After claiming victory this past weekend after the Supreme Court ruled churches can hold indoor services as long as capacity remains under 25%, attorneys for Harvest Rock Church will now argue that the 25% capacity ruling is unconstitutional.
“Back at the Ninth Circuit Court of Appeals, [we] will argue that the following are unconstitutional: the Tier 1 25 percent capacity because other similar gatherings have a higher capacity or no capacity restrictions; same for Tier 2 as Tier 1; (3) same for the 50 percent capacity in Tier 3-4; and the exemption for music production is unequal treatment compared to the ban on places of worship,” attorney Mat Staver wrote on Monday. Liberty Counsel represents the church.
The tiers were established by Gov. Gavin Newsom to illustrate the severity of COVID-19 across the state.
Tier 1 means the virus is widespread, Tiers 2-4 indicate substantial, moderate, and minimal outbreaks.
Lawyers for the church have already filed a merits brief with the Ninth Circuit and Newsom will respond soon, followed by a final reply brief by Liberty Counsel. The Court of Appeals will set another oral argument and issue its decision.
On a 6-3 vote late Friday, the Supreme Court cited the Constitution’s protection of the free exercise of religion and ruled that “regulations like these violate the First Amendment unless the State can show they are the least restrictive means of achieving a compelling government interest.”
Although Harvest Rock Church Pastor Che Ahn celebrated as if the church had won a total victory, it was not that. The ruling allowed state restrictions on crowd size — 25% of capacity — with prohibitions against singing and chanting remaining in place.
The church met illegally indoors when the health order was in place. It was not immediately known if they will comply with the ruling limiting the crowd to 25% capacity.
The decision reflected the court’s current ideological divide with six conservative justices in favor of the partial injunction and the three liberals dissenting.
“Justices of this court are not scientists,” Associate Justice Elena Kagan wrote in dissent to the majority ruling. “Nor do we know much about public health policy. Yet today the court displaces the judgments of experts about how to respond to a raging pandemic.”
The ruling was the latest in a series of high-profile emergency requests to the nation’s highest court seeking guidance on the question of whether health orders aimed at containing COVID-19 apply to churches and other houses of worship.