Ninth Circuit Denies Emergency Motion Challenging California COVID-19 Gathering Restrictions

On Tuesday, a divided appellate panel denied a request from individuals for an emergency injunction pending appeal seeking to prevent the enforcement of California’s COVID-19 restrictions on private gatherings and various limitations on businesses. The appellants challenged the constitutionality of those restrictions as applied to their in-home Bible studies, political activities, and business operations. The court concluded that the movants failed to meet the requirements for what it deemed an “extraordinary remedy.”

As the filing explained, the appeal challenged the district court’s Feb. 5 decision denying the appellants’ motion for a preliminary injunction halting the effect of both California and Santa Clara County COVID-19 gatherings restrictions. Before the Ninth Circuit, only the state restrictions were contested.

As to the challenged rule limiting Bible studies and communal worship in homes to no more than three different households at once, the majority opinion held that the restriction was neutral, and generally applicable, and therefore, subject to rational basis review. The appellants had argued that the law was discriminatory towards religious gatherings because it was under-inclusive in the sense that it “does not ‘include in its prohibition substantial, comparable secular conduct that would similarly threaten the government’s interest.’”

The court reasoned that such in-home gatherings are not comparable in terms of public health risk to commercial activities, or even to religious activities in public buildings, noting that commercial enterprises and public spaces are subject to strict sanitation, cleaning, and personal protective equipment requirements. The majority, allegedly in line with Supreme Court precedent, rejected the appellants’ argument that “any restrictions that have an incidental effect on religious conduct can be appropriately compared to restrictions on any secular conduct.”

Another appellant, a candidate for the United States Congress in 2020 who plans to run again, and his wife, claimed that the gathering restrictions prevent him from holding in-person campaign events and fundraisers. The court declined these free speech and assembly arguments because, based on the record, California’s gatherings restrictions do not apply to the appellants’ political activities.

Finally, business owner appellants asserted that the gathering restrictions, capacity limitations, and other regulations on their businesses violate their Fourteenth Amendment substantive due process and equal protection rights. The court held that the right to pursue work is not “fundamental,” in other words, not protected by the Constitution, and has never been construed as such. Thus, the panel held that the lower court correctly applied rational basis review in denying this claim.

Judge Patrick J. Bumatay dissented in part and concurred in part, taking issue with the majority’s religious freedom claim analysis. In a separate opinion, Judge Bumatay wrote that “by failing to grant their requested injunction, we disregard the lessons from the Court and turn a blind eye to discrimination against religious practice.”

The appellants are represented by Eimer Stahl LLP, and California by the Office of the California Attorney General.