CA Churches Emergency Appeal Update

Dec 24, 2020

SAN FRANCISO, CA – The Ninth Circuit Court of Appeals responded to two emergency requests received within hours of each other. The first one involves the Harvest Rock Church and Harvest International Ministry emergency injunction pending appeal (IPA), and the other involves the same request by South Bay United Pentecostal Church. Liberty Counsel represents Harvest Rock Church and Harvest International Ministry, which has many churches in every Tier level set forth by Gov. Gavin Newsom’s “Blueprint.” While Los Angeles County will not enforce Gov. Newsom’s orders, most of the Harvest International Ministry churches are located outside of that county.

In the Harvest Rock Church case, the Ninth Circuit ordered Gov. Newsom to respond by 9 am December 28, and the churches to reply by 9 am December 29.

However, Judge O’Scannlain dissenting in part and concurring in part, wrote:

“The requested deadline is hardly arbitrary: The church seeks immediate action from our court so that its members can worship on Christmas Day, one of the most sacred holy days in the Christian calendar. And it is not the church’s fault that it finds itself in this predicament. The church moved for a temporary restraining order against California’s worship-related restrictions as soon as this case was remanded following a decision by the Supreme Court—yet it had to wait more than two weeks before the district court ruled on that motion. When the district court finally denied its motion two days ago, Harvest Rock Church filed a notice of appeal the same day. The next day, yesterday, the church moved for an emergency injunction from our court.”

Judge O’Scannlain goes on to write: “Harvest Rock Church’s claims against California’s restrictions appear strong.” Further, he states: “I do not object to the panel’s determination that more time is needed to evaluate the merits of Harvest Rock Church’s motion. But we should not deprive the church of any hope of relief during the period of time it takes our court to do so.” Finally, O’Scannlain says, “Even if we need more time to consider the pending motion in full, we should have granted the church at least the temporary relief it needs to ensure that its members can exercise freely the fundamental right to practice their Christian religion on one of the most sacred Christian days of the year.”

In the original 2-1 opinion in which O’Scannlain also dissented, the U.S. Supreme Court agreed with his reasoning in the Thanksgiving Eve decision of Roman Catholic Diocese of Brooklyn v. Cuomo and Agudath Israel v. Cuomo. On Thursday, December 3, in the Harvest Rock Church case, the High Court granted cert, vacated the lower court orders involving the emergency petition of the churches, and directed the district court to reconsider in light of the Court’s decision granting an injunction for churches and synagogues in New York.

In the South Bay case, a different panel of the Ninth Circuit ordered Gov. Newsom to respond to the emergency IPA motion by 9 am today with a reply by noon. In setting the briefing schedule, the panel citing to the Catholic Diocese case wrote that the COVID restrictions “strike at the very heart of the First Amendment.” In addition to the IPA briefing schedule, the panel also set expedited briefing on the merits of the case with the (1) Opening Brief due December 31, (2) Answer Brief due January 7, 2021, and (3) Reply Brief due January 11. It also set oral arguments January 15 for the entire appeal.

Upon remand in the Harvest Rock Church and Harvest International Ministry case to the District Court, Judge Jesus G. Bernal denied the injunction despite the recent rulings from the U.S. Supreme Court and the Ninth Circuit in favor of houses of worship.

A third panel of the Ninth Circuit Court of Appeals ruled in favor of churches against Nevada Governor Steve Sisolak’s unconstitutional worship bans. In the opinion the court wrote, “The Supreme Court’s recent decision . . . arguably represented a seismic shift in Free Exercise law, and compels the result in this case.”

Liberty Counsel Founder and Chairman Mat Staver said, “The lower courts must take seriously the clear roadmap issued by the U.S. Supreme Court for houses of worship. The High Court has ruled and therefore all lower courts must obey that decision to allow houses of worship their First Amendment freedom. Houses of worship face irreparable harm when the faithful congregants face criminal threats for worshipping on one of the two most holy days for Christians. The days of these unconstitutional restrictions are numbered. We shall prevail. The temporary loss before the District Court will become a more important victory for all houses of worship.” Staver also said, “No one should ever have to chose between worship or jail in America. Yet, that is exactly the choice Gov. Newsom has placed on every person in California. This will not stand.”

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