(Photo via Brian Turner/Flickr)

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.

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

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

Joe Dworetzky is a second career journalist. He practiced law in Philadelphia for more than 35 years, representing private and governmental clients in commercial litigation and insolvency proceedings. Joe served as City Solicitor for the City of Philadelphia under Mayor Ed Rendell and from 2009 to 2013 was one of five members of the Philadelphia School Reform Commission with responsibility for managing the city’s 250 public schools. He moved to San Francisco in 2011 and began writing fiction and pursuing a lifelong interest in editorial cartooning. Joe earned a Master’s in Journalism from Stanford University in 2020. He covers Legal Affairs and writes long form Investigative stories. His occasional cartooning can be seen in Bay Area Sketchbook. Joe encourages readers to email him story ideas and leads at [email protected].