Judge Kim McLane Wardlaw, writing for the panel, said the church had not met its burden for obtaining an injunction.
“Notably, in response to the state’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks — 100 percent occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures — would be effective to meet California’s compelling interest in controlling community spread,” Judge Wardlaw wrote. “South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshipers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.”
Relying on that ruling, a different three-judge panel of the Ninth Circuit followed suit in the case concerning Harvest Rock Church. In a reluctant concurring opinion, Judge Diarmuid O’Scannlain urged the Supreme Court to intervene.
“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,” he wrote. “The court’s refusal to do so in South Bay cries out for correction.”
“In exactly the same locales where indoor worship is prohibited,” Judge O’Scannlain wrote, “California still allows a vast array of secular facilities to open indoors, including (to name only a few): retail stores, shopping malls, factories, food-processing plants, warehouses, transportation facilities, child care centers, colleges, libraries, professional sports facilities and movie studios.”
Last year, before the death of Justice Ginsburg, the Supreme Court allowed the governors of California and Nevada to restrict attendance at religious services. In a pair of 5-to-4 orders, Chief Justice Roberts joined what was then the court’s four-member liberal wing to form a majority.
The court changed course in November, after the arrival of Justice Barrett, in a case from New York. Disavowing the chief justice’s approach, the majority barred restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.