In a couple recent court cases involving restrictions on indoor worship attendance, the 9th U.S. Circuit Court of Appeals has acknowledged the irreparable harm caused by such government mandates – but allowed most of the state restrictions to stand. The good news, however, is that in both cases, involving churches in California and Nevada, the appeals court took pains to order that churches be treated the same way as similarly situated secular activities, something that had been lacking in the state mandates.

In South Bay United Pentecostal Church v. Newsom, the 9th Circuit examined a set of rules with various “tiers” of restrictions the state and local government had implemented with regard to various activities involving both religious and secular activities. The “tiers” were triggered by indicators of the severity of the pandemic as measured by hospital intensive care bed availability and COVID testing results. Although California permitted unrestricted attendance at outdoor worship services, it temporarily mandated a halt to all indoor services under Tier 1 and placed various occupancy limits under other tiers as the pandemic eased.

The church objected and brought a lawsuit, alleging its First Amendment rights to freely exercise religion were infringed by not being allowed to meet indoors and sing, pray and fellowship together.

In addition to arguing that the complete ban on indoor worship violated its constitutional rights, the church also contested the government’s differential treatment of indoor worship activities as compared with other secular activities having more favorable occupancy restrictions.

In a 9th Circuit opinion issued on January 22, the three-judge panel essentially ruled against the church on its first claim but agreed with it on its second claim. And it relied on a recent U.S. Supreme Court ruling in a New York case that addressed and rejected the differential treatment of houses of worship.

“We conclude that South Bay is likely to succeed on its challenge to the 100- and 200-person attendance caps under Tiers 2 and 3 of the Blueprint,” the 9th Circuit opinion reads. “As with the limitation on indoor worship, after Roman Catholic Diocese, we apply strict scrutiny to these attendance caps because California has imposed different capacity restrictions on religious services relative to non-religious activities and sectors. See Roman Catholic Diocese, 141 S. Ct. at 66–67. Specifically, in Tier 2, indoor worship services are limited to the lesser of 25% or 100 people, whereas retail may operate at 25% capacity and grocery stores may operate at 50% capacity, both without attendance caps. In Tier 3, indoor worship services are limited to the lesser of 50% or 200 people, whereas retail and grocery stores may operate without capacity limits subject to mandatory industry guidance.”

In other words, in the COVID-19 era, strict, but temporary, limits on indoor worship do not violate the First Amendment so long as churches are treated the same way as similarly situated secular establishments. That was the lesson the Supreme Court gave us in Roman Catholic Diocese, and the 9th Circuit followed it with respect to the California COVID-related indoor occupancy rules.

A similar result was reached in another 9th Circuit case, Calvary Chapel Dayton Valley v. Sisolak, involving a Nevada church facing state indoor worship restrictions of 50 people per facility, while at the same time casinos and other secular gathering places were allowed up to 50% of fire code capacity.

Back on December 15, the 9th Circuit ruled in Calvary Chapel’s favor, stating, “The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. As a result, the restrictions in the Directive, although not identical to New York’s, require attendance limitations that create the same ‘disparate treatment’ of religion.”

Because of the fast-paced nature of the appeals and requests for emergency relief in the Calvary Chapel case at multiple levels in the federal court system, the issue reached the U.S. Supreme Court before the 9th Circuit had even ruled. On January 25, the high court declined to accept the case for argument, so the case will stay in the California federal courts for now.

Each of these churches were asking for a broader interpretation of the First Amendment than the lower courts gave them, in effect asking that they not be subject to COVID mandates affecting indoor worship occupancy limits at all. Though their requests came up short, their efforts succeeded at cementing the constitutional principle that churches not be treated as second-class institutions by the states, even during a pandemic.

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