SOUTH BAY UNITED PENTECOSTAL No. 20-56358 CHURCH, a California nonprofit corporation; BISHOP ARTHUR HODGES D.C. No. III, an individual, 3:20-cv-00865-BAS-AHG

Plaintiffs-Appellants, OPINION 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; WILLIAM D. GORE, in his official capacity as Sheriff of the County of San Diego,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted January 15, 2021 Pasadena, California Before: Kim McLane Wardlaw and Richard R. Clifton, Circuit Judges, and Timothy Hillman, * District Judge.

Opinion by Judge Wardlaw

The State of California is facing its darkest hour in its fight against the COVID-19 pandemic, with case counts so high that intensive care unit capacity is at 0% in most of Southern California. To slow the surging community spread, California’s public health and epidemiological experts have crafted a complex set of regulations that restrict various activities based on their risk of transmitting the disease and the projected toll on the state’s healthcare system. Under this framework, California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services “essential,” but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk.

South Bay United Pentecostal Church challenged this restriction, along with others, under provisions of the United States and California Constitutions. In its challenge brought under the Free Exercise Clause of the First Amendment of the United States Constitution, South Bay argues that the current restrictions on indoor services prohibit congregants’ Free Exercise of their theology, which requires

* The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation.

2 gathering indoors. The district court made multiple findings of fact on an extensive evidentiary record and concluded that California’s restrictions on indoor worship are narrowly tailored to meet its compelling—and immediate—state interest in stopping the community spread of the deadly coronavirus. Because we conclude that the district court did not abuse its discretion, we affirm its denial of South Bay’s request to enjoin California’s temporary prohibition on indoor worship under the Regional Stay at Home Order and Tier 1 of the Blueprint. We also conclude that South Bay has not demonstrated a likelihood of success on the merits with respect to its challenge to California’s state-wide ban on indoor singing and chanting. We cannot, however, conclude that the 100- and 200-person attendance caps on indoor worship under Tiers 2 and 3 of the Blueprint survive strict scrutiny. 1

I.

A.

1.

California’s Early Response to COVID-19

1 We grant California’s motion to take judicial notice of the updated county and state regulations and federal FAA regulations (ECF No. 26) because they are publicly available and neither party dispu