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A divided panel of the U.S. Court of Appeals for the 9th Circuit on Thursday refused to enjoin California Gov. Gavin Newsom’s executive order restricting in-person worship because of the risk of spreading Covid-19.

The governor’s order forbids in-person worship services in “Tier 1” counties where the Covid-19 risks are greatest and limits them to the lesser of 100 people or 25 percent of capacity in lower-risk “Tier 2” counties. Similar but more relaxed restrictions apply in Tier 3 and 4 counties.

In September, a federal district court in Los Angeles rejected a challenge to the executive order based on the argument that the limitations infringed on religious freedom and violated the First Amendment of the U.S. Constitution. The plaintiffs in that case appealed and asked the appellate court for an emergency order blocking Newsom’s order during the appeal.

Ching Wong/SFBay Pictured here: Mission Dolores Basilica Church in San Francisco, Calif., on Wednesday, October 10, 2018. California Covid-19 health orders restrict capacity for indoor religious services at different rates depending on how well each county is mitigating the virus spread.

The majority rejected the emergency request on grounds that the restrictions on worship were based on the health risks of group activity and were similar to restrictions placed on other indoor non-religious activities in the same counties, such as lectures, movie theaters, concerts and sporting events. Given the serious health risks of Covid-19 spread and the neutral character of the restrictions, the majority found there was no constitutional violation.

The dissenting judge agreed that protecting public health was a compelling objective, but found that the order permitted many non-religious activities that posed equal or greater health risks.

According to the dissent:

“(I)n these same counties, the State still allows people to go indoors to: spend a day shopping in the mall, have their hair styled, get a manicure or pedicure, attend college classes, produce a television show or movie, participate in professional sports, wash their clothes at a laundromat, and even work in a meatpacking plant.”

While the dissent believed that neutral regulation of religious worship in the name of combating a serious danger to public health would be appropriate, it added:

“(T)he Constitution, emphatically, does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities.”

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