By Hailey Konnath

Law360 (October 1, 2020, 11:09 PM EDT) -- A split Ninth Circuit panel on Thursday declined to block California's ban on in-person church services during the COVID-19 pandemic, shooting down a request for a temporary stay of the restrictions and finding that the church is unlikely to succeed on its claims the measures discriminate against religious activities. 

Gov. Gavin Newsom has issued various pandemic safety orders prohibiting indoor worship gatherings in 18 counties, limiting such gatherings to 25% capacity or 100 individuals in the other counties and banning singing or chanting during religious services, according to the case. Newsom's orders also prohibit gathering in private homes for group bible studies.

Harvest Rock Church in Pasadena, California, claims those measures discriminate against religious activities in violation of the U.S. Constitution. The church filed its suit July 17 and lodged a motion for a temporary restraining order the next day.

A California federal court rejected that request, and the case landed in the Ninth Circuit in August.

In Thursday's split decision, the panel majority sided with Newsom, finding that the church hadn't shown that the restrictions treat secular activity more favorably than religious activity. In fact, U.S. Circuit Judges Johnnie B. Rawlinson and Morgan Christen said the governor's restrictions on theaters and higher education are "virtually identical" to the restrictions at the heart of the dispute.

"The orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters," they said.

The majority also rejected Harvest Rock's argument that Newsom hadn't provided rationale for the more lenient treatment of certain secular activities, like shopping in a big store. Newsom had made that decision based on evidence that the risk of COVID-19 is elevated in indoor congregate activities, the judges said. And the church hadn't offered any evidence to the contrary, they said.

The judges pointed to the U.S. Supreme Court's May ruling in South Bay United Pentecostal Church v. Newsom, in which a San Diego church had made a similar request. The high court voted 5-4 to deny that request, finding that health officials have broad discretion to ensure public safety.

Harvest Rock hasn't demonstrated that the injunction is in the public interest or that the restrictions at issue in this dispute are materially different from those upheld by the Supreme Court, the majority said.

U.S. Circuit Judge Diarmuid O'Scannlain disagreed, noting in his dissent that people are still allowed to go indoors to spend a day shopping at a mall, have their hair styled, get a manicure, attend college classes, participate in professional sports and wash their clothes at a laundromat.

"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," Judge O'Scannlain said. "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."

The judge added that the panel is "neither bound nor meaningfully guided by the Supreme Court's decision" in the South Bay United Pentecostal Church. That decision considered an earlier and "much different" iteration of California's restrictions, he said.

"Because California's COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations," Judge O'Scannlain said.

Mat Staver, counsel for the church, said in a statement Thursday that he's grateful for a "strong dissent that points out the constitutional flaws of Gov. Newsom's orders." He said he looks forward to pressing on with the case.

"While the virus does not discriminate between nonreligious and religious gatherings, Gov. Newsom does," Staver said. "The clear discrimination in his 'Blueprint for a Safer Economy' violates the First Amendment. Churches and people of faith have a First Amendment right to assemble and the state cannot mandate when and how people worship."

Newsom's office didn't immediately return a request for comment late Thursday.

Judges Diarmuid O'Scannlain, Johnnie B. Rawlinson and Morgan Christen sat on the panel for the Ninth Circuit.

The church is represented by Matthew D. Staver, Horatio G. Mihet, Roger K. Gannam and Daniel J. Schmid of Liberty Counsel and Nicolai Cocis of the Law Office of Nicolai Cocis.

Newsom is represented by Thomas S. Patterson, Benjamin M. Glickman, Todd Grabarsky and Seth E. Goldstein of the California Attorney General's Office.

The case is Harvest Rock Church Inc. et al. v. Newsom, case number 20-55907, in the U.S. Court of Appeals for the Ninth Circuit.

--Additional reporting by Jimmy Hoover. Editing by Michael Watanabe.

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