The U.S. Supreme Court granted the petition for cert in South Bay Pentecostal v. Newsom, vacated the lower court rulings, and sent the case back to the lower courts in light of the High Court’s ruling in Tandon v. Newsom. In that decision on April 9, the Supreme Court ruled that California Governor Gavin Newsom’s restrictions on home Bible study and worship violate the First Amendment.
Today’s order is the sixth time the High Court has rejected the Ninth Circuit Court of Appeals’ analysis of California’s COVID restrictions on religious free exercise. The Supreme Court has issued five injunctions pending appeal. In another six church cases, the High Court granted the churches’ requests, vacated the lower court rulings, and ordered the lower courts to reconsider the restrictions in light of its prior rulings (all of which favored places of worship against discriminatory COVID executive orders).
Liberty Counsel filed a reply for the emergency injunction pending appeal to the Ninth Circuit on behalf of Harvest Rock Church and Harvest International Ministry against Governor Gavin Newsom’s unconstitutional discriminatory worship restrictions. The Ninth Circuit has now asked for supplemental briefing to address the Supreme Court’s opinion in Tandon v. Newsom. Liberty Counsel’s case is still pending at the appeals court in order to strike down all remaining restrictions on places of worship.
Unless 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. In addition, the High Court has stated three times in recent church cases that modification of limits on religious worship services do not moot claims for injunctive relief against such restrictions.
The Supreme Court has also affirmed that it is a constitutional violation when some secular gatherings are treated better than religious gatherings. For example, Gov. Newsom’s current guidance permits religious worship services to include “performers” (but not congregants in the audience) to engage in singing, chanting, and similar vocalizations during indoor services. They are subject to a masking requirement in all Tiers of the “Blueprint” and a limit of 10 vocal performers and enhanced distancing in Tier 1. Yet there is preference to music, film, and television studios because there are no numerical restrictions placed upon singing and chanting.
Also in light of the ruling in Tandon v. Newsom, New Mexico Democratic Governor Michelle Lujan Grisham is now allowing places of worship to operate at maximum capacity. Since last April 2020 there have been restrictions based on tiered guidelines for places of worship.
A statement from Governor Meyers’ office said, “The change was made in light of recent U.S. Supreme Court decisions that enjoin states from enforcing capacity limits on churches that are more restrictive than other entities like factories and schools…Houses of worship are strongly encouraged to protect their congregants and communities by enacting social distancing measures to bolster public health and minimize risk of viral spread of their own accord.”
Liberty Counsel Founder and Chairman Mat Staver said, “The High Court has already issued a clear road map that leads to the conclusion that Gov. Gavin Newsom’s discrimination against places of worship is unconstitutional. The handwriting on the wall is obvious. We will continue to fight until the lower courts permanently quarantine him so that he never imposes unconstitutional restrictions on churches.”