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Late last night, the U.S. Supreme Court denied the emergency request for an injunction pending appeal regarding an application filed by churches in California. The case is styled South Bay United Pentecostal Church v. Newsom and represented by Chuck LiMandri of the Freedom of Conscience Defense Fund.
The denial of the emergency relief pending appeal is NOT a denial on the merits of the case. The decision to deny the emergency request was 5-4, with no written opinion by the majority. All that can be determined from this is that a majority did not grant the extraordinary emergency relief at this stage of litigation.
Chief Justice John Roberts, writing on his own with no other Justices joining him, stated that the standard for granting emergency relief while the case is still ongoing “demands a significantly higher justification than a stay, because unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” At this stage, the legal rights at issue must be “indisputably clear.” Justices Kavanagh, Alito, Thomas, and Gorsuch would have granted the emergency relief. Justice Kavanagh wrote a dissent, in which Thomas and Gorsuch joined, explaining why he would grant the injunction pending appeal.
In the South Bay United Pentecostal Church case, the Ninth Circuit Court of Appeals denied the application for an injunction pending appeal, and the churches filed an emergency request to the Supreme Court. On Monday, May 25, Gov. Gavin Newsom removed some restrictions on houses of worship, allowing up to 25 percent occupancy, or 100 people, whichever was less. Justice Elana Kagan is assigned over the Ninth Circuit Court of Appeals to handle emergency motions.
In a separate case filed by Liberty Counsel at the U.S. Supreme Court also requesting an emergency injunction pending appeal on behalf of Elim Romanian Pentecostal Church and Logos Baptist Ministries, Illinois Gov. J.B. Pritzker’s orders restricted churches to only 10 people. Liberty Counsel filed its emergency request late Wednesday afternoon. Justice Brett Kavanaugh, who is assigned over the Seventh Circuit Court of Appeals to handle emergency motions, ordered Gov. Pritzker to file a response by 8:00 p.m. Thursday. Less than four hours before the deadline for Gov. J.B. Prtizker to file his response to the Supreme Court to the emergency injunction request brought by two Romanian churches, the governor unilaterally removed ALL restrictions on churches and houses of worship. The guidelines are only suggestions and contain no legally enforceable requirements whatsoever. The governor is no longer imposing his draconian 10-person limit on church services.
In the separate case out of Illinois regarding the Romanian churches, the High Court earlier on Friday wrote a short order stating, “The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.” In other words, the door is open if the circumstances change and Illinois imposes restrictions on houses of worship. As noted above, Gov. Pritzker removed ALL restrictions on houses of worship on Thursday.
The denial of the emergency relief in the South Bay United Pentecostal Church is NOT a ruling on the merits. The lower courts have split decisions on the merits. There is currently a split in the Circuit Courts of Appeal with the Seventh and Ninth Circuit denying emergency relief and the Fifth and the Sixth Circuits granting emergency relief. None of these lower decisions from the federal Courts of Appeal are final. The next step in this litigation is to file a petition for certiorari to the Supreme Court when a final ruling is released by one or more of these Courts of Appeal.
In light of these draconian restrictions on houses of worship, a Supreme Court decision on the First Amendment Establishment Clause is apropos:
“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will.” Everson v. Bd. of Educ. of Ewing Tp., 330 U.S. 1, 15 (1947) (emphasis added).
Liberty Counsel Founder and Chairman Mat Staver said, “The denial of emergency relief for the California churches does nothing to settle the matter. It is not a ruling on the merits. The litigation will continue until the lower courts issue final rulings, at which time the Supreme Court will be able to consider one or more of these cases on the merits.”