California Lifts Indoor Church Limits

Yesterday, California lifted all explicit limits on capacity and location of indoor worship in the state, although the state health department continued to say that indoor gatherings are “strongly discouraged" and advised limiting the numbers to the existing percerntages given under the state's color coded tiers. For most of the state, depending on the county, those limits are currently either 25% or 50% capacity.

There is no change to the requirements for social distancing and masks, and choral and congregational singing are also still prohibited. (However, our priests increasingly pat people on the shoulders, and congregational responses are slowly returning. So far, no Karens have intervened.)

Most news reports say that this was in response to the US Supreme Court's injunction this past Friday against Santa Clara County enforcing a ban on any indoor home worship. This was argued by the Center for American Liberty in the case of Tandon v Newsom.

At the crux of the lawsuit was Newsom’s disparate treatment of at-home religious gatherings, which Newsom arbitrarily limited to three households while permitting secular gatherings in other settings to take place in significantly higher numbers.

. . . The Court ruled that California’s regulation of at-home religious gatherings was “not neutral and generally applicable, and therefore trigger[ed] strict scrutiny under the Free Exercise Clause.” The Court explained, “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.”

“Here, in the case of a rule banning different families from gathering in a private home to pray together, the Court recognized that any time the government burdens religious activity with special rules, it must bear the burden of strict scrutiny, and in this case, it could not meet that test. We are grateful that the First Amendment rights of our clients were recognized by the Court in overturning the 9th Circuit,” said Harmeet K. Dhillon, CEO of the Center for American Liberty.

However, another pro-religious freedom public-interest law firm, Liberty Counsel, noted that the state's lifting of more general restrictions on indoor worship came as a response to the court's potential action in a different case:

In response to Liberty Counsel’s request for an emergency injunction pending appeal to the Ninth Circuit Court of Appeals on behalf of Harvest Rock Church and Harvest International Ministry, Governor Gavin Newsom wrote yesterday that “mandatory limits on attendance are no longer imposed on houses of worship.”

Since this case is still pending and has been active since mid-2020, Liberty Counsel sees the governor's action as a strategic withdrawal in the face of potential appeal in this case as well, given the Supreme Court's consistent recent record of supporting the natural right of freedom to worship in five recent cases. The state's strategy has generally been to try to convince the court not to get involved, since the governor, relaxing the restrictions at issue, makes the case moot -- but then, this enables him simply to reinstate the same restrictions whenever convenient.

Liberty Counsel represents Harvest Rock Church and Harvest International Ministry in which the Supreme Court ruled in favor twice. This case is still pending at the Ninth Circuit Court of Appeals requesting that the district court ruling be reversed. Unless and until there is a judicial declaration that Governor Newsom has acted unconstitutionally, there is nothing keeping him from changing his mind again, whether in this crisis or any future crisis.

As a result, the governor's action represents a temporary victory, but efforts clearly continue to extend and preserve the right to freedom of worship. Two other Southern California cases now seem to be in limbo, the Grace Community Church case in Sun Valley and the Godspeak Calvary Chapel case in Thousand Oaks. These came up last summer when both churches resumed indoor services with neither mandatory masks nor social distancing, which were at the time (and effectively continue to be) forbidden under state COVID rules, notwithstanding there has been some relaxation of specifics in recent weeks.

The effect of this week's most recent relaxation on these two cases, as well as Harvest Rock in Pasadena, is unclear. It appears that the individual judges have been kicking the can down the road, recognizing that the legal and epidemiological situations are constantly changing and apparently unwilling to create a permanent resolution while the situation is so fluid.

The state's announcement clearly puts some individual churches' and parishes' COVID measures at local option. Our diocesan Catholic parish has been playing things by ear in the wake of recent relaxations. In response to last November's Supreme Court orders, Los Angeles County itself in effect allowed indoor worship but left specific capacity up to parish or church judgment. Our parish continues to hold some masses indoors, some outdoors, and some as drive-ins in the parking lot, with the latter the most popular. The weather has been favorable.

While pews are roped off, the ushers have never specifically counted attendance and kept anyone from entering. A return to full indoor masses will clearly depend as much on the comfort level of individual members as on state restrictions. Our impression is that, especially since Easter, people have been returning to all masses in greater numbers.