HARVEST ROCK CHURCH, INC., itself et al. v. GAVIN NEWSOM, in his official capacity as Governor of the State of California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HARVEST ROCK CHURCH, INC., itself
and on behalf of its member
churches in California; H
ARVEST
INTERNATIONAL MINISTRY, INC.,
itself and on behalf of its member
churches in California,
Plaintiffs-Appellants,

v.

GAVIN NEWSOM, in his official
capacity as Governor of the State of
California,
Defendant-Appellee.
No. 20-55907

D.C. No.
2:20-cv-06414-
JGB-KK

ORDER

Filed October 1, 2020

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
and Morgan Christen, Circuit Judges.

Order;
Dissent by Judge O’Scannlain

2 HARVEST ROCK CHURCH V. NEWSOM

SUMMARY
*

Civil Rights

The panel denied an emergency motion for an injunction
pending appeal in an action challenging the constitutionality
of California Governor Gavin Newsom’s COVID-19
Executive Orders and related restrictions as they apply to in-
person worship services.

The district court denied plaintiff Harvest Rock Church’s
request for a preliminary injunction barring enforcement of
the Orders as to its in-person worship services. Harvest Rock
appealed and filed an emergency motion asking this court to
enjoin enforcement of the Orders pending appeal.

The panel held that Harvest Rock had not shown a
likelihood of success on its argument that the district court
abused its discretion by declining to enjoin the Orders. The
panel noted that the evidence before the district court did not
support Harvest Rock’s arguments that the Orders accord
comparable secular activity more favorable treatment than
religious activity. The Governor offered the declaration of
an expert in support of the claim that the risk of COVID-19
was elevated in indoor congregate activities, including in-
person worship services. Harvest Rock did not offer a
competing expert or any other evidence to rebut the expert’s
opinion that congregate events like worship services are
particularly risky. The panel determined that because the
district court based its order on the only evidence in the

*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

HARVEST ROCK CHURCH V. NEWSOM 3

record as to the risk of spreading COVID-19 in different
settings, Harvest Rock was unlikely to show that the district
court abused its discretion.

The panel concluded that Harvest Rock failed to
demonstrate that an injunction pending appeal was in the
public interest. The panel stated that Harvest Rock had not
shown that the restrictions at issue in this appeal were
materially different than those presented in South Bay United
Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1614
(2020), and though the panel was not bound by that decision,
it was persuaded by the Supreme Court’s conclusion that
injunctive relief was not warranted.

Dissenting, Judge O’Scannlain disagreed with the
majority’s conclusion that Harvest Rock Church was
unlikely to succeed on the merits of its free exercise
challenge to California’s severe restrictions on religious
worship in the State.

Judge O’Scannlain stated that there was no doubt that
California’s COVID-19 scheme imposed direct and severe
burdens on religious practice. Judge O’Scannlain believed
that the church was quite likely to succeed on the merits of
its challenge to the COVID-19 regulations because the
regulations patently disfavor religious practice when
compared to analogous secular activities.

4 HARVEST ROCK CHURCH V. NEWSOM

COUNSEL

Mathew D. Staver, Horatio G. Mihet, Roger K. Gannam, and
Daniel J. Schmid, Liberty Counsel, Orlando, Florida;
Nicolai Cocis, Law Office of Nicolai Cocis, Murrieta,
California; for Plaintiffs-Appellants.

Xavier Becerra, Attorney General; Thomas S. Patterson,
Senior Assistant Attorney General; Benjamin M. Glickman,
Supervising Deputy Attorney General; Todd Grabarsky and
Seth E. Goldstein, Deputy Attorneys General; Office of the
Attorney General, Sacramento, California; for Defendant-
Appellee.

Alex J. Luchenitser, Richard B. Katskee, and Sarah R.
Goetz, Americans United for Separation of Church and
State, Washington, D.C., for Amici Curiae Americans
United for Separation of Church and State; Bend the Arc: A
Jewish Partnership for Justice; Covenant Network of
Presbyterians; Interfaith Alliance Foundation; Methodist
Federation for Social Action; National Council of Churches
of Christ in the USA; Reconstructionist Rabbinical
Association; Rev. Dr. Marc Ian Stewart, Conference
Minister, Montana-Northern Wyoming Conference, United
Church of Christ; and Southwest Conference of the United
Church of Christ.

HARVEST ROCK CHURCH V. NEWSOM 5

ORDER
Harvest Rock Church, Inc., and Harvest International
Ministry, Inc., (Harvest Rock) challenge the
constitutionality of California Governor Gavin Newsom’s
COVID-19 Executive Orders and related restrictions
(Orders) as they apply to in-person worship services. The
district court denied Harvest Rock’s request for a
preliminary injunction barring enforcement of the Orders as
to its in- person worship services. Harvest Rock appealed
and has filed an emergency motion asking this court to
enjoin enforcement of the Orders pending appeal.
In order to demonstrate that an injunction pending appeal
is warranted, Harvest Rock must show that it is likely to
succeed on the merits, that it is likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in its favor, and that an injunction is in the public
interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S.
7, 20 (2008); see also Feldman v. Ariz. Sec’y of State’s
Office, 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for
evaluating an injunction pending appeal is similar to that
employed by district courts in deciding whether to grant a
preliminary injunction.”). As to a likelihood of success on
the merits, Harvest Rock must demonstrate that it is likely
this court will conclude the district court abused its
discretion in denying the preliminary injunction. See, e.g.,
Lopez v. Heckler, 713 F.2d 1432, 1436 (9th Cir. 1983)
(abuse of discretion standard governs an appeal from the
denial of a preliminary injunction). Our review of the denial
of a preliminary injunction is “limited and deferential.”
Southwest Voter Registration Educ. Project v. Shelley,
344 F.3d 914, 918 (9th Cir. 2003) (en banc). We consider
“only the temporal rights of the parties until the district court
renders judgment on the merits of the case based on a fully

6 HARVEST ROCK CHURCH V. NEWSOM

developed record.” Nat’l Wildlife Fed’n v. Nat’l Marine
Fisheries Serv., 422 F.3d 782, 793 (9th Cir. 2005) (citation
omitted).
We find that Harvest Rock has not shown a likelihood of
success on its argument that the district court abused its
discretion by declining to enjoin the Orders. The evidence
that was before the district court does not support Harvest
Rock’s arguments that the Orders accord comparable secular
activity more favorable treatment than religious activity.
The Orders apply the same restrictions to worship services
as they do to other indoor congregate events, such as lectures
and movie theaters. Some congregate activities are
completely prohibited in every county, such as attending
concerts and spectating sporting events. The dissent states
that the restrictions applicable to places of worship ‘do not
apply broadly to all activities that might appear to be
conducted in a manner similar to religious services,’ but does
not provide support for this point. By our read the
restrictions on theaters and higher education are virtually
identical.
Harvest Rock also contends that the Governor failed to
provide a rationale for the more lenient treatment of certain
secular activities, such as shopping in a large store.
However, the Governor offered the declaration of an expert,
Dr. James Watt, in support of the claim that the risk of
COVID-19 is elevated in indoor congregate activities,
including in-person worship services. Harvest Rock did not
offer a competing expert or any other evidence to rebut
Dr. Watt’s opinion that congregate events like worship
services are particularly risky. Because the district court
based its order on the only evidence in the record as to the
risk of spreading COVID-19 in different settings, Harvest

HARVEST ROCK CHURCH V. NEWSOM 7

Rock is unlikely to show that the district court abused its
discretion.
We also conclude that Harvest Rock failed to
demonstrate that an injunction pending appeal is in the
public interest. The Supreme Court considered and declined
a similar request to enjoin application of California’s Orders
as to worship services in South Bay United Pentecostal
Church v. Newsom, 140 S. Ct. 1613, 1614 (2020) (Roberts,
C.J., concurring) (deference to state officials is “especially”
warranted where “a party seeks emergency relief in an
interlocutory posture, while local officials are actively
shaping their response to changing facts on the ground.”).
Harvest Rock has not shown that the restrictions at issue in
this appeal are materially different than those presented in
South Bay United Pentecostal, and though we are not bound
by it, we are persuaded by the Supreme Court’s conclusion
that injunctive relief is not warranted. See United States v.
Montero-Camargo, 208 F.3d 1122, 1132 n. 17 (2000) (en
banc) (non-binding Supreme Court dicta is accorded
“appropriate deference” (citation omitted)).
For these reasons, the emergency motion for an
injunction pending appeal (Docket Entry No. 6) is DENIED.
We GRANT the motion to file the amicus brief in
support of the Governor for purposes of this emergency
motion (Docket Entry No. 9).

O’SCANNLAIN, Circuit Judge, dissenting:
At present, in 18 counties in California—home to more
than 15 million residents and including its most populous
county, Los Angeles—indoor religious worship services are

8 HARVEST ROCK CHURCH V. NEWSOM

completely prohibited.
1
California insists that this drastic
measure is necessary to fight the ongoing global COVID-19
pandemic—a worthy and indeed compelling goal of any
State. Yet, in these same counties, the State still allows
people to go indoors to: spend a day shopping in the mall,
have their hair styled, get a manicure or pedicure, attend
college classes, produce a television show or movie,
participate in professional sports, wash their clothes at a
laundromat, and even work in a meatpacking plant.
The Constitution allows a State to impose certain
calculated, neutral restrictions—even against churches and
religious believers—necessary to combat emergent threats
to public health. But the Constitution, emphatically, does
not allow a State to pursue such measures against religious
practices more aggressively than it does against comparable
secular activities. See Calvary Chapel Dayton Valley v.
Sisolak, 140 S. Ct. 2603, 2605 (2020) (mem.) (Alito, J.,
dissenting); South Bay United Pentecostal Church v.
Newsom, 140 S. Ct. 1613, 1615 (2020) (mem.) (Kavanaugh,
J., dissenting). Because California’s present coronavirus-
related initiatives do exactly that, I respectfully dissent from

1
See Cal. Dep’t Pub. Health, Blueprint Data Chart (Sept. 29, 2020),
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document
%20Library/COVID-19/Blueprint_Data_Chart_092920.xlsx; State of
California, Covid-19 Blueprint Activity and Business Tiers 1 (last
updated Sept. 28, 2020), https://www.cdph.ca.gov/Programs/CID/DCD
C/CDPH%20Document%20Library/COVID-19/Dimmer-Framework-S
eptember_2020.pdf.
Attendance at in-person religious worship services is allowed but
tightly capped in California’s remaining counties, as explained below.
See infra Part II.A.

HARVEST ROCK CHURCH V. NEWSOM 9

the majority’s decision not to enjoin them pending Harvest
Rock Church’s appeal in this case.
I
I first clarify a point that is somewhat obscured by the
majority’s decision: we are neither bound nor meaningfully
guided by the Supreme Court’s decision to deny a writ of
injunction against California’s restrictions on religious
worship services earlier this year. See South Bay United
Pentecostal Church, 140 S. Ct. at 1613. That decision,
which considered a challenge to an earlier and much
different iteration of California’s restrictions, was
unaccompanied by any opinion of the Court and thus is
precedential only as to “the precise issues presented and
necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176
(U.S. 1977) (per curiam). In that case, the Supreme Court
considered whether to issue a writ of injunction under the
All Writs Act, 28 U.S.C. § 1651(a), a more demanding
standard than that which applies to the motion for an
injunction pending appeal here. Compare Hobby Lobby
Stores, Inc. v. Sebelius, 568 U.S. 1401, 1403 (2012)
(Sotomayor, J., as Circuit Justice) (discussing the standard
for issuing a writ of injunction, which is an “extraordinary”
measure to be “used sparingly” and “only when it is
necessary or appropriate in aid of our jurisdiction and the
legal rights at issue are indisputably clear” (alterations and
internal quotation marks omitted)), with Se. Alaska
Conservation Council v. U.S. Army Corps of Eng’rs,
472 F.3d 1097, 1100 (9th Cir. 2006) (“In deciding whether
to grant an injunction pending appeal, the court balances the
plaintiff’s likelihood of success against the relative hardship
to the parties.” (internal quotation marks omitted)). Without
any opinion of the Court, we have no guidance whatsoever—
not even in the form of “dicta” as the majority suggests, Maj.

10 HARVEST ROCK CHURCH V. NEWSOM

at 7—as to why the Court declined to provide such an
extraordinary remedy, and we certainly have no basis to infer
that a majority of the Court agreed upon some unstated
rationale that somehow applies equally here.
2
Cf. Makekau
v. Hawaii, 943 F.3d 1200, 1205 (9th Cir. 2019) (“[T]he mere
fact that the injunction order issued under the All Writs Act
does not prove that the Supreme Court . . . addressed the
merits [of the underlying claim].”).
II
Turning to the motion before us, I respectfully disagree
with the majority’s conclusion that Harvest Rock Church is
unlikely to succeed on the merits of its free exercise
challenge to California’s severe restrictions on religious
worship in the State.
There is no doubt that California’s COVID-19 scheme
(described more fully below) imposes direct and severe
burdens on religious practice within the State. And where a
State imposes such burdens through measures that are not
“neutral and of general applicability,” its actions must
survive strict scrutiny. Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). “The
Free Exercise Clause bars even subtle departures from
neutrality on matters of religion.” Masterpiece Cakeshop,
Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731
(2018) (internal quotation marks omitted). Because
California’s COVID-19 regulations patently disfavor
religious practice when compared to analogous secular

2
This is true even if one agrees—and to be clear, I do not agree—
with the majority’s assertion that Harvest Rock Church “has not shown
that the restrictions at issue in this appeal are materially different than
those presented in South Bay United Pentecostal.” Maj. at 7.

HARVEST ROCK CHURCH V. NEWSOM 11

activities, I believe that the church is quite likely indeed to
succeed on the merits of its challenge to such regulations.
A
First, California’s complex morass of COVID-related
restrictions fails even the “minimum requirement of
neutrality”: such restrictions discriminate against religious
practice “on [their] face.” Lukumi, 508 U.S. at 533.
Contrary to how California would portray its scheme, at
this point there is no “neutral” or “generally applicable”
State policy that one can apply to determine whether or to
what extent any particular activity is permissible. Instead,
California has announced a variegated and ever-changing
“Blueprint for a Safer Economy,” which regulates all
manner of in-person activities by meticulously delineating
those activities which may take place. See State of
California, Blueprint for a Safer Economy (last updated Oct.
1, 2020), https://covid19.ca.gov/safer-economy [hereinafter
“Cal. Blueprint”]. Despite its deceptively cohesive title, this
“Blueprint” is in reality an amalgamation of dozens of
independent restrictions and “guidance” documents, each of
which pertains only to a specific category of activity within
the State. There are, at this point, independent restrictions
targeted to nearly forty categories of activity (many of them
further subdivided into more categories), including retail
shopping outlets, grocery stores, offices, fitness centers,
places of higher education, schools, barbershops,
warehouses, food packing facilities, film and television
studios, family entertainment centers, museums,
professional sports facilities, and “places of worship.” See
State of California, COVID-19 Industry Guidance (last
updated Sept. 29, 2020), https://covid19.ca.gov/industry-
guidance [hereinafter “Industry Guidance”]. Under this
patchwork scheme, it is the State’s substantive

12 HARVEST ROCK CHURCH V. NEWSOM

categorization of an activity that determines its level of
regulation, not any “neutral” or “generally applicable”
feature of that activity itself.
Relevant here, the restrictions prescribed for “places of
worship” limit attendance at in-person worship services as
follows: (1) at the most severe, in counties designated to be
“Tier 1” risks for COVID-19 spread,
3
no in-person worship
services may be held; (2) in Tier 2 counties, worship services
may be held with no more than 25% of a building’s capacity
or 100 persons in attendance, whichever is fewer; (3) in Tier
3 counties, worship services can be held with no more than
50% of a building’s capacity or 200 persons in attendance,
whichever is fewer; and, finally, (4) in Tier 4 counties,
worship services can be held with no more than 50% of a
building’s capacity, with no additional cap on attendance.
State of California, Covid-19 Blueprint Activity and
Business Tiers 1 (last updated Sept. 28, 2020),
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20
Document%20Library/COVID-19/Dimmer-Framework-
September_2020.pdf [hereinafter “Blueprint Tiers”].
Critically, these same parameters do not apply broadly to all
activities that might appear to be conducted in a manner
similar to religious services—for example, educational
events, meetings, or seminars. Instead, each of these (and
many other potentially similar) activities is regulated
entirely separately from, and often more leniently than,
religious services. See Industry Guidance, supra (providing
restrictions separately governing institutes of higher

3
The State assigns each county to one of four tiers based on the
recently documented number of COVID-19 cases in the county. The
assignments are regularly reviewed and, as infection numbers change, a
county may be moved up or down the State’s tiers. See Cal. Blueprint,
supra.

HARVEST ROCK CHURCH V. NEWSOM 13

education, museums, theaters, and schools); see also, e.g.,
State of California, COVID-19 Essential Workforce (last
updated Sept. 22, 2020), https://covid19.ca.gov/essential-
workforce [hereinafter “Essential Workforce”] (designating
as “essential workforce”—and therefore exempt from other
COVID-19 restrictions—“academies and training facilities
and courses for the purposes of graduating students and
cadets that comprise the essential workforce for all identified
critical sectors”). Indeed, even non-worship activities
conducted by or within a place of worship are not subject to
the attendance parameters outlined above. See Cal. Dep’t of
Pub. Health, COVID-19 Industry Guidance: Places of
Worship and Providers of Religious Services and Cultural
Ceremonies 3 (July 29, 2020) [hereinafter “Places of
Worship Guidance”].
In sum, the restrictions on religious worship services that
Harvest Rock Church challenges here apply because—and
only because—the activities they wish to host and partake in
have been identified, substantively, as “religious” or
“worship” services.
B
California contends that the many idiosyncratic lines it
has drawn between activities within the State are not actually
tied to the substantive content of those activities but instead
reflect the State’s expert judgment regarding the risk that
each activity presents of spreading COVID-19. The
majority accepts the State’s characterization, insisting that
“the Governor offered the declaration of an expert . . . in
support of the claim that the risk of COVID-19 is elevated in
indoor congregate activities, including in-person worship
services.” Maj. at 6. The problem, however, is that the very
features that California’s expert identified as especially
dangerous in religious worship appear to have been ignored

14 HARVEST ROCK CHURCH V. NEWSOM

by the State in its decision to allow numerous other activities
to occur, even though they self-evidently exhibit the same
features.
California’s epidemiological expert, Dr. James Watt,
declared that the State determined church attendance to be
particularly risky because: (1) gatherings of “people from
different households” increase the risk of spreading the
virus; (2) there have been “multiple reports” of COVID-19
spread resulting from religious events; (3) the virus is more
likely to spread “when people are in close contact or
proximity with one another (within about six feet)”; (4) the
risk of transmission increases in groups where people speak,
chant, shout, and sing in close proximity indoors; and
(5) gatherings with “longer duration” increase the
opportunity for the virus to spread. In his declaration, Dr.
Watt distinguished the threat posed by religious services
from the supposedly lesser threat posed by shopping in a
store or working in an office where, according to him (but
with no evidence or expertise in support),
4
interpersonal
encounters are much briefer or more easily regulated.
1
The first flaw in the majority’s uncritical acceptance of
this “evidence” supporting California’s severe restrictions
on church attendance is that the bulk of the identified risk
factors have already been addressed by other measures
imposed by the State. In those counties where indoor
worship is actually allowed to take place, congregants must

4
At oral argument on this motion, counsel for the State conceded
that Dr. Watt is not qualified as an expert to opine on what takes place at
religious worship services or how people interact there as opposed to in
other settings of public life.

HARVEST ROCK CHURCH V. NEWSOM 15

observe six-foot distancing, must wear masks, and may not
sing or chant. See generally Places of Worship Guidance,
supra. With such measures in place, Dr. Watt’s professed
concerns about physical proximity and vocal projections fall
flat. How would the State distinguish a physically distanced,
masked, and silent congregation sitting in a church from any
other setting where the same number of people are present
under the same roof for any other purpose? We do not know
the answer, and I question whether the State could supply
one that is neutral as to the practice of religion.
2
More centrally, even if we were to accept Dr. Watt’s
assertion that the State has reason to find religious services
more dangerous than activities like shopping or working in
an office, the glaring problem for the State is that it has
offered no evidence to support the notion that the myriad
other activities which are less restricted than religious
services are somehow safer by these same parameters. The
State more freely allows an abundance of activities to take
place which, on their face, share the same risk factors that
Dr. Watt identified as so concerning about church
attendance, including: having one’s hair cut and styled at a
salon;
5
getting a manicure or pedicure;
6
working in a

5
Barbershops and hair salons may open in all counties, without
limitations on the number of people who may be present. See Blueprint
Tiers, supra, at 1.
6
As of September 22, 2020, nail salons may open in all counties,
without limitations on the number of people who may be present. See
Blueprint Tiers, supra, at 2.

16 HARVEST ROCK CHURCH V. NEWSOM

warehouse, food-production facility, or meatpacking plant;
7

playing, coaching, or broadcasting professional sports
(including participating in games, practices, workouts, film
sessions, and large team meetings);
8
attending college
classes;
9
filming a television show or movie;
10
exercising at
the gym;
11
or washing clothes at a laundromat.
12
All of these
activities involve gatherings of people from different
households for extended periods of time—in many cases,

7
All of these facilities have been designated as “essential critical
infrastructure,” and they may operate in all counties, without limitations
on the number of people who may be present. See Blueprint Tiers, supra,
at 1; Essential Workforce, supra.
8
In all counties, professional sports may take place without
restrictions on the number of people present (but with no fans in
attendance). See Blueprint Tiers, supra, at 5; Industry Guidance, supra.
9
In all counties at least some courses, like laboratory sciences and
studio arts, may be conducted indoors, without limitations on the number
of people present. See Industry Guidance, supra.
10
California has deemed “entertainment industries, studios, and
other related establishments” to be “essential critical infrastructure,” and
such businesses may open in all counties, without restriction on the
number of people in attendance. See Blueprint Tiers, supra, at 1;
Essential Workforce, supra.
11
Although fitness centers must close in Tier 1 counties, at Tiers 2,
3, and 4 they may open at 10%, 25%, and finally 50% capacity
respectively, with no additional cap on attendance like that imposed on
churches. See Blueprint Tiers, supra, at 3. Thus, in a Tier 2 or 3 county,
a fitness center with a capacity greater than 1,000 people would be
allowed to admit more people than would a church of the same size.
12
Laundromats are designated as “essential critical infrastructure”
and may open in all counties, without limitations on the number of
people who may be present See Blueprint Tiers, supra, at 1; Essential
Workforce, supra.

HARVEST ROCK CHURCH V. NEWSOM 17

hours on end. Many are carried out in close proximity with
others including some—like playing sports, receiving a
haircut, getting a manicure, or acting out a scene in a
movie—that simply cannot be undertaken while also
practicing six-foot social distancing and wearing a mask.
Some involve speaking loudly or shouting—for example, on
an indoor television studio set filled with actors projecting
lines and directors barking orders or in an indoor practice
facility or locker room filled with dozens of professional
athletes and coaches shouting instructions to each other—
which (unlike singing in a church) the State has permitted to
continue. And some have been widely reported to have
resulted in significant outbreaks across the country, a fact the
State itself acknowledges. See Cal. Dep’t of Health,
COVID-19 Industry Guidance: Food Packing and
Processing 1 (July 29, 2020) (“There have been multiple
outbreaks in a range of workplaces, [including at] hospitals,
long-term care facilities, prisons, food production,
warehouses, meat processing plants, and grocery stores.”);
see also, e.g., Anna Stewart, et al., Why Meat Processing
Plants Have Become COVID-19 Hotbeds, CNN Health
(June 27, 2020), https://www.cnn.com/ 2020/06/27/health/
meat-processing-plants-coronavirus-intl/index.html; Brady
Dennis & Chelsea Janes, Coronavirus Outbreak in Major
League Baseball Casts Pall Over Other Reopenings,
Washington Post (July 28, 2020), https://www.washingtonp
ost.com/health/2020/07/28/coronavirus-outbreaks-baseball-
schools. Yet, despite sharing these supposedly critical
features of church attendance, these activities are all more
open and available to Californians. If the reason is based in
some other neutral assessment of disease spread, it has not
been provided to us in this case.

18 HARVEST ROCK CHURCH V. NEWSOM

3
The majority makes much of the fact that, at this point,
the State has imposed the same attendance restrictions on
some secular “congregate” activities such as attending some
academic lectures or going to see a movie in a theater. Maj.
at 6. But the majority cannot dispute that not all such
activities are so tightly restricted—such as participating in a
college class in a laboratory or studio setting or attending a
team meeting or film-review session in the auditorium of a
professional sports facility. More to the point, even if it is
true that the State has similarly regulated some congregate
activities with analogous risks of disease spread, that does
not end our inquiry. Indeed, “it does not suffice to point out
that some [comparable] secular businesses . . . are subject to
the [same restrictions],” if the State cannot also explain why
so many other comparable secular businesses have been
treated more favorably. Calvary Chapel Dayton Valley,
140 S. Ct. at 2613–14 (Alito, J., dissenting); see also id. at
2614 (“The legal question is not whether religious worship
services are all alone in a disfavored category, but why they
are in the disfavored category to begin with.” (citing Emp’t
Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 884
(1990))). Thus, the State cannot evade the Free Exercise
Clause merely by linking its severe restrictions on worship
attendance to those imposed on one or two categories of
comparable secular activity; it must also justify its decision
to treat more favorably a host of other comparable activities
which so evidently raise the State’s same expressed concerns
about disease spread.
C
Finally, we cannot overlook the fact that the State’s
restrictions on houses of worship explicitly exempt on-site
non-religious activities from the strict attendance restraints.

HARVEST ROCK CHURCH V. NEWSOM 19

California’s guidelines for places of worship warn of the
supposed danger in individuals coming together specifically
“to practice a personal faith,” and they make clear that the
restrictions on places of worship do not apply to non-
worship activities including “food preparation and service,
delivery of items to those in need, childcare and daycare
services, school and educational activities, in-home
caregiving, counseling, office work, and other activities that
places and organizations of worship may provide.” Places
of Worship Guidance, supra, at 3. Thus, California’s
framework would plainly permit a church in a Tier 1 county
to host a group of people for some non-religious purpose, but
the same church would be prohibited from hosting an event
for the same people in the same setting for the same length
of time simply if it were for purposes of religious worship.
It is difficult to conceive of a more obvious form of
discrimination against religious activity than that.
III
Because Harvest Rock Church is likely to succeed on the
merits of its free-exercise challenge, it follows that the
balance of hardships also tips in its favor. Without an
injunction, the church and its congregants will be prohibited
from exercising their First Amendment freedoms—the loss
of which, “for even minimal periods of time, unquestionably
constitutes irreparable injury.” In re Dan Farr Prods.,
874 F.3d 590, 597 (9th Cir. 2017) (per curiam) (internal
quotation marks omitted). And, while California has a
compelling interest in limiting the spread of a deadly disease,
the State is not harmed by pursuing that interest—as the
Constitution requires—equally against religious and non-
religious activities alike. See, e.g., Legend Night Club v.
Miller, 637 F.3d 291, 302–03 (4th Cir. 2011) (“Maryland is

20 HARVEST ROCK CHURCH V. NEWSOM

in no way harmed by issuance of an injunction that prevents
the state from enforcing unconstitutional restrictions.”).
I respectfully dissent from the majority’s decision to
deny Harvest Rock Church’s motion for an injunction
pending appeal.