                               FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         MAY 22 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

SOUTH BAY UNITED PENTECOSTAL                     No. 20-55533
CHURCH, a California nonprofit
corporation; BISHOP ARTHUR HODGES                D.C. No. 3:20-cv-00865-BAS-AHG
III, an individual,                              Southern District of California,
                                                 San Diego
                Plaintiffs-Appellants,
                                                 ORDER
 v.

GAVIN NEWSOM, in his official capacity
as the Governor of California; XAVIER
BECERRA, in his official capacity as the
Attorney General of California; SONIA
ANGELL, in her official capacity as
California Public Health Officer; WILMA J.
WOOTEN, in her official capacity as Public
Health Officer, County of San Diego;
HELEN ROBBINS-MEYER, in her official
capacity as Director of Emergency Services;
WILIAM D, GORE, in his official capacity
as Sheriff of the County of San Diego,

                Defendants-Appellees.

Before: SILVERMAN, NGUYEN, and COLLINS, Circuit Judges.

      This appeal challenges the district court’s denial of appellants’ motion for a

temporary restraining order and order to show cause why a preliminary injunction

should not issue in appellants’ challenge to the application of the State of

California and County of San Diego’s stay-at-home orders to in-person religious

LCC/MOATT
services. Appellants have filed an emergency motion seeking injunctive relief

permitting them to hold in-person religious services during the pendency of this

appeal.

      We have jurisdiction to review the denial of a temporary restraining order

where, as here, “the circumstances render the denial ‘tantamount to the denial of a

preliminary injunction.’” Religious Tech. Ctr., Church of Scientology Int’l, Inc. v.

Scott, 869 F.2d 1306, 1308 (9th Cir. 1989) (internal citation omitted); see also 28

U.S.C. § 1292(a)(1). Accordingly, the motion to dismiss for lack of jurisdiction

(Docket Entry No. 24) is denied.

      The request to take judicial notice (Docket Entry No. 25) is granted.

      In evaluating a motion for an injunction pending appeal, we consider

whether the moving party has demonstrated that they are likely to succeed on the

merits, that they are likely to suffer irreparable harm in the absence of preliminary

relief, that the balance of equities tips in their favor, and that an injunction is in the

public interest. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);

see also Feldman v. Ariz. Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir. 2016)

(“The standard for evaluating an injunction pending appeal is similar to that

employed by district courts in deciding whether to grant a preliminary

injunction.”).




LCC/MOATT                                   2                                      20-55533
        We conclude that appellants have not demonstrated a sufficient likelihood of

success on appeal. Where state action does not “infringe upon or restrict practices

because of their religious motivation” and does not “in a selective manner impose

burdens only on conduct motivated by religious belief,” it does not violate the First

Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508

U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often

fatal disease for which there presently is no known cure. In the words of Justice

Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little

practical wisdom, it will convert the constitutional Bill of Rights into a suicide

pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J.,

dissenting).

        The remaining factors do not counsel in favor of injunctive relief. See

Winter, 555 U.S. at 20. We therefore deny the emergency motion for injunctive

relief pending appeal (Docket Entry No. 2).1




1
    Judge Collins would grant the motion and has filed a dissent.

LCC/MOATT                                  3                                    20-55533
                                                                           FILED
South Bay United Pentecostal Church v. Newsom, No. 20-55533
                                                                           MAY 22 2020
COLLINS, Circuit Judge, dissenting:                                    MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

      Plaintiffs-Appellants South Bay United Pentecostal Church (the “Church”)

and its Bishop, Arthur Hodges III (collectively, “Plaintiffs”), move for a

preliminary injunction pending appeal that would allow them to conduct in-person

church services. The State of California’s refusal to allow them to hold such

services likely violates the Free Exercise Clause of the First Amendment, and so I

would grant the requested injunction. Because the majority concludes otherwise, I

respectfully dissent.

                                           I

      The Church is a Christian congregation in Chula Vista, California. Until the

recent COVID-19 pandemic, the Church held between three and five Sunday

services every week, which would attract 200–300 congregants each. Its sanctuary

seats 600.

      On March 19, 2020, Governor Gavin Newsom issued Executive Order N-

33-20. The order generally required “all individuals living in the State of

California to stay home or at their place of residence except as needed to maintain

continuity of operations of the federal critical infrastructure sectors.” The federal

list of critical sectors did not include churches. The State public health officer

subsequently designated a comprehensive set of “Essential Critical Infrastructure


                                           1
Workers.” That list designated clergy as essential, but only if they were holding

services “through streaming or other technologies that support physical distancing

and state public health guidelines.”

      On April 28, the Governor announced a four-stage “Reopening Plan” or

“Resilience Roadmap,” under which the State would initially relax the stay-at-

home order for some organizations but not others. At Stage 1, only “critical

infrastructure” was exempted. At Stage 2, curbside retail and additional factories

making previously non-essential “things like toys, clothing, . . . [and] furniture”

would be permitted to reopen. Stage 2 entities also included ones that would

reopen at a later date within that stage, such as schools (in an adapted form),

childcare, dine-in restaurants, outdoor museums, “destination retail, including

shopping malls and swap meets,” and office-based businesses where telework is

not possible. At Stage 3, “higher risk workplaces” like churches could reopen,

along with bars, movie theaters, hair salons, and “more personal & hospitality

services.” And at Stage 4, concerts, conventions, and spectator sports could

reopen. The Governor predicted that while Phase 2 would begin in “weeks, not

months,” Phase 3 would begin in “months, not weeks.”

      On May 4, the Governor announced that Stage 2 would commence within a

week. On May 8, Plaintiffs sued the Governor and several other state officers

(collectively, “the State”) as well as various local officials, claiming that the


                                           2
Reopening Plan’s decision to place churches within Stage 3 instead of Stage 2

violated the Free Exercise Clause of the First Amendment. The County of San

Diego implemented the Reopening Plan in an order dated May 9, 2020. Plaintiffs

filed an amended complaint on May 11.

       On May 15, 2020, the district court denied Plaintiffs’ motion for both a

temporary restraining order (“TRO”) and an order to show cause (“OSC”) why a

preliminary injunction allowing the Church to hold in-person services should not

issue. Plaintiffs appealed and concurrently moved for a preliminary injunction in

this court.

                                          II

       We have jurisdiction over this appeal under our controlling decision in

Religious Tech. Ctr., Church of Scientology Int’l, Inc. v. Scott, 869 F.2d 1306 (9th

Cir. 1989).1 Both in Religious Tech. Ctr. and in this case, the plaintiffs filed a

motion for a TRO and for an OSC why a preliminary injunction should not issue;

the district court denied the motion “for a TRO and an OSC following a hearing at

which all parties were represented”; and the specific grounds on which the district

court denied the motion “foreclosed any interlocutory relief.” Id. at 1308–09. As

to the latter point, the district court below agreed with the State that the Reopening


1
  The State questioned our jurisdiction in its initial opposition to Plaintiffs’ motion
in this court, but it did not renew that objection in its subsequent formal opposition.
Nonetheless, we have an obligation to consider the issue sua sponte.

                                           3
Plan is a “neutral law of general application” that is therefore subject only to

rational basis review under Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993). Given that this threshold legal conclusion is

indisputably fatal to Plaintiffs’ Free Exercise claim, “[t]he futility of any further

hearing was thus patent; there was nothing left to talk about.” Id. at 1309. The

order was thus “tantamount to a denial of a preliminary injunction,” id. at 1308,

and we therefore have jurisdiction under 28 U.S.C. § 1292(a)(1).

                                           III

       Plaintiffs seek a preliminary injunction pending appeal, and the standards for

such relief are well-settled. “A plaintiff seeking a preliminary injunction must

establish that he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the balance of equities

tips in his favor, and that an injunction is in the public interest.” Winter v. Natural

Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). “Under our ‘sliding scale’

approach, ‘the elements of the preliminary injunction test are balanced, so that a

stronger showing of one element may offset a weaker showing of another.’”

Hernandez v. Sessions, 872 F.3d 976, 998 (9th Cir. 2017) (quoting Pimentel v.

Dreyfus, 670 F.3d 1096, 1105 (9th Cir. 2012)). Here, all of these factors favor the

Plaintiffs.




                                            4
                                          A

      In seeking injunctive relief pending appeal, Plaintiffs principally rely on

their claim under the First Amendment’s Free Exercise Clause, which provides that

“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof.” U.S. CONST. amend. I (emphasis added).

This restriction is fully applicable to the States through the Fourteenth

Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). I conclude that

Plaintiffs have established a very strong likelihood of success on the merits of their

Free Exercise claim.

                                          1

      As a threshold matter, the State contends that, in light of the ongoing

pandemic, the constitutional standards that would normally govern our review of a

Free Exercise claim should not be applied. “Although the Constitution is not

suspended during a state of emergency,” the State tells us, “constitutional rights

may be reasonably restricted ‘as the safety of the general public may demand’”

(quoting Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)). According to the

State, the current emergency conditions preclude us from applying Lukumi’s

familiar framework for evaluating Free Exercise claims and require us instead to

apply Jacobson’s “highly deferential” standard of review, under which we are

supposedly limited “‘to a determination of whether the [Governor’s] actions were


                                          5
taken in good faith and whether there is some factual basis for [the] decision’”

(quoting United States v. Chalk, 441 F.2d 1277, 1281 (4th Cir. 1971)). As the

State sees it, there is no “reason why Jacobson would not extend to the First

Amendment and other constitutional provisions” (emphasis added). I am unable to

agree with this argument, which seems to me to be fundamentally inconsistent with

our constitutional order. Cf. Sterling v. Constantin, 287 U.S. 378, 397–98 (1932)

(“If this extreme position could be deemed to be well taken, it is manifest that the

fiat of a state Governor, and not the Constitution of the United States, would be the

supreme law of the land; that the restrictions of the Federal Constitution upon the

exercise of state power would be but impotent phrases[.]”).

      The State’s motion 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, as long as he has acted in “good faith” and has “some factual

basis” for his edicts. Nothing in Jacobson supports the view that an emergency

displaces normal constitutional standards. Rather, Jacobson provides that an

emergency may justify temporary constraints within those standards. As the

Second Circuit has recognized, Jacobson merely rejected what we would now call

a “substantive due process” challenge to a compulsory vaccination requirement,

holding that such a mandate “was within the State’s police power.” Phillips v. City

of New York, 775 F.3d 538, 542 (2d Cir. 2015); see also Zucht v. King, 260 U.S.


                                          6
174, 176 (1922) (Jacobson “settled that it is within the police power of a state to

provide for compulsory vaccination”). Jacobson’s deferential standard of review

is appropriate in that limited context. It might have been relevant here if Plaintiffs

were asserting a comparable substantive due process claim, but they are not.

      Instead, Plaintiffs assert a claim under the Free Exercise Clause, whose

standards are well-established and which applies to the States under the Fourteenth

Amendment. Cantwell, 310 U.S. at 303. Jacobson had no occasion to address a

Free Exercise claim, because none was presented there. (That is unsurprising,

because the Free Exercise Clause had not yet been held to apply to the States when

Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently,

Jacobson says nothing about what standards would apply to a claim that an

emergency measure violates some other, enumerated constitutional right; on the

contrary, Jacobson explicitly states that other constitutional limitations may

continue to constrain government conduct. See 197 U.S. at 25 (emergency public

health powers of the State remain subject “to the condition that no rule . . . shall

contravene the Constitution of the United States, nor infringe any right granted or

secured by that instrument”). The State suggests that the Second Circuit’s decision

in Phillips applied Jacobson to bar a First Amendment challenge, but Phillips

actually confirms my narrower reading of Jacobson. After applying Jacobson to

reject the plaintiffs’ substantive due process challenge to New York’s vaccination


                                           7
requirement, the court then addressed (and rejected) the plaintiffs’ Free Exercise

challenge by applying not Jacobson, but the familiar Lukumi framework that

governs all Free Exercise claims. See Phillips, 775 F.3d at 543.

      The Fourth Circuit’s decision in Chalk likewise provides no support for the

State’s position. In Chalk, the defendants were pulled over for driving at 11:00

PM in violation of Asheville, North Carolina’s four-night curfew, and a search of

their car revealed dynamite caps and other “materials from which an incendiary

bomb could be readily produced.” See 441 F.2d at 1278–79. On appeal from the

defendants’ subsequent convictions, the Fourth Circuit rejected the defendants’

challenge to the traffic stop, which was “focused on the curfew imposed by the

mayor as a restriction on their right to travel.” Id. at 1283 (emphasis added).

Applying a deferential standard of review, the court held that the temporary travel

restrictions imposed by the short-lived curfew were justified in light of the

significant civil unrest in Asheville that had led to the curfew order. Id. at 1282–

83. Given that the defendants were not engaged in any expressive (or religious)

activity while driving, the First Amendment was not directly implicated by the

traffic stop in Chalk, and so the decision has little relevance here. If anything,

Chalk’s discussion of the First Amendment undercuts the State’s argument. The

Fourth Circuit stated in dicta that any incidental impact on First Amendment rights

from the curfew would be governed by the intermediate scrutiny standard of


                                           8
United States v. O’Brien, 391 U.S. 367 (1968), and the court likened the brief

restriction on travel to a time, place, and manner restriction. See 441 F.2d at 1280–

81, 1283. The fact that Chalk attempted to fit its comments within such existing

First Amendment categories refutes the State’s notion that the existence of an

emergency results in a wholesale displacement of conventional constitutional

standards.

      Moreover, the State overlooks that we have expressly rejected a comparably

broad reading of Chalk in addressing a First Amendment challenge to “an

emergency order prohibiting access to portions of downtown Seattle, Washington,

during the 1999 World Trade Organization (WTO) conference.” Menotti v. City of

Seattle, 409 F.3d 1113, 1117, 1142 n.55 (9th Cir. 2005). Instead of applying a

broad “‘emergency exception’” based on Chalk, we analyzed the emergency order

within the rubric of established First Amendment time, place, and manner

principles, which we held provided ample room to “take[] into account a balance

of the competing considerations of expression and order.” Id. at 1142 & n.55.

      Accordingly, I conclude that Plaintiffs’ challenge must be evaluated under

the traditional Lukumi framework that governs Free Exercise claims. 2


2
  Notably, the State does not cite or rely upon the circuit court decision that most
directly supports its reading of Jacobson, which is In re Abbott, 954 F.3d 772 (5th
Cir. 2020). For the reasons stated, I am unable to agree with the Fifth Circuit’s
conclusion that “Jacobson instructs that all constitutional rights may be reasonably
restricted to combat a public health emergency.” Id. at 786 (emphasis in original);

                                         9
                                            2

      In addressing a Free Exercise claim under Lukumi, the first question is

whether the challenged restriction is one “that is neutral and of general

applicability.” 508 U.S. at 531. If the answer is yes, then “we review [it] for a

rational basis.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1084 (9th Cir. 2015).

If the answer is no, then the restriction is subject to strict scrutiny—that is, it “must

be justified by a compelling governmental interest and must be narrowly tailored to

advance that interest.” Lukumi, 508 U.S. at 531–32. In denying the requested

relief, the district court held that the State’s Reopening Plan is a “neutral law of

general application” and that it “is rationally based on protecting safety and

stopping the virus spread.” Alternatively, the district court held that the Reopening

Plan is narrowly tailored to promote the State’s compelling interest in public

health. 3 In my view, Plaintiffs have a high likelihood of success in their appeal of

these rulings.




see also In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (generally endorsing
the Fifth Circuit’s description of emergency powers under Jacobson). Beyond that
limited observation, I express no view on the very different substantive
constitutional questions presented in those cases.
3
  The district court actually reached this alternative conclusion in the context of
addressing Plaintiffs’ likelihood of success on their Free Exercise claim under the
California Constitution. Reliance on the California Constitution, however, would
be inappropriate here. See Pennhurst State School & Hosp. v. Halderman, 465
U.S. 89 (1984).

                                           10
                                            a

      As the Supreme Court explained in Lukumi, “the minimum requirement of

neutrality is that a law not discriminate on its face.” 508 U.S. at 533. Accordingly,

where a regulation’s operative language restricts conduct by explicit reference to

the conduct’s religious character, it is not facially neutral. Id. (citing the law at

issue in McDaniel v. Paty, 435 U.S. 618 (1978), which applied specifically to

members of the clergy, as an example of a law that on its face “imposed special

disabilities on the basis of religious status”) (cleaned up). Because the restrictions

at issue here explicitly “reference . . . religious practice, conduct, belief, or

motivation,” they are not “facially neutral.” Stormans, 794 F.3d at 1076.

      In framing its restrictions in response to the pandemic, California did not

purport simply to 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, Executive Order

N-33-20 presumptively prohibited California residents from leaving their homes

for any reason, except to the extent that an exception to that order granted back the

freedom to conduct particular activities or to travel back and forth to such

activities. See Cal. Exec. Order N-33-20 (Mar. 19, 2020)4 (ordering “all



4
 See https://www.gov.ca.gov/wp-content/uploads/2020/03/3.19.20-attested-EO-N-
33-20-COVID-19-HEALTH-ORDER.pdf.

                                            11
individuals living in the State of California to stay home or at their place of

residence except as needed to maintain continuity of operations of the federal

critical infrastructure sectors,” except as the State “may designate additional

sectors as critical”).5 In announcing its Reopening Plan, the State has adopted a

phased approach that will progressively add more and more exceptions to the

baseline stay-at-home prohibition by designating additional specific categories of

activities that, in the State’s judgment, do not present an undue risk to public

health. See Order of the Cal. Pub. Health Officer (May 7, 2020) 6 (“I will

progressively designate sectors, businesses, establishments, or activities that may

reopen with certain modifications, based on public health and safety needs, and I

will add additional sectors, businesses, establishments, or activities at a pace

designed to protect public health and safety.”).

      As set forth by the State, the four-stage Reopening Plan assigns “retail

(curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and

in-store retail, “child care, offices & limited hospitality, [and] personal services” to




5
 Even the most ardent proponent of a broad reading of Jacobson must pause at the
astonishing breadth of this assertion of government power over the citizenry,
which in terms of its scope, intrusiveness, and duration is without parallel in our
constitutional tradition. But since Plaintiffs do not directly challenge the validity
of the original Order here, I do not address the point further.
6
 See https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20
Library/COVID-19/SHO%20Order%205-7-2020.pdf.

                                          12
a later portion of Phase 2. (On May 20, 2020, San Diego County was given

approval to begin this later portion of Phase 2; it aims to promptly reopen both

dine-in restaurants and in-store retail businesses.7) By contrast, “religious

services” are explicitly assigned to a “Stage 3” that also includes “movie theaters”

and other “personal & hospitality services.” All reopenings under the Plan are

subject to detailed, activity-by-activity State guidance that sets forth the specific

actions that each activity (such as “manufacturing” or “warehousing facilities”)

must take (e.g., use of face coverings, social distancing, sanitation, and employee

training) in order to reopen, and to stay open.

      By explicitly and categorically assigning all in-person “religious services” to

a future Phase 3—without any express regard to the number of attendees, the size

of the space, or the safety protocols followed in such services 8—the State’s

Reopening Plan undeniably “discriminate[s] on its face” against “religious

conduct.” Lukumi, 508 U.S. at 533. Although the State insists that it has not acted

out of antipathy towards religion, the “constitutional benchmark is ‘government



7
 See Lori Weisberg, San Diego County gets the OK from state to resume dining-in
at restaurants, SAN DIEGO UNION-TRIBUNE (May 20, 2020),
https://www.sandiegouniontribune.com/business/story/2020-05-20/san-diego-
county-gets-the-ok-from-state-to-resume-dining-in-at-restaurants.
8
 In this respect, this case differs from Roberts v. Neace, __ F.3d __, 2020 WL
2316679 (6th Cir. May 9, 2020), in which the challenged order prohibited “[a]ll
mass gatherings,” and “faith-based” events were merely listed as one example of
such “mass gatherings.” Id. at *1, 3.

                                          13
neutrality,’ not ‘government avoidance of bigotry.’” Roberts, 2020 WL 2316679,

at *4 (quoting Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir.

2008)). Because the Reopening Plan, on its face, is not neutral, it is subject to

strict scrutiny. Lukumi, 508 U.S. at 531–32.

                                          b

      Even if the Reopening Plan were not facially discriminatory, it would still

fail Lukumi’s additional requirement that the restrictions be “of general

applicability.” 508 U.S. at 531.

      Under California’s approach—in which an individual can leave the home

only for the enumerated purposes specified by the State—these categories of

authorized activities provide the operative rules that govern one’s conduct. While

the resulting highly reticulated patchwork of designated activities and

accompanying guidelines may make sense from a public health standpoint, there is

no denying that this amalgam of rules is the very antithesis of a “generally

applicable” prohibition. The State is continually making judgments, at the

margins, to decide what additional activities its residents may and may not engage

in, and thus far, “religious services” have not made the cut. I am at a loss to

understand how the State’s current maze of regulations can be deemed “generally

applicable.” See Ward v. Polite, 667 F.3d 727, 740 (6th Cir. 2012) (“At some

point, an exception-ridden policy takes on the appearance and reality of a system


                                          14
of individualized exemptions, the antithesis of a neutral and generally applicable

policy.”).

      The State contends that its plan is generally applicable because it assertedly

classifies activities neutrally, in accordance with the State’s sense of their

perceived risk. But that is not how the Reopening Plan works. 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. This is, by definition, not a generally applicable

regulation of underlying physical conduct.

                                            3

      The only remaining question is whether the Reopening Plan’s treatment of

religious services satisfies strict scrutiny. The district court concluded that it did,

but that is plainly wrong.

      The State’s undeniably compelling interest in public health “could be

achieved by narrower [regulations] that burdened religion to a far lesser degree.”

Lukumi, 508 U.S. at 546. As Plaintiffs have reiterated throughout these

proceedings, they will “comply[] with every single guideline that other businesses

are required to comply with.” In their papers in the district court, Plaintiffs

provided a list illustrating the range of measures they are ready and willing to


                                           15
implement on reopening, including spacing out the Church’s seating, requiring

congregants to wear face coverings, prohibiting the congregation from singing, and

banning hugging, handshakes, and hand-holding. By regulating the specific

underlying risk-creating behaviors, rather than banning the particular religious

setting within which they occur, the State could achieve its ends in a manner that is

the “least restrictive way of dealing with the problem at hand.” Roberts, 2020 WL

2316679, at *5.9

      The State’s only response on the narrow-tailoring point is to insist that there

is too much risk that congregants will not follow these rules. But as the Sixth

Circuit recently explained in Roberts, the State’s position on this score illogically

assumes 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: 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.”

Roberts, 2020 WL 2316679, at *3.

                                   *       *       *

      Therefore, I conclude that Plaintiffs are highly likely to succeed on the

merits of their Free Exercise Clause claim.


9
 On this score, it is noteworthy that, earlier today, the CDC issued “Interim
Guidance for Communities of Faith.” See https://www.cdc.gov/coronavirus/2019-
ncov/php/faith-based.html.

                                          16
                                            B

      All of the remaining considerations strongly favor the entry of an injunction

pending appeal. The Bishop’s inability to hold in-person worship services, and the

Church members’ inability to attend them, are certainly irreparable injuries. Elrod

v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably constitutes irreparable injury.”);

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 1008

(10th Cir. 2004) (en banc) (Seymour, J., concurring in relevant part for a majority

of the court) (“[T]he violation of one’s right to the free exercise of religion

necessarily constitutes irreparable harm.”), aff’d sub nom. Gonzales v. O Centro

Espirita Beneficiente Uniao Do Vegetal, 546 U.S. 418 (2006). The injury here is

particularly poignant, given that Pentecost—which the eponymously named

Church greatly desires to celebrate—falls on May 31. Indeed, the State explicitly

“does not question the sincerity of Plaintiffs’ belief that it is essential to gather in

person for worship services.”

      I do not doubt the importance of the public health objectives that the State

puts forth, but the State can accomplish those objectives without resorting to its

current inflexible and overbroad ban on religious services. The balance of equities,

and the public interest, strongly favor requiring the State to honor its constitutional




                                           17
duty to accommodate a critical element of the free exercise of religion—public

worship.

      For these reasons, I would grant Plaintiffs’ request for a preliminary

injunction. I respectfully dissent.




                                         18
