The Ninth Circuit granted two Southern California churches’ requests for injunctions of the state’s fixed attendance caps on indoor worship services in rulings issued Friday and Monday, in light of the U.S. Supreme Court’s recent directive for analyzing the constitutionality of restrictions on those services during the COVID-19 pandemic.

The court left in place other state restrictions on religious gatherings, including a total prohibition on indoor worship services under the most restrictive tier of California’s COVID-19 response and other limitations on attendance that are tied to a percentage of a facility’s fire-code capacity.

Since the pandemic arrived in California, Gov. Gavin Newsom has issued various executive orders limiting indoor religious gatherings, prohibiting them in some counties and in other counties capping attendance. California enacted a blueprint on Aug. 28 that serves as the current underlying framework for the state’s COVID-19 restrictions.

The blueprint created a four-tier system for California counties, based on how rampant the virus is in a given county. Under Tier 2, indoor worship services are capped at the lesser of 25% capacity or 100 attendees; under Tier 3 they’re capped at the lesser of 50% capacity or 200 attendees.

Chula Vista-based South Bay United Pentecostal Church and Pasadena-based Harvest Rock Church both challenged those caps, claiming they unconstitutionally treat secular activity more favorably than religious activity.

The Supreme Court upheld California’s restrictions on worship in a 5-4 decision last June. But in December, the newly constituted high court granted requests from a Roman Catholic diocese and two Orthodox Jewish synagogues to lift similar restrictions on in-person worship in New York in a 5-4 decision, holding the religious entities were likely to prevail on their claim that the restrictions violate the First Amendment’s Free Exercise Clause. The majority also held that such restrictions must survive strict scrutiny to be constitutional.

In its Friday ruling, the Ninth Circuit noted that California “is facing its darkest hour in its fight against the COVID-19 pandemic, with case counts so high that intensive care unit capacity is at 0% in most of Southern California.” But it held that the state’s fixed numerical attendance caps under Tiers 2 and 3 can’t satisfy the strict scrutiny standard, concluding that there isn’t record evidence to show that the caps are necessary to achieve the state’s goal in slowing community spread of the virus.

“While 100 or 200 people could overwhelm a small chapel, a large church the size of South Bay could easily implement social distancing with much higher numbers,” Judge Kim McLane Wardlaw wrote for the three-judge panel. “The State has not shown that less restrictive measures, such as basing attendance limits on the size of the church, synagogue or mosque would cause any greater peril to the public.”

The court remanded the case to the district court with instructions to enjoin the state from imposing the caps under Tiers 2 and 3.

In light of that opinion, another three-judge panel of the court partially granted Harvest Rock Church’s similar request for an injunction of the caps on Monday. Judge Diarmuid O’Scannlain wrote a separate concurrence to state his view that “California’s uniquely severe restrictions against religious worship services — including its total ban against indoor worship in nearly the entire state — are patently unconstitutional and should be enjoined.”

Harvest Rock Church is represented by Liberty Counsel, a Christian nonprofit litigation organization based in Orlando. Mat Staver, Liberty Counsel’s chairman, said in a statement that the church will appeal to the U.S. Supreme Court to challenge California’s total prohibition of indoor worship under Tier 1.

“Striking down a restriction of 100 and 200 people in Tiers 2-3 and upholding a total ban in Tier 1 makes no sense,” Staver said. “The High Court has already issued a clear road map that leads to the ultimate conclusion that Gov. Gavin Newsom’s ban of worship is unconstitutional.”

The California governor’s office could not be immediately reached for comment on the rulings.

The cases are South Bay United Pentecostal Church v. Newsom, case number 20-56358; and Harvest Rock Church Inc. v. Newsom, case number 20-56357, in the U.S. Court of Appeals for the Ninth Circuit.

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