Southern California’s South Bay Pentecostal Church, represented by LiMandri & Jonna, doing pro bono work in Rancho Santa Fe, California, as the Freedom of Conscience Defense Fund, joined by the Chicago-based Thomas More Society, has petitioned the United States Supreme Court to intervene and issue an emergency injunction against California Governor Gavin Newsom. The attorneys are asking the high court to command him to cease and desist his biased shutdown of religious worship in California, in blatant violation of the First Amendment’s constitutional guarantee that citizens may freely exercise their religious faith.

So far, the South Bay United Pentecostal Church and its Senior Pastor, Bishop Arthur Hodges III, have failed to prevail in their lawsuit before both San Diego’s federal district court and the 9^th Circuit U.S. Court of Appeals. In the 9^th Circuit the church lost an emergency appeal, 2-1 before a three-judge panel. Judge Daniel Collins sided with the church, filing a powerful 15-page dissent that declared the church deserves the relief it seeks.

The South Bay United Pentecostal Church is asking to hold in-person worship services, fully subject to social distancing and other contagion-mitigation steps. For this purpose, it has had to sue Governor Newsom and other California officials. The church seeks to overturn an array of orders and restrictions that these officials have decreed during the coronavirus pandemic. These mandates are in violation of their constitutional rights to freely practice their religion via worship services, regardless of their plans to observe an entire litany of precautionary measures. An Emergency Application for Writ of Injunctive Relief was filed on May 23, 2020, on behalf of South Bay United Pentecostal Church and Bishop Arthur Hodges III, with the United States Supreme Court in South Bay United Pentecostal Church, et al v. Gavin Newsom, et al.

Tom Brejcha, President and Chief Counsel for the Thomas More Society, explained that the lawsuit and the church’s petition for emergency relief have proved necessary in order that the rights of these and all Americans may be secured. “These most essential liberties and fundamental freedoms are prescribed at the very outset of our Bill of Rights. California’s four stage Reopening Plan permits manufacturing, warehousing, retail, offices, seated dining at restaurants, and schools to reopen, but bans places of worship from holding church services. On its face,” he said, “this plan is a blatant violation of the Free Exercise Clause of our First Amendment.”

South Bay United Pentecostal Church and Bishop Hodges argue that Governor Newsom and other state and local officials have denigrated churches by downgrading them into a lower category of “non-essential” activities, along with movie theaters, salons, and gyms – ignoring their preferred status in our Bill of Rights.  South Bay’s Freedom of Conscience Defense Fund attorneys, teamed with the Thomas More Society, originally filed a request for the church to be open for worship during the COVID-19 pandemic on May 11, 2020. Repulsed by a San Diego federal judge, they fast-tracked an emergency appeal up to the 9th Circuit Court of Appeals where they lost again.

Brejcha took note that increasingly outspoken and widespread protest on the part of people of faith, on top of  President Trump’s recent remarks calling for churches to be allowed to reopen, and buttressed by a “letter brief” from the United States Department of Justice which argued that California has been violating constitutionally guaranteed rights, may have had an impact. Governor Newsom has reportedly said that he will soon make a statement about allowing religious services to resume.

“But we still need the United States Supreme Court to weigh in on this critical matter to ensure that state or local officials refrain now and forever from governing by decree to curtail constitutional rights,” declared Brejcha, who noted that relief is now sought for Sunday, May 31, which is Pentecost, a significant day in the Christian church.

Judge Collins, in his dissent from the 9^th Circuit panel’s denial of any emergency relief, which would have allowed the church to hold services, scored compelling points in his lengthy, persuasive opinion. He argued:

• The First Amendment’s Free Exercise Clause provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” South Bay United Pentecostal Church, et al “have established a very strong likelihood of success on the merits of this claim.”
• California’s contention is that constitutional standards that would normally govern our review of a Free Exercise claim should not be applied, yet the state cites “no authority that can justify its extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights.”
• California did not simply “proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space.” Instead, it “presumptively prohibited California residents from leaving their homes for any reason,” other than when an exception “granted back the freedom to conduct particular activities or to travel back and forth to such activities.”
• San Diego County’s May 20, 2020, reopening of both dine-in restaurants and in-store retail businesses was allowed, yet “religious services” are explicitly assigned to a later stage with “movie theaters” and other “personal & hospitality services.” By explicitly and categorically assigning all in-person “religious services” to a future phase without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services, the state “discriminates on its face against religious conduct.”
• Warehousing and manufacturing facilities are categorically permitted to open, so long as they follow specified guidelines. But in-person “religious services”—merely because they are “religious services”—are categorically not permitted to take place even if they follow the same guidelines.

The Church offered a wide range of measures they are ready and willing to implement on reopening, including spacing out the seating, requiring congregants to wear face coverings, prohibiting the congregation from singing, and banning hugging, handshakes, and hand-holding. Judge Collins points out that the state’s only response was to insist that there is too much risk that congregants will not follow these rules. He notes that it is illogical to assume “that the very same people who cannot be trusted to follow the rules at their place of worship can be trusted to do so at their workplace and that the state cannot assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Collins urges California to “honor its constitutional duty to accommodate a critical element of the free exercise of religion—public worship.”

Read the Emergency Application for Writ of Injunction Relief Requested by Sunday, May 24, 2020, on behalf of South Bay United Pentecostal Church and Bishop Arthur Hodges III, filed May 23, 2020, with the United States Supreme Court in South Bay United Pentecostal Church, et al v. Gavin Newsom, et al, here.

Read the United States Court of Appeals for the Ninth Circuit’s denial of South Bay United Pentecostal Church’s emergency motion for injunctive relief pending appeal issued by Circuit Judges Barry G. Silverman and Jacqueline H. Nguyen, on May 22, 2020, followed by Judge Daniel P. Collins’ dissent favoring the motion for South Bay United Pentecostal Church as filed by the Thomas More Society here.