The Metastasizing COVID Legal Morass

I've been following the Harvest Rock Church's case in Pasadena, CA since its inception last spring. As I covered here a month ago, the US Supreme Court sent the case back to the Ninth Circuit for reevaluation in light of its Diocese of Brooklyn action, which essentially signaled that it would find restrictions on attendance specifically tailored to churces a violation of the free exercise clause of the US Constitution. However, this didn't decide anything, it just kicked the issue back to the district court.

The consensus at the time was that Harvest Rock's attorneys would need to relitigate the whole issue back up from the trial court to the Ninth Circuit, and that's what's been happening. As of late last week, Harvest Rock and the state have been filing new briefs with the Ninth Circuit. The court has been asking interesting questions. As outlined here,

The Court of Appeals requested supplemental briefing by the parties to address whether (1) the LA County Order affects the case, (2) the churches still challenge the singing and chanting ban, and (3) the churches challenge includes the new Regional Stay-at-Home Order in addition to Gov. Gavin Newsom's "Blueprint."

These go to the heart of the matter. The first question is whether the LA County order affects the case. This is important, because the principal Harvest Rock church is located in Pasadena, which, althougb it's located in LA County, has its own health department. An LA County health department order does not affect Pasadena. For instance, the LA County health department in mid-December anounced that both worship services and protests were constitutionally protected and withdrew its prohibition against indoor worship, subject to vague rules. However, no other county in California has made any similar announcement.

In addition, the Pasadena health department did not apply the LA County health department's order banning outdoor dining, so it's still possible in Pasadena to eat outoors at a restaurant, but not anywhere else in LA County. But in Pasadena, you can't go to church indoors, although you more or less can now elsewhere in LA County. Thus the case does more or less apply to Harvest Rock, but there's another glitch, in that only the principal Harvest Rock church is in Pasadena, but it has branch churches elsewhere in LA County and elsewhere in the state.

I think the bottom line is that this whole thing is absurd and unenforceable, and the situation can change at any time if either the governor, local health departments, or any other local authority issues any new decree.

The second question is entirely new, and I haven't seen it raised anywhere else. A central point in COVID controls has been that singing or chanting in church is contagious, since people breathe harder when singing and thus spew germs. So even if indoor worship is allowed in individual jurisdictions, a ban on singing and chanting is still near universal. But Harvest Rock is now raising the issue that any ban on singing or chanting is aimed specifically at worship and religion and is a violation of the free exercise clause. Interesting indeed. There's no question that government here is regulating liturgy.

The third question is exactly which stay-at-home order is involved here. As of last summer, there was a color coded order based on COVID statistics that rated individual counties. But in early December, Gov Newsom imposed a whole new order based on regional ICU capacity that somehow overrides, supplements, coexists, or something with the color coded order. The question is exactly which decree Harvest Rock is violating by holding indoor services, none of which has been legislatively enacted -- State Decree I, State Decree II, the LA County Decree I, County Decree II, or the Pasadena Decree,,which conflicts with County Decree II?

Naturally, due process requires that an accusation be brought for violation of a speciric law umder speciric circumstances. By the same token, a petition for redress requires a speciric grievance against a speciric condition. The current panic is taking us farther and farther from these basic questions, which suggests to me once more that we're talking about a panic, not any serious health crisis.