Ninth Circuit Rejects Religious Freedom Challenge to California Closure, One Judge Dissents
From South Bay United Pentecostal Church v. Newsom, decided yesterday by Judges Barry Silverman and Jacqueline Nguyen:
This appeal challenges the district court’s denial of appellants’ motion for a temporary restraining order and order to show cause why a preliminary injunction should not issue in appellants’ challenge to the application of the State of California and County of San Diego’s stay-at-home orders to in-person religious services. Appellants have filed an emergency motion seeking injunctive relief permitting them to hold in-person religious services during the pendency of this appeal….
We conclude that appellants have not demonstrated a sufficient likelihood of success on appeal. Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” …
Technically, the majority opinion was just considering the likelihood of success on appeal, but the majority seem to have reached the merits and decided that the appellant’s argument was substantively unsound. Judge Daniel Collins dissented, also reaching the merits:
I conclude that Plaintiffs have established a very strong likelihood of success on the merits of their Free Exercise claim….
As a threshold matter, the State contends that, in light of the ongoing pandemic, the constitutional standards that would normally govern our review of a Free Exercise claim should not be applied. “Although the Constitution is not suspended during a state of emergency,” the State tells us, “constitutional rights may be reasonably restricted ‘as the safety of the general public may demand'” (quoting Jacobson v. Massachusetts (1905))…. As the State sees it, there is no “reason why Jacobson would not extend to the First Amendment and other constitutional provisions” (emphasis added).
I am unable to agree with this argument, which seems to me to be fundamentally inconsistent with our constitutional order. Cf. Sterling v. Constantin (1932) (“If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases[.]”)…. Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rathe
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