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Two federal district judges and two different panels of the Ninth Circuit Court of Appeals closed their eyes ever so tightly to prevent them from reading either the First Amendment or the very strong, very clear Supreme Court injunctions as they ruled that California’s rule prohibiting all indoor worship while in tier 4 is perfectly fine.

Pasadena News reports on 1/25/21 Harvest Rock Church Wins One, Loses One.

Catholic News Agency reports on 1/25/21 Appeals court rules on California churches that challenged Covid restrictions.

10 News reports on 1/23/21 – Appeals Court denies Chula Vista churches request reopen (sic)

Harvest Rock

Harvest Rock’s lawsuit against the ban on indoor worship service was reheard by the District Court after the Supreme Court issued a powerful injunction shredding every rationalization for banning worship services.

In spite of the exquisitely clear explanation in the injunction, on 12/22/20 the District Court found the restrictions on indoor worship to be perfectly reasonable and not at all an infringement on the First Amendment.

Harvest Rock appealed the decision. Sometime late last week (exact date is not clear to me) a panel of the 9th Circuit ruled against the church, finding the ban on indoor worship was acceptable.

While the panel’s inability to read Supreme Court injunctions is as surprising as it is unfortunate, the good news is this clears the way for the Supreme Court to address the issue directly. Again.

The church is moving forward with an appeal to the Supreme Court.

In a separate ruling on 1/25/21, a panel of the Ninth Circuit ruled the state may not enforce the fixed indoor limits of 100 in tier 2 and 200 in tier 3. Instead, a percentage of capacity limit must be used.

One judge concurred with the ruling on the fixed attendance ban and in his concurring decision wrote a scathing denunciation of the flagrant constitutional violations of the total ban on worship in tier 4. This judge indicated the ruling in the South Bay case is flagrantly in violation of the Supreme Court injunction. Of course, his more tactful comment said the decision is “woefully out of step” with the Supreme Court ruling.

Here are a few of his comments:

“We should have little trouble concluding that the severe measures violate the Free Exercise Clause of the First Amendment.”

And

“First, there can be no doubt that California’s discriminatory treatment of houses of worship must be subject to strict scrutiny.”

“Second, the controlling decisions also eliminate any notion that California’s measures withstand such scrutiny.”

A footnote in his concurring opinion illustrates the contempt the state government has for people of faith. Testimony from an epidemiologist (an epidemiologist!), was accepted as conclusive proof that the only reason people worship is to get together. Lest you think I exaggerate, here is the last half of the footnote:

“(T)he views of an epidemiologist can hardly compel deference in matters of religion (emphasis in original). Thus I see no reason for our court to have credited an epidemiologist’s assertion that individuals come to places of worship for the specific “purpose of being together,”… as opposed to any number of relevant private religious purposes-such as to pray to God within in the sacred and spiritually uplifting confines of a church, synagogue, or mosque.”

Or sing praises to God.

Or hear sacred text explained by a learned member of the faith tradition in a context in which the teacher can see and read reaction of those gathered together and adjust his or her teaching accordingly.

Or to receive blessed sacred sacraments which can only be performed in person.

Or, for Christians, to avoid violating commands from sacred scripture such as “do not forsake gathering together”, which is merely the first verse of many which comes to mind.

Or comfort can be given to those who are grieving or suffering. You can only “weep with those who weep” when you see the tears forming in someone’s eyes or hear the crack in someone’s voice.

Or, for Orthodox Jews, to hold a worship which deeply held tradition says can only happen when 10 or more adult males are gathered together, meaning in person.

Or, for Muslims, additional reasons which I don’t know because I don’t understand the deeply held beliefs of the Islamic faith in terms of how worship should be conducted.

At least one epidemiologist is totally, completely ignorant of every one of those issues.

Let me summarize that appalling testimony which the court considers credible – An epidemiologist, whose testimony indicates he has not the foggiest clue about matters of faith knows what people of faith believe. He or she asserts the deeply held spiritual beliefs of devout religious people are completely irrelevant to their exercise of their religious freedom.

South Bay United Pentecostal Church

South Bay United Pentecostal Church in Chula Vista also had their request for an injunction reheard at the District Court level after the Supreme Court’s injunction required their case to be reheard in light of their very clear explanation.

The District Court denied the church’s request for an injunction.

The church appealed.

A panel of the Ninth Circuit also denied the injunction on 1/22/21. The panel did however find the church likely to succeed in its claim that the fixed limits of 100 and 200 people are violations of the Constitution. The panel ordered the District Court to rehear that portion of the case.

Articles quote various comments in the ruling, which include:

“California’s restrictions on indoor worship are narrowly tailored to meet its compelling-and immediate-state interest in step in the community spread of the deadly coronavirus.

I have not read the ruling but cannot fathom how a complete ban on worship service can possibly be considered “narrowly tailored.”

According to the article one judge said:

“We are mindful that ‘even in a pandemic, the Constitution cannot be put away and forgotten’ (which is a quote from the Supreme Court injunction)… But we do not think this is what California has done.”

Well, perhaps I should change to the opening to this post. That quote indicates the judges have actually read the Supreme Court’s ruling.

They just ignored it.

That the judges ignored the Supreme Court was made clear by the judge in the Harvest Rock case who said:

“ ‘(E)ven in a pandemic, the Constitution cannot be put away and forgotten’ (again quoting the Supreme Court injunction) … Thus, as both the Supreme Court and our court have agreed: even in a case with such vital interests on each side, the balance of harms in the public interest require us to enjoin the State’s unconstitutional practices. Indeed neither court appears to have had much difficulty reaching such a conclusion.”

(Pause for dramatic effect…)

“Until now.”

In other words, the District Court and 9th Circuit have now intentionally, knowingly, deliberately “put away and forgotten” the First Amendment of the Constitution.


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