United States v. 2020-05-22 | 20-55533 | SOUTH BAY UNITED PENTECOSTAL C V. GAVIN NEWSOM | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SOUTH BAY UNITED PENTECOSTAL
CHURCH, a California nonprofit
corporation; B
ISHOP ARTHUR
HODGES III, an individual,
Plaintiffs-Appellants,

v.

G
AVIN NEWSOM, in his official
capacity as the Governor of
California; XAVIER BECERRA, in his
official capacity as the Attorney
General of California; S
ONIA
ANGELL, in her official capacity as
California Public Health Officer;
WILMA J. WOOTEN, in her official
capacity as Public Health Officer,
County of San Diego; H
ELEN
ROBBINS-MEYER, in her official
capacity as Director of Emergency
Services; WILLIAM D. GORE, in his
official capacity as Sheriff of the
County of San Diego,
Defendants-Appellees.
No. 20-55533

D.C. No.
3:20-cv-00865-
BAS-AHG

ORDER

2 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

Filed May 22, 2020

Before: Barry G. Silverman, Jacqueline H. Nguyen,
and Daniel Paul Collins, Circuit Judges.

Order;
Dissent by Judge Collins

SUMMARY
*

Civil Rights

The panel denied an emergency motion for injunctive
relief pending appeal in an action challenging the application
of the State of California and County of San Diego’s stay-at-
home orders to in-person religious services.

Appellants appealed from the district court’s denial of
their motion for a temporary restraining order and order to
show cause why a preliminary injunction should not issue
and filed an emergency motion seeking injunctive relief
permitting them to hold in-person religious services during
the pendency of the appeal. The panel held that it had
jurisdiction to review the denial of a temporary restraining
order where, as here, the circumstances rendered the denial
tantamount to the denial of a preliminary injunction.
Accordingly, the panel denied the motion to dismiss for lack
of jurisdiction.

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

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 3

The panel concluded that appellants had not
demonstrated a sufficient likelihood of success on appeal.
The panel stated that where state action does not “infringe
upon or restrict practices because of their religious
motivation” and does not “in a selective manner impose
burdens only on conduct motivated by religious belief,” it
does not violate the First Amendment. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
533, 543 (1993). The panel further stated that “[w]e’re
dealing here with a highly contagious and often fatal disease
for which there presently is no known cure. In the words of
Justice Robert Jackson, if a ‘[c]ourt does not temper its
doctrinaire logic with a little practical wisdom, it will
convert the constitutional Bill of Rights into a suicide pact.’”
Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949)
(Jackson, J., dissenting).

Dissenting, Judge Collins stated that the State of
California’s refusal to allow appellants to hold in-person
religious services pending appeal likely violates the Free
Exercise Clause of the First Amendment, and so he would
grant the requested injunction.

COUNSEL

Charles S. LiMandri, Paul M. Jonna, Jeffrey M. Trissell, and
Milan L. Brandon, LiMandri & Jonna LLP, Rancho Santa
Fe, California; Thomas Brejcha and Peter Breen, Thomas
More Society, Chicago, Illinois; Harmett K. Dhillon, Mark
P. Meuser, and Gregory R. Michael, Dhillon Law Group
Inc., San Francisco, California; for Plaintiffs-Appellants.

Xavier Becerra, Attorney General; Thomas S. Patterson,
Senior Assistant Attorney General; Paul Stein, Supervising

4 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

Deputy Attorney General; Todd Grabarsky, Deputy
Attorney General; Office of the Attorney General, Los
Angeles, California; for Defendants-Appellees Gavin
Newsom, Xavier Becerra, and Sonia Angell.

Thomas E. Montgomery, County Counsel; Timothy M.
White and Jeffrey P. Michalowski, Senior Deputies; Office
of County Counsel, San Diego, California; for Defendants-
Appellees Wilma J. Wooten, Helen Robbins-Meyer, and
William D. Gore.

Richard B. Katskee, Alex J. Luchenitser, and Alexander
Gouzoules, Washington, D.C., as and for Amicus Curiae
Americans United for Separation of Church and State.

ORDER
This appeal challenges the district court’s denial of
appellants’ motion for a temporary restraining order and
order to show cause why a preliminary injunction should not
issue in appellants’ challenge to the application of the State
of California and County of San Diego’s stay-at-home orders
to in-person religious services. Appellants have filed an
emergency motion seeking injunctive relief permitting them
to hold in-person religious services during the pendency of
this appeal.
We have jurisdiction to review the denial of a temporary
restraining order where, as here, “the circumstances render
the denial ‘tantamount to the denial of a preliminary
injunction.’” Religious Tech. Ctr., Church of Scientology
Int’l, Inc. v. Scott, 869 F.2d 1306, 1308 (9th Cir. 1989)
(internal citation omitted); see also 28 U.S.C. § 1292(a)(1).

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 5

Accordingly, the motion to dismiss for lack of jurisdiction
(Docket Entry No. 24) is denied.
The request to take judicial notice (Docket Entry No. 25)
is granted.
In evaluating a motion for an injunction pending appeal,
we consider whether the moving party has demonstrated that
they are likely to succeed on the merits, that they are likely
to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in their 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.”).
We conclude that appellants have not demonstrated a
sufficient likelihood of success on appeal. Where state
action does not “infringe upon or restrict practices because
of their religious motivation” and does not “in a selective
manner impose burdens only on conduct motivated by
religious belief,” it does not violate the First Amendment.
See Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here
with a highly contagious and often fatal disease for which
there presently is no known cure. In the words of Justice
Robert Jackson, if a “[c]ourt does not temper its doctrinaire
logic with a little practical wisdom, it will convert the
constitutional Bill of Rights into a suicide pact.” Terminiello
v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J.,
dissenting).
The remaining factors do not counsel in favor of
injunctive relief. See Winter, 555 U.S. at 20. We therefore

6 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

deny the emergency motion for injunctive relief pending
appeal (Docket Entry No. 2).
1

COLLINS, Circuit Judge, dissenting:
Plaintiffs-Appellants South Bay United Pentecostal
Church (the “Church”) and its Bishop, Arthur Hodges III
(collectively, “Plaintiffs”), move for a preliminary
injunction pending appeal that would allow them to conduct
in-person church services. The State of California’s refusal
to allow them to hold such services likely violates the Free
Exercise Clause of the First Amendment, and so I would
grant the requested injunction. Because the majority
concludes otherwise, I respectfully dissent.
I
The Church is a Christian congregation in Chula Vista,
California. Until the recent COVID-19 pandemic, the
Church held between three and five Sunday services every
week, which would attract 200–300 congregants each. Its
sanctuary seats 600.
On March 19, 2020, Governor Gavin Newsom issued
Executive Order N-33-20. The order generally required “all
individuals living in the State of California to stay home or
at their place of residence except as needed to maintain
continuity of operations of the federal critical infrastructure
sectors.” The federal list of critical sectors did not include
churches. The State public health officer subsequently
designated a comprehensive set of “Essential Critical

1
Judge Collins would grant the motion and has filed a dissent.

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 7

Infrastructure Workers.” That list designated clergy as
essential, but only if they were holding services “through
streaming or other technologies that support physical
distancing and state public health guidelines.”
On April 28, the Governor announced a four-stage
“Reopening Plan” or “Resilience Roadmap,” under which
the State would initially relax the stay-at-home order for
some organizations but not others. At Stage 1, only “critical
infrastructure” was exempted. At Stage 2, curbside retail
and additional factories making previously non-essential
“things like toys, clothing, . . . [and] furniture” would be
permitted to reopen. Stage 2 entities also included ones that
would reopen at a later date within that stage, such as schools
(in an adapted form), childcare, dine-in restaurants, outdoor
museums, “destination retail, including shopping malls and
swap meets,” and office-based businesses where telework is
not possible. At Stage 3, “higher risk workplaces” like
churches could reopen, along with bars, movie theaters, hair
salons, and “more personal & hospitality services.” And at
Stage 4, concerts, conventions, and spectator sports could
reopen. The Governor predicted that while Phase 2 would
begin in “weeks, not months,” Phase 3 would begin in
“months, not weeks.”
On May 4, the Governor announced that Stage 2 would
commence within a week. On May 8, Plaintiffs sued the
Governor and several other state officers (collectively, “the
State”) as well as various local officials, claiming that the
Reopening Plan’s decision to place churches within Stage 3
instead of Stage 2 violated the Free Exercise Clause of the
First Amendment. The County of San Diego implemented
the Reopening Plan in an order dated May 9, 2020. Plaintiffs
filed an amended complaint on May 11.

8 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

On May 15, 2020, the district court denied Plaintiffs’
motion for both a temporary restraining order (“TRO”) and
an order to show cause (“OSC”) why a preliminary
injunction allowing the Church to hold in-person services
should not issue. Plaintiffs appealed and concurrently
moved for a preliminary injunction in this court.
II
We have jurisdiction over this appeal under our
controlling decision in Religious Tech. Ctr., Church of
Scientology Int’l, Inc. v. Scott, 869 F.2d 1306 (9th Cir.
1989).
1
Both in Religious Tech. Ctr. and in this case, the
plaintiffs filed a motion for a TRO and for an OSC why a
preliminary injunction should not issue; the district court
denied the motion “for a TRO and an OSC following a
hearing at which all parties were represented”; and the
specific grounds on which the district court denied the
motion “foreclosed any interlocutory relief.” Id. at 1308–09.
As to the latter point, the district court below agreed with the
State that the Reopening Plan is a “neutral law of general
application” that is therefore subject only to rational basis
review under Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 531 (1993). Given that this
threshold legal conclusion is indisputably fatal to Plaintiffs’
Free Exercise claim, “[t]he futility of any further hearing was
thus patent; there was nothing left to talk about.” Id. at 1309.
The order was thus “tantamount to a denial of a preliminary

1
The State questioned our jurisdiction in its initial opposition to
Plaintiffs’ motion in this court, but it did not renew that objection in its
subsequent formal opposition. Nonetheless, we have an obligation to
consider the issue sua sponte.

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 9

injunction,” id. at 1308, and we therefore have jurisdiction
under 28 U.S.C. § 1292(a)(1).
III
Plaintiffs seek a preliminary injunction pending appeal,
and the standards for such relief are well-settled. “A plaintiff
seeking a preliminary injunction must establish that he is
likely to succeed on the merits, that he is likely to suffer
irreparable harm in the absence of preliminary relief, that the
balance of equities tips in his favor, and that an injunction is
in the public interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). “Under our ‘sliding scale’
approach, ‘the elements of the preliminary injunction test are
balanced, so that a stronger showing of one element may
offset a weaker showing of another.’” Hernandez v.
Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (quoting
Pimentel v. Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)).
Here, all of these factors favor the Plaintiffs.
A
In seeking injunctive relief pending appeal, Plaintiffs
principally rely on their claim under the First Amendment’s
Free Exercise Clause, which provides that “Congress shall
make no law respecting an establishment of religion, or
prohibiting the free exercise thereof.” U.S. Const. amend. I
(emphasis added). This restriction is fully applicable to the
States through the Fourteenth Amendment. Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940). I conclude that
Plaintiffs have established a very strong likelihood of
success on the merits of their Free Exercise claim.

10 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

1
As a threshold matter, the State contends that, in light of
the ongoing pandemic, the constitutional standards that
would normally govern our review of a Free Exercise claim
should not be applied. “Although the Constitution is not
suspended during a state of emergency,” the State tells us,
“constitutional rights may be reasonably restricted ‘as the
safety of the general public may demand’” (quoting
Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)).
According to the State, the current emergency conditions
preclude us from applying Lukumi’s familiar framework for
evaluating Free Exercise claims and require us instead to
apply Jacobson’s “highly deferential” standard of review,
under which we are supposedly limited “‘to a determination
of whether the [Governor’s] actions were taken in good faith
and whether there is some factual basis for [the] decision’”
(quoting United States v. Chalk, 441 F.2d 1277, 1281 (4th
Cir. 1971)). As the State sees it, there is no “reason why
Jacobson would not extend to the First Amendment and
other constitutional provisions” (emphasis added). I am
unable to agree with this argument, which seems to me to be
fundamentally inconsistent with our constitutional order. Cf.
Sterling v. Constantin, 287 U.S. 378, 397–98 (1932) (“If this
extreme position could be deemed to be well taken, it is
manifest that the fiat of a state Governor, and not the
Constitution of the United States, would be the supreme law
of the land; that the restrictions of the Federal Constitution
upon the exercise of state power would be but impotent
phrases[.]”).
The State’s motion cites no authority that can justify its
extraordinary claim that the current emergency gives the
Governor the power to restrict any and all constitutional
rights, as long as he has acted in “good faith” and has “some

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 11

factual basis” for his edicts. Nothing in Jacobson supports
the view that an emergency displaces normal constitutional
standards. Rather, Jacobson provides that an emergency
may justify temporary constraints within those standards. As
the Second Circuit has recognized, Jacobson merely rejected
what we would now call a “substantive due process”
challenge to a compulsory vaccination requirement, holding
that such a mandate “was within the State’s police power.”
Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir.
2015); see also Zucht v. King, 260 U.S. 174, 176 (1922)
(Jacobson “settled that it is within the police power of a state
to provide for compulsory vaccination”). Jacobson’s
deferential standard of review is appropriate in that limited
context. It might have been relevant here if Plaintiffs were
asserting a comparable substantive due process claim, but
they are not.
Instead, Plaintiffs assert a claim under the Free Exercise
Clause, whose standards are well-established and which
applies to the States under the Fourteenth Amendment.
Cantwell, 310 U.S. at 303. Jacobson had no occasion to
address a Free Exercise claim, because none was presented
there. (That is unsurprising, because the Free Exercise
Clause had not yet been held to apply to the States when
Jacobson was decided in 1905. See Phillips, 775 F.3d
at 543.) Consequently, Jacobson says nothing about what
standards would apply to a claim that an emergency measure
violates some other, enumerated constitutional right; on the
contrary, Jacobson explicitly states that other constitutional
limitations may continue to constrain government conduct.
See 197 U.S. at 25 (emergency public health powers of the
State remain subject “to the condition that no rule . . . shall
contravene the Constitution of the United States, nor infringe
any right granted or secured by that instrument”). The State
suggests that the Second Circuit’s decision in Phillips

12 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

applied Jacobson to bar a First Amendment challenge, but
Phillips actually confirms my narrower reading of Jacobson.
After applying Jacobson to reject the plaintiffs’ substantive
due process challenge to New York’s vaccination
requirement, the court then addressed (and rejected) the
plaintiffs’ Free Exercise challenge by applying not
Jacobson, but the familiar Lukumi framework that governs
all Free Exercise claims. See Phillips, 775 F.3d at 543.
The Fourth Circuit’s decision in Chalk likewise provides
no support for the State’s position. In Chalk, the defendants
were pulled over for driving at 11:00 PM in violation of
Asheville, North Carolina’s four-night curfew, and a search
of their car revealed dynamite caps and other “materials
from which an incendiary bomb could be readily produced.”
See 441 F.2d at 1278–79. On appeal from the defendants’
subsequent convictions, the Fourth Circuit rejected the
defendants’ challenge to the traffic stop, which was “focused
on the curfew imposed by the mayor as a restriction on their
right to travel.” Id. at 1283 (emphasis added). Applying a
deferential standard of review, the court held that the
temporary travel restrictions imposed by the short-lived
curfew were justified in light of the significant civil unrest
in Asheville that had led to the curfew order. Id. at 1282–
83. Given that the defendants were not engaged in any
expressive (or religious) activity while driving, the First
Amendment was not directly implicated by the traffic stop
in Chalk, and so the decision has little relevance here. If
anything, Chalk’s discussion of the First Amendment
undercuts the State’s argument. The Fourth Circuit stated in
dicta that any incidental impact on First Amendment rights
from the curfew would be governed by the intermediate
scrutiny standard of United States v. O’Brien, 391 U.S. 367
(1968), and the court likened the brief restriction on travel to
a time, place, and manner restriction. See 441 F.2d at 1280–

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 13

81, 1283. The fact that Chalk att empted to fit its comments
within such existing First Amendment categories refutes the
State’s notion that the existence of an emergency results in a
wholesale displacement of conventional constitutional
standards.
Moreover, the State overlooks that we have expressly
rejected a comparably broad reading of Chalk in addressing
a First Amendment challenge to “an emergency order
prohibiting access to portions of downtown Seattle,
Washington, during the 1999 World Trade Organization
(WTO) conference.” Menotti v. City of Seattle, 409 F.3d
1113, 1117, 1142 n.55 (9th Cir. 2005). Instead of applying
a broad “‘emergency exception’” based on Chalk, we
analyzed the emergency order within the rubric of
established First Amendment time, place, and manner
principles, which we held provided ample room to “take[]
into account a balance of the competing considerations of
expression and order.” Id. at 1142 & n.55.
Accordingly, I conclude that Plaintiffs’ challenge must
be evaluated under the traditional Lukumi framework that
governs Free Exercise claims.
2

2
Notably, the State does not cite or rely upon the circuit court
decision that most directly supports its reading of Jacobson, which is In
re Abbott, 954 F.3d 772 (5th Cir. 2020). For the reasons stated, I am
unable to agree with the Fifth Circuit’s conclusion that “Jacobson
instructs that all constitutional rights may be reasonably restricted to
combat a public health emergency.” Id. at 786 (emphasis in original);
see also In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (generally
endorsing the Fifth Circuit’s description of emergency powers under
Jacobson). Beyond that limited observation, I express no view on the
very different substantive constitutional questions presented in those
cases.

14 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

2
In addressing a Free Exercise claim under Lukumi, the
first question is whether the challenged restriction is one
“that is neutral and of general applicability.” 508 U.S.
at 531. If the answer is yes, then “we review [it] for a
rational basis.” Stormans, Inc. v. Wiesman, 794 F.3d 1064,
1084 (9th Cir. 2015). If the answer is no, then the restriction
is subject to strict scrutiny—that is, it “must be justified by
a compelling governmental interest and must be narrowly
tailored to advance that interest.” Lukumi, 508 U.S. at 531–
32. In denying the requested relief, the district court held
that the State’s Reopening Plan is a “neutral law of general
application” and that it “is rationally based on protecting
safety and stopping the virus spread.” Alternatively, the
district court held that the Reopening Plan is narrowly
tailored to promote the State’s compelling interest in public
health.
3
In my view, Plaintiffs have a high likelihood of
success in their appeal of these rulings.
a
As the Supreme Court explained in Lukumi, “the
minimum requirement of neutrality is that a law not
discriminate on its face.” 508 U.S. at 533. Accordingly,
where a regulation’s operative language restricts conduct by
explicit reference to the conduct’s religious character, it is
not facially neutral. Id. (citing the law at issue in McDaniel
v. Paty, 435 U.S. 618 (1978), which applied specifically to
members of the clergy, as an example of a law that on its

3
The district court actually reached this alternative conclusion in the
context of addressing Plaintiffs’ likelihood of success on their Free
Exercise claim under the California Constitution. Reliance on the
California Constitution, however, would be inappropriate here. See
Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984).

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 15

face “imposed special disabilities on the basis of religious
status”) (cleaned up). Because the restrictions at issue here
explicitly “reference . . . religious practice, conduct, belief,
or motivation,” they are not “facially neutral.” Stormans,
794 F.3d at 1076.
In framing its restrictions in response to the pandemic,
California did not purport simply to proscribe specific forms
of underlying physical conduct that it identified as
dangerous, such as failing to maintain social distancing or
having an excessive number of persons within an enclosed
space. Instead, Executive Order N-33-20 presumptively
prohibited California residents from leaving their homes for
any reason, except to the extent that an exception to that
order granted back the freedom to conduct particular
activities or to travel back and forth to such activities. See
Cal. Exec. Order N-33-20 (Mar. 19, 2020)
4
(ordering “all
individuals living in the State of California to stay home or
at their place of residence except as needed to maintain
continuity of operations of the federal critical infrastructure
sectors,” except as the State “may designate additional
sectors as critical”).
5
In announcing its Reopening Plan, the
State has adopted a phased approach that will progressively
add more and more exceptions to the baseline stay-at-home
prohibition by designating additional specific categories of
activities that, in the State’s judgment, do not present an

4
See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20
-attested-EO-N-33-20-COVID-19-HEALTH-ORDER.pdf.
5
Even the most ardent proponent of a broad reading of Jacobson
must pause at the astonishing breadth of this assertion of government
power over the citizenry, which in terms of its scope, intrusiveness, and
duration is without parallel in our constitutional tradition. But since
Plaintiffs do not directly challenge the validity of the original Order here,
I do not address the point further.

16 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

undue risk to public health. See Order of the Cal. Pub.
Health Officer (May 7, 2020)
6
(“I will progressively
designate sectors, businesses, establishments, or activities
that may reopen with certain modifications, based on public
health and safety needs, and I will add additional sectors,
businesses, establishments, or activities at a pace designed
to protect public health and safety.”).
As set forth by the State, the four-stage Reopening Plan
assigns “retail (curbside only), manufacturing & logistics”
to the initial portion of “Phase 2,” and in-store retail, “child
care, offices & limited hospitality, [and] personal services”
to a later portion of Phase 2. (On May 20, 2020, San Diego
County was given approval to begin this later portion of
Phase 2; it aims to promptly reopen both dine-in restaurants
and in-store retail businesses.
7
) By contrast, “religious
services” are explicitly assigned to a “Stage 3” that also
includes “movie theaters” and other “personal & hospitality
services.” All reopenings under the Plan are subject to
detailed, activity-by-activity State guidance that sets forth
the specific actions that each activity (such as
“manufacturing” or “warehousing facilities”) must take
(e.g., use of face coverings, social distancing, sanitation, and
employee training) in order to reopen, and to stay open.
By explicitly and categorically assigning all in-person
“religious services” to a future Phase 3—without any

6
See https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20D
ocument%20 Library/COVID-19/SHO%20Order%205-7-2020.pdf.
7
See Lori Weisberg, San Diego County gets the OK from state to
resume dining-in at restaurants, S
AN DIEGO UNION-TRIBUNE (May 20,
2020), https://www.sandiegouniontribune.com/business/story/2020-05-
20/san-diego-county-gets-the-ok-from-state-to -resume-dining-in -at-rest
aurants.

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 17

express regard to the number of attendees, the size of the
space, or the safety protocols followed in such services
8
—
the State’s Reopening Plan undeniably “discriminate[s] on
its face” against “religious conduct.” Lukumi, 508 U.S. at
533. Although the State insists that it has not acted out of
antipathy towards religion, the “constitutional benchmark is
‘government neutrality,’ not ‘government avoidance of
bigotry.’” Roberts, 2020 WL 2316679, at *4 (quoting
Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260
(10th Cir. 2008)). Because the Reopening Plan, on its face,
is not neutral, it is subject to strict scrutiny. Lukumi,
508 U.S. at 531–32.
b
Even if the Reopening Plan were not facially
discriminatory, it would still fail Lukumi’s additional
requirement that the restrictions be “of general
applicability.” 508 U.S. at 531.
Under California’s approach—in which an individual
can leave the home only for the enumerated purposes
specified by the State—these categories of authorized
activities provide the operative rules that govern one’s
conduct. While the resulting highly reticulated patchwork
of designated activities and accompanying guidelines may
make sense from a public health standpoint, there is no
denying that this amalgam of rules is the very antithesis of a
“generally applicable” prohibition. The State is continually
making judgments, at the margins, to decide what additional

8
In this respect, this case differs from Roberts v. Neace, __ F.3d __,
2020 WL 2316679 (6th Cir. May 9, 2020), in which the challenged order
prohibited “[a]ll mass gatherings,” and “faith-based” events were merely
listed as one example of such “mass gatherings.” Id. at *1, 3.

18 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

activities its residents may and may not engage in, and thus
far, “religious services” have not made the cut. I am at a loss
to understand how the State’s current maze of regulations
can be deemed “generally applicable.” See Ward v. Polite,
667 F.3d 727, 740 (6th Cir. 2012) (“At some point, an
exception-ridden policy takes on the appearance and reality
of a system of individualized exemptions, the antithesis of a
neutral and generally applicable policy.”).
The State contends that its plan is generally applicable
because it assertedly classifies activities neutrally, in
accordance with the State’s sense of their perceived risk.
But that is not how the Reopening Plan works. Warehousing
and manufacturing facilities are categorically permitted to
open, so long as they follow specified guidelines. But in-
person “religious services”—merely because they are
“religious services”—are categorically not permitted to take
place even if they follow the same guidelines. This is, by
definition, not a generally applicable regulation of
underlying physical conduct.
3
The only remaining question is whether the Reopening
Plan’s treatment of religious services satisfies strict scrutiny.
The district court concluded that it did, but that is plainly
wrong.
The State’s undeniably compelling interest in public
health “could be achieved by narrower [regulations] that
burdened religion to a far lesser degree.” Lukumi, 508 U.S.
at 546. As Plaintiffs have reiterated throughout these
proceedings, they will “comply[] with every single guideline
that other businesses are required to comply with.” In their
papers in the district court, Plaintiffs provided a list
illustrating the range of measures they are ready and willing

SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM 19

to implement on reopening, including spacing out the
Church’s seating, requiring congregants to wear face
coverings, prohibiting the congregation from singing, and
banning hugging, handshakes, and hand-holding. By
regulating the specific underlying risk-creating behaviors,
rather than banning the particular religious setting within
which they occur, the State could achieve its ends in a
manner that is the “least restrictive way of dealing with the
problem at hand.” Roberts, 2020 WL 2316679, at *5.
9

The State’s only response on the narrow-tailoring point
is to insist that there is too much risk that congregants will
not follow these rules. But as the Sixth Circuit recently
explained in Roberts, the State’s position on this score
illogically assumes that the very same people who cannot be
trusted to follow the rules at their place of worship can be
trusted to do so at their workplace: the State cannot “assume
the worst when people go to worship but assume the best
when people go to work or go about the rest of their daily
lives in permitted social settings.” Roberts, 2020 WL
2316679, at *3.
* * *
Therefore, I conclude that Plaintiffs are highly likely to
succeed on the merits of their Free Exercise Clause claim.
B
All of the remaining considerations strongly favor the
entry of an injunction pending appeal. The Bishop’s
inability to hold in-person worship services, and the Church

9
On this score, it is noteworthy that, earlier today, the CDC issued
“Interim Guidance for Communities of Faith.” See
https://www.cdc.gov/coronavirus/2019-ncov/php/faith-based.html.

20 SOUTH BAY UNITED PENTECOSTAL CHURCH V. NEWSOM

members’ inability to attend them, are certainly irreparable
injuries. Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The
loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury.”);
O Centro Espirita Beneficiente Uniao Do Vegetal v.
Ashcroft, 389 F.3d 973, 1008 (10th Cir. 2004) (en banc)
(Seymour, J., concurring in relevant part for a majority of the
court) (“[T]he violation of one’s right to the free exercise of
religion necessarily constitutes irreparable harm.”), aff’d sub
nom. Gonzales v. O Centro Espirita Beneficiente Uniao Do
Vegetal, 546 U.S. 418 (2006). The injury here is particularly
poignant, given that Pentecost—which the eponymously
named Church greatly desires to celebrate—falls on May 31.
Indeed, the State explicitly “does not question the sincerity
of Plaintiffs’ belief that it is essential to gather in person for
worship services.”
I do not doubt the importance of the public health
objectives that the State puts forth, but the State can
accomplish those objectives without resorting to its current
inflexible and overbroad ban on religious services. The
balance of equities, and the public interest, strongly favor
requiring the State to honor its constitutional duty to
accommodate a critical element of the free exercise of
religion—public worship.
For these reasons, I would grant Plaintiffs’ request for a
preliminary injunction. I respectfully dissent.