SCOTUS Creatively Punts in COVID Appeal from 9th Circuit: Grants Cert Before Judgment, then Vacates and Remands
On September 2, 2020, the Central District of California denied a preliminary injunction in Harvest Rock Church v. Newsom. The five-page order upheld the Governor’s restrictions on houses of worship, based on the reasoning of the (dearly departed) South Bay concurrence:
“Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread.”
One month later, on October 1, the Ninth Circuit denied a motion for an injunction pending appeal. Judge O’Scannlain dissented from that order. He argued, correctly, that South Bay was not a binding Supreme Court precedent:
I first clarify a point that is somewhat obscured by the majority’s decision: we are neither bound nor meaningfully guided by the Supreme Court’s decision to deny a writ of injunction against California’s restrictions on religious worship services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 1613. That decision, which considered a challenge to an earlier and much different iteration of California’s restrictions, was unaccompanied by any opinion of the Court and thus is precedential only as to “the precise issues presented and necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per curiam).
Harvest Rock did not seek an emergency application from the Supreme Court for nearly two months. (I am not
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