

Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Places of Worship and

Providers of Religious Services & Cultural Ceremonies 2–3 (July 29, 2020),

https://bit.ly/3fF534l.

6 About COVID-19 Restrictions, supra (section entitled “Can I engage in political

rallies and protest gatherings?”).

7 Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Schools and School-Based

Programs 12 (Aug. 3, 2020), https://bit.ly/2FXK93C.

8 Cal. Dep’t of Pub. Health, Covid-19 Industry Guidance: Restaurants, Bars, and

Wineries 14 (July 29, 2020), https://bit.ly/3k7T69z.

9 About COVID-19 Restrictions, supra (section entitled “Are gatherings permitted?”).

or chanting—including concert halls, live theatres, festivals, and nightclubs—are

closed or barred entirely.10 And singing and chanting are still permitted at outdoor

religious services.11 Again, California is not discriminating against religion.

Nor are California’s restrictions discriminatory because they apply to

applicants’ worship services but not to social-welfare programs that applicants may

wish to provide, such as operating a food bank. The sustained congregation of

worshippers is different from the fleeting, sequential exchanges between a volunteer

at a food bank and a person picking up pantry staples. And the rules concerning

social-welfare programs govern religious and nonreligious institutions equally, 12

underscoring the nondiscriminatory nature of California’s restrictions.

Finally, applicants argue that California’s restrictions on indoor religious

services should be enjoined because California allows outdoor protests. But the rules

that California imposes on protests are identical to the rules applicable to religious

services: outdoor protests and religious services are permitted statewide, while

indoor protests and religious services are barred in some counties and governed by

uniform limitations in others.13 Furthermore, outdoor gatherings are not comparable

to indoor gatherings because there is far less risk of transmission of the virus

outdoors; indeed, one study concluded that the odds of infection are nearly twenty

times higher at indoor gatherings than at outdoor ones. See, e.g., Tara Parker-Pope,

10 See Blueprint, supra (section entitled “Find the status of activities in your county”).

11 See Industry Guidance: Places of Worship, supra, at 3.

See Essential Workforce, COVID19.CA.GOV (updated Sept. 22, 2020),

https://bit.ly/35kQalC (section entitled “Food and Agriculture,” ¶ 12).

13 See About COVID-19 Restrictions, supra (section entitled “Can I engage in political

rallies and protest gatherings?”).

How

Safe

Are

Outdoor

Gatherings?,

N.Y.

Times

(July

2020),

https://nyti.ms/3j4fH6g. That California restricts outdoor religious and political

gatherings less than indoor gatherings (including religious ones) shows absolutely no

disfavor toward religion but instead demonstrates that the State draws appropriate

distinctions based on epidemiological considerations related to the physical features

of the setting.

As Judge Easterbrook explained in upholding restrictions in Illinois that were

similar to California’s, “worship services * * * seem most like other congregate

functions that occur in auditoriums, such as concerts and movies,” all of which “put[ ]

members of multiple families close to one another for extended periods, while

invisible droplets containing the virus may linger in the air.” Elim Romanian

Pentecostal Church v. Pritzker, 962 F.3d 341, 346 (7th Cir. 2020), petition for cert.

docketed, No. 20-569 (Oct. 30, 2020). Because California’s Guidance restricts religious

worship similarly to or less than these kinds of comparable activities, it cannot be

said to discriminate against religion.

CONCLUSION

If there is one belief widely held among the diverse faiths that Americans hold,

it is the great value that they place on human life. E.g., Deuteronomy 30:19–20. The

precious right to worship freely should not be misapplied in a manner that

contributes to the spread of disease, suffering, and death. For to do so would defeat

the very purpose of that right: “The dead cannot praise the Lord.” Psalms 115:17.

California has carefully drawn distinctions based on objective public-healthbased considerations, while at the same time showing special solicitude—not

disfavor—for religious institutions and their worship services. In doing so, the State

is ensuring that after the pandemic is brought under control many more Californians

will be alive, healthy, and able to engage in activity that gives their lives meaning,

be that worship or other pursuits. Especially in the context of an emergency

proceeding such as this one, this Court should not second-guess California’s

scientifically grounded distinctions and the factual findings of the district court.

The application for an emergency injunction should be denied.

Respectfully submitted.

RICHARD B. KATSKEE

ALEX J. LUCHENITSER

Counsel of Record

SARAH R. GOETZ

Americans United for Separation

of Church and State

1310 L St. NW, Ste. 200

Washington, DC 20005

(202) 466-7306

luchenitser@au.org

Counsel for Amici Curiae

NOVEMBER 2020

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.