Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 1 of 20 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 12 CROSS CULTURE CHRISTIAN CENTER, a California NonProfit Corporation; PASTOR JONATHAN DUNCAN, an individual, 13 14 15 16 17 18 19 20 21 22 23 24 25 Plaintiffs, No. 2:20-cv-00832-JAM-CKD ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER v. GAVIN NEWSOM, in his official capacity as Governor of California; XAVIER BECERRA, in his official capacity as the Attorney General of California; SONIA ANGELL, in her capacity as California Public Health Officer; MAGGIE PARK, in her official capacity as Public Health Officer, San Joaquin County; MARCIA CUNNINGHAM, in her official capacity as Director of Emergency Services, San Joaquin County; CITY OF LODI; TOD PATTERSON, in his official capacity as Chief of Police of Lodi, California, Defendants. 26 27 28 Cross Culture Christian Center (“Cross Culture Christian” or the “Church”) and its pastor, Jonathan Duncan, filed a ten-count 1 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 2 of 20 1 complaint against the City of Lodi, its police chief, and several 2 State and County officials. 3 stay-at-home orders Governor Newsom and San Joaquin County 4 enacted to slow the spread of COVID-19 (“State Order” and “County 5 Order”) impermissibly infringe upon their constitutional and 6 statutory rights to speak, assemble, and practice religion as 7 they choose. 8 temporary restraining order. 9 (“TRO”), ECF No. 4. Compl., ECF No. 1. They allege the Plaintiffs then filed an ex parte application for a Ex parte Application for TRO They request the Court enjoin enforcement of 10 the State and County orders against Cross Culture Christian so 11 long as the church complies with the CDC’s social distancing 12 guidelines while conducting its in-person services.1 13 The State Defendants opposed Plaintiffs’ motion. 14 Angell, Xavier Becerra, Gavin Newsom (“State Opp’n), ECF No. 15. 15 The County and City Defendants filed a joint opposition. 16 by City of Lodi, et al. (“Local Opp’n”). 17 leave for Americans United for the Separation of Church and State 18 to file a brief as amicus curiae in support of Defendants. 19 No. 18. Plaintiffs then filed a reply. TRO at 2. Opp’n by Sonia The Court also granted For the reasons set forth below, the Court DENIES 21 Plaintiffs’ request for a temporary restraining order. I. 23 ECF ECF No. 21. 20 22 Opp’n FACTUAL BACKGROUND Cross Culture Christian is a church in Lodi, California led 24 by Pastor Duncan. 25 used to hold Wednesday and Sunday services in the sanctuary of a 26 building it rented from Bethel Open Bible Church. 27 28 Compl. ¶¶ 17, 18. Cross Culture Christian Compl. ¶ 56. Plaintiffs’ ex parte application was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). 2 1 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 3 of 20 1 But in March 2019, Governor Newsom and San Joaquin County began 2 issuing stay at home orders to combat the rapid spread of COVID- 3 19. 4 these orders, eventually required the Church to stop holding in- 5 person services. 6 Compl. ¶¶ 31, 36. The Lodi Police Department, enforcing Compl. ¶ 75. In early March, Governor Newsom enacted Executive Order N- 7 33-20, a statewide “stay at home order.” Compl. ¶ 31. The order 8 directed California residents to “stay home or at their place of 9 residence except as needed to maintain continuity of operations 10 of the federal critical infrastructure services.” 11 Ex. A to Compl., ECF No. 1-1. 12 to “designate additional sectors as critical [to] protect the 13 health and well-being of all Californians.” 14 San Joaquin County followed suit. 15 at home order directing “all businesses and governmental agencies 16 to cease non-essential operations at physical locations in the 17 county” and prohibiting “all non-essential gatherings of any 18 number of individuals.” 19 County order also incorporated Executive Order N-33-20 by 20 reference. 21 Compl. ¶ 32; Governor Newsom reserved authority Id. Compl. ¶ 36. On March 21, It issued a stay Ex. 2 to Compl., ECF No. 1-2. The Id. at 1. As COVID-19 continued to spread, Governor Newsom and County 22 officials issued amendments containing increasingly stringent 23 restrictions. 24 forth with more specificity its list of “Essential Critical 25 Infrastructure Workers.” 26 1-6. 27 provided through streaming or other technology” as an essential 28 part of the “Other Community-Based Government Operations and Compl. ¶¶ 31-46. California’s March 22 order set Compl. ¶ 33; Ex. 6 to Compl., ECF No. The amendment designates “[f]aith based services that are 3 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 4 of 20 1 Essential Functions” sector. Ex. 6 to Compl. at 11. 2 otherwise makes no mention of faith, churches, religion, 3 religious workers, Christianity, worship, or prayer. 4 County’s March 26 order removed an exemption in the earlier order 5 that allowed six or fewer nonrelatives to meet at someone’s home 6 or place of residence. 7 Culture Christian nevertheless continued to hold in-person 8 services throughout the month of March. Compl. ¶¶ 63-65. Ex. 3 to Compl., ECF No. 1-3. The list The Cross 9 In response to the Church’s continued operation, three Lodi 10 police officers posted a notice on the building, explaining that 11 its non-essential use of the facility was a public nuisance. 12 Compl. ¶ 73. 13 Officer issued an Order Prohibiting Public Assembly to the 14 Church’s lessor, Bethel Open Bible Church. 15 Compl., ECF No. 1-4. 16 hold in-person services violated the State and County stay at 17 home orders. 18 willfully neglects to comply with this emergency order is guilty 19 of a misdemeanor, punishable by fine and/or imprisonment.” 20 Bethel Open Bible Church could, however, continue to operate its 21 child-care facility “consistent with the order of the State 22 Public Health Officer.” 23 Two days later, on April 3, a County Public Health Compl. ¶ 43; Ex. 4 to The order stated that allowing a tenant to The order concluded, “[a]ny person who refuses or Id. Id. The following Sunday, Duncan returned to Cross Culture 24 Christian. His landlord had changed the locks. 25 Lodi law enforcement barred access to the property under threat 26 of citation. Compl. 27 /// 28 /// Id. 4 Compl. ¶ 75. Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 5 of 20 1 II. OPINION 2 A. Judicial Notice 3 District courts may take judicial notice of “a fact that is 4 not subject to reasonable dispute because it: (1) is generally 5 known within the trial court’s territorial jurisdiction; or (2) 6 can be accurately and readily determined from sources whose 7 accuracy cannot reasonably be questioned.” 8 201(b). To this end, a court may take judicial notice “of court 9 filings and other matters of public record,” Fed. R. Evid. Reyn’s Pasta 10 Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 11 2006), including “government documents available from reliable 12 sources on the internet,” 13 Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 14 (E.D. Cal. Sept. 1, 2017). 15 California River Watch v. City of The State Defendants request the Court take judicial notice 16 of various filings, rulings, and hearing transcripts related to 17 motions for temporary restraining orders in the following cases: 18 Gish v. Newsom, No. 5:20-cv-00755-JGB-KK (C.D. Cal.); Abiding 19 Place Ministries v. Wooten, No. 3:20-cv-00683-BAS-AHG (S.D. 20 Cal.); Nigen v. New York, No. 1:20-cv-01567-EK-PK (E.D.N.Y.); 21 Tolle v. Northam, No. 1:20-cv-00363-LMB-MSN (E.D. Va.); 22 v. Sununu, NO. 217-2020-cv-00152 (N.H. Sup. Ct.); On Fire 23 Christian Ctr., Inc. v. Fischer, No. 3:20-cv-264-JRW (W.D. Ky.); 24 Temple Baptist Church v. City of Greenville, No. 4:20-cv-00064- 25 DMB-JMV (N.D. Miss.). 26 ECF No. 15-1. 27 Defendants”) request judicial notice of the following documents 28 issued by the state and federal government: Binford Grabarsky Decl. to State Opp’n ¶¶ 8-14, The City and County Defendants (“Local 5 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 6 of 20 1 • State of California’s Proclamation of a Statewide 2 Emergency, from the Executive Department, State of 3 California, signed by Governor Gavin Newsom on March 4, 4 2020; 5 • State of California Department – Health and Human Services 6 Agency, California Department of Public Health, Public 7 Guidance for the Prevention of COVID-19 Transmission for 8 Gatherings, dated March 16, 2020; 9 • Executive Order N-33-20, from the Executive Department of 10 the State of California, signed by Governor Gavin Newsom on 11 March 19, 2020; 12 • U.S. Department of Homeland Security Advisory Memorandum on 13 Identification of Essential Critical Infrastructure Workers 14 During COVID-19 Response, from Director Christopher C. 15 Krebs, dated March 28, 2020; and 16 • State of California Public Health Officer Designation of 17 Essential Critical Infrastructure Workers, dated April 28, 18 2020. 19 Local Defendants’ Request for Judicial Notice, ECF No. 17. 20 The court filings and government documents Defendants 21 reference are all proper subjects of judicial notice. 22 therefore GRANTS Defendants’ requests. 23 judicially notices “the contents of the documents, not the truth 24 of those contents.” 25 at *2 (C.D. Cal. April 23, 2020). In doing so, the Court Gish v. Newsom, No. EDCV 20-755-JGB(KKx), 26 B. 27 A party seeking a temporary restraining order must 28 The Court Legal Standard establish (1) he is likely to succeed on the merits; (2) he is 6 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 7 of 20 1 likely to suffer irreparable harm absent preliminary relief; (3) 2 the balance of equities tips in his favor, and (4) an injunction 3 is in the public interest. 4 Inc., 555 U.S. 7, 20 (2008); see also Stuhlbarg Intern Sales 5 Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832, 839 n.7 6 (9th Cir. 2001). 7 temporary restraining orders when there are “serious questions 8 going to the merits” and a “balance of hardships that tips 9 sharply towards the plaintiff” so long as the remaining two Winter v. Nat. Res. Def. Council, In the Ninth Circuit, courts may also issue 10 Winter factors are present. Alliance for Wild Rockies v. 11 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). 12 either test, courts operate with the understanding that a 13 temporary restraining order, much like a preliminary injunction, 14 is an “extraordinary and drastic remedy.” 15 553 U.S. 674, 690 (2008). 16 restraining order, in particular, hinges on a significant threat 17 of irreparable injury [] that must be imminent in nature.” 18 Gish, No. EDCV 20-755-JGB(KKx), 2020 WL 1979970, at *3 (April 19 23, 2020) (citing Simula, Inc. v. Autoliv, Inc., 175 F.3d. 716, 20 725 (9th Cir. 1999); Caribbean Marine Serv. Co. v. Baldridge, 21 844 F.2d 668, 674 (9th Cir. 1988)). When applying Cf. Munaf v. Geren, “The propriety of a temporary 22 C. Analysis 23 Plaintiffs request the Court enjoin Defendants from 24 enforcing the State and County stay at home orders against the 25 Church’s biweekly in-person services. 26 contend they satisfy each of the four conventional Winter 27 factors. 28 maintain they would “follow CDC guidelines and San Joaquin TRO at 1-2. Plaintiffs If allowed to resume in-person services, Plaintiffs 7 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 8 of 20 1 County social distancing protocols in the use of their sanctuary 2 for assemblies and their parking lot for drive-in services” and 3 would “keep their assemblies under 50 persons until the dangers 4 posed by COVID-19 pass.” 5 TRO at 22.2 But as Defendants argue, Plaintiffs cannot show they are 6 likely to succeed on the merits of the two claims referenced in 7 their motion for temporary restraining order. 8 As an initial matter, both stay at home orders flow from valid 9 exercises of state and local emergency police powers. See TRO at 6-18. Moreover, 10 Plaintiffs are unlikely to show the orders violate the Free 11 Exercise Clause or even implicate RLUIPA’s protections. 12 same reasons, Plaintiffs also fail to raise serious questions 13 going to the merits of these two claims. 14 Circuit’s “serious question” analysis does not provide them an 15 alternative avenue for preliminary relief. 16 1. As a result, the Ninth Likelihood of Success on the Merits / Serious 17 Questions going to the Merits 18 a. 19 For the Emergency Powers Over a hundred years ago, the Supreme Court upheld a 20 state’s exercise of its general police powers to promote public 21 safety during a public health crisis. Jacobson, 197 U.S. 11, 25 22 23 24 25 26 27 28 After Plaintiffs filed this suit, the State and County both clarified that drive-in services are permitted under the stay at home orders provided congregants “refrain from direct or indirect physical contact” and “do not leave their cars.” See State Opp’n at 4; Ex. 13 to Grabarsky Decl.; County Opp’n at 5; Ex. N to Park Decl., ECF No. 17-1. The Court denies as moot the portion of Plaintiffs’ motion that seeks to temporarily enjoin either order’s prohibition of drive-in services. See Bd. Of Trustees of Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195, 1199 (9th Cir. 2019). 8 2 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 9 of 20 1 (1905). 2 quarantine laws and ‘health laws of every description’”—even 3 under normal circumstances. 4 authority to counties and cities within their province. 5 Under normal circumstances, however, state and local regulations 6 enacted pursuant to a general police power must, “always yield 7 in case of conflict” to both the Constitution and permissible 8 exercises of federal authority. 9 A state’s police power entails the authority “to enact Id. States may invest this Id. Id. But sometimes, normalcy is lost. When that occurs, “[t]he 10 authority to determine for all what ought to be done in [] an 11 emergency must [be] lodged somewhere or in some body.” 12 27. 13 invest that authority in the state, for “[a] community has the 14 right to protect itself against an epidemic of disease which 15 threatens the safety of its members.” 16 principle, when a state or locality exercises emergency police 17 powers to enact an emergency public health measure, courts will 18 uphold it unless (1) there is no real or substantial relation to 19 public health, or (2) the measures are “beyond all question” a 20 “plain, palpable invasion of rights secured by [] fundamental 21 law.” Id. at It is not “unusual nor [] unreasonable or arbitrary” to Id. In view of this Id. at 30.3 22 23 24 25 26 27 28 Even with a hundred years of hindsight, courts continue to adopt Jacobson’s benchmark when reviewing emergency public health measures enacted pursuant to emergency police powers. See, e.g., Gish, 2020 WL 1979970, at *5 (citing Jacobson, 197 U.S. at 31); Robinson v. Attorney General, No. 20-11401-B, WL 1952370, at *8 (11th Cir. April 23, 2020) (same); In re Abbott, No. 20-50296, 2020 WL 1911216, at *16 (5th Cir. 2020); Legacy Church, Inc. v. Kunkel, No. CIV 20-0327 JB/SCY, 2020 WL 1905586, at *40 (D. N.M. April 17, 2020) (same); Hickox v. Christie, 205 F.Supp.3d 579, 591-93 (D. N.J. 2016) (same). 9 3 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 10 of 20 1 This Court finds the State and County stay at home orders 2 being challenged here bear a real and substantial relation to 3 public health. 4 Culture Christian’s biweekly services “do not pose a unique or 5 unacceptable threat to public health and safety”—“[i]n fact, the 6 Church . . . is much safer than shopping at Costco, Walmart, or 7 Home Depot in Lodi.” 8 for the following reasons. 9 County’s designation of essential activities turns solely upon Arguing otherwise, Plaintiffs contend Cross TRO at 20. This argument is unpersuasive First, it assumes that the State and 10 people’s ability to comply with the CDC guidelines while engaged 11 in those activities. 12 states it took other considerations into account, i.e., 13 continuing non-COVID-19 emergency services, providing clean 14 water, protecting the state’s supply chains, etc. 15 Compl. 16 Not so. The State’s order expressly See Ex. 6 to Second, Plaintiffs’ argument ignores Jacobson’s mandate 17 that, during public health crises, “it is no part of the 18 function of a court... to determine which of two modes was 19 likely to be the most effective for the protection of the public 20 against disease.” 21 Abbott, 954 F.3d at 777. 22 began working closely with the national Centers for Disease 23 Control and Prevention, the United States Health and Human 24 Services Agency, and local health departments to monitor and 25 plan for the potential spread of COVID-19.” 26 (citing Grabarsky Decl). 27 the information those experts provided. 28 successfully argue the State and County orders do not reflect Jacobson, 197 U.S. at 30; see also In re Starting in December 2019, “California State Opp’n at 3 The State and County orders flow from 10 Id. at 3-4. To Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 11 of 20 1 reasoned responses to the COVID-19 pandemic, plaintiffs must do 2 more than contend they would have done things differently. 3 Jacobson, 197 U.S. 30. 4 burden. 5 Plaintiffs here did not carry that Finally, Plaintiffs failed to produce any evidence that 6 their in-person gatherings pose little threat of increasing 7 COVID-19’s spread. 8 carriers of the virus can infect others,” Plaintiffs’ belief 9 that the Church’s congregants “have never had or contracted [] 10 coronavirus . . . never been at any time exposed to the danger 11 of contracting it, and [] never been in any locality where [] 12 coronavirus . . . has [] existed,” is “largely meaningless.” 13 Gish, 2020 WL 1979970, at *4. 14 unknown carriers transmit this highly-infectious disease further 15 belies Plaintiffs’ argument. 16 Amicus Curiae Americans United for Separation of Church and 17 State at 17-18 (“Americans United Amicus”), ECF No. 9-1; see 18 also Hilda Flores, One-third of COVID-19 cases in Sac County 19 tied to church gatherings, officials say, KCRA (Apr. 1, 2020, 20 2:55 PM)4; Tony Bizjak, et al., 71 infected with coronavirus at 21 Sacramento church. Congregation tells county ‘leave us alone’, 22 SACRAMENTO BEE (Apr. 2, 2020)5; Richard Read, A choir decided to go 23 ahead with rehearsal; Now dozens of members have COVID-19 and 24 two are dead, L.A. TIMES (March 29, 2020)6; Bailey Loosmore & 25 4 26 27 28 “Because asymptomatic and pre-symptomatic Indeed, the known reality of how See State Opp’n at 9; Brief of Available at https://www.kcra.com/article/sacramento-countyone-third-of-covid-19-cases-tied-church-gatherings-officialssay/32011107#. 5 Available at https://www.sacbee.com/news/coronavirus/article241715346.html. 6 Available at https://www.latimes.com/world-nation/story/202011 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 12 of 20 1 Mandy McLaren, Kentucky county ‘hit really, really hard’ by 2 church revival that spread deadly COVID-19, LOUISVILLE COURIER 3 JOURNAL (updated Apr. 2, 2020)7. 4 gatherings pose no greater threat to life than the activities 5 the State and County orders permit. 6 Central District of California recently explained: even if 7 holding in-person services is just as safe as keeping grocery 8 stores open, people will die. 9 (citing Dalvin Brown, COVID-19 Claims Lives of 30 Grocery Store 10 Workers, Thousands More May Have It, Union Says, USA TODAY, (last 11 accessed April 23, 2020))8. 12 Plaintiffs claim their in-person TRO at 20. But as the Gish, 2020 WL 1979970, at *6 Even in times of health, government officials must often 13 strike the delicate balance between ensuring public safety and 14 preserving the Constitution’s fundamental guarantees. 15 judiciary plays an important role in ensuring that balance is 16 permissibly struck. 17 considerations come to bear, and government officials must ask 18 whether even fundamental rights must give way to a deeper need 19 to control the spread of infectious disease and protect the 20 lives of society’s most vulnerable. 21 conditions, the judiciary must afford more deference to 22 officials’ informed efforts to advance public health—even when 23 those measures encroach on otherwise protected conduct; even The But during public health crises, new Under these rare 24 25 26 27 28 03-29/coronavirus-choir-outbreak. 7 Available at https://www.courierjournal.com/story/news/2020/04/01/coronavirus-kentucky-churchrevival-leads-28-cases-2-deaths/5108111002/ 8 Available at https://www.usatoday.com/story/money/2020/04/14/coronavirusclaims-lives-30-grocery-store-workers-union-says/2987754001/. 12 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 13 of 20 1 when thoughtful minds could disagree about how to best balance 2 the scales. 3 WL 1979970, at *4-5. See Jacobson, 197 U.S. at 28-32, 34-38; Gish, 2020 4 The State and County bans on mass gatherings such as 5 sporting events, concerts, dining rooms, and in-person church 6 services flow from a larger goal of substantially reducing in- 7 person interactions. 8 show this goal, and the means used to achieve it, do not bear a 9 “real and substantial relationship” to preventing widespread See State Opp’n at 14. Plaintiffs fail to 10 transmission of COVID-19. 11 Moreover, as explained below, Plaintiffs do not show the orders 12 are “beyond all question” a “plain, palpable invasion of rights 13 secured by [] fundamental law.” 14 Plaintiffs are not likely to succeed on the merits of their 15 challenge to the State and County stay at home orders as 16 impermissible exercises of emergency police powers. 17 18 b. See Jacobson, 197 U.S. at 30. Id. at 30. The Court finds Free Exercise Clause The First Amendment, as incorporated against states through 19 the Fourteenth Amendment, protects the “free exercise” of 20 religion. 21 Connecticut, 310 U.S. 296, 303 (1940). 22 guards individuals from state interference when exercising 23 sincerely-held religious beliefs. 24 Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). 25 “[R]eligious beliefs need not be acceptable logical, consistent, 26 or comprehensible to others in order to merit First Amendment 27 protection.” 28 Employ. Sec. Div., 450 U.S. 707, 714 (1981). U.S. CONST. Amend. 1; Cantwell v. State of The Free Exercise Clause Church of the Lukumi Babalu Id. (quoting Thomas v. Review Bd. of Indiana 13 Laws and Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 14 of 20 1 ordinances that “single[] out” a religious practice for 2 discriminatory treatment “must undergo the most rigorous of 3 scrutiny.” 4 Id. at 538, 546. But the understandably cherished freedom to exercise 5 sincerely-held religious beliefs “does not relieve an individual 6 of the obligation to comply with a valid and neutral law of 7 general applicability.” 8 Inc. v. Wiesman, 794 F.3d 1064, 1075-76 (9th Cir. 2015); State 9 Opp’n at 13 (same). County Opp’n at 10 (quoting Stormans, More specifically, when a neutral law of 10 general application places incidental limits on a religious 11 exercise, “the right to practice religion freely does not 12 include liberty to expose the community . . . to communicable 13 disease.” 14 Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)). 15 look to both the text and the effect of a law to determine 16 whether it is neutral and generally applicable. 17 Privacy v. Barr, 949 F.3d 1210, 1234 (9th Cir. 2020). 18 Legacy Church, 2020 WL 1905586, at *30 (quoting Courts Parents for The Court first finds that the State and County orders are 19 neutral. [T]he minimum requirement of neutrality is that a law 20 not discriminate on its face.” 21 533. 22 discriminate against religious gatherings because they “prohibit 23 all ‘faith based’ assemblies even if they strictly follow CDC 24 and social distancing guidelines.” 25 State and County orders direct all residents to stay home 26 “except as needed to maintain continuity of operations” for 27 state- and locally-designated sectors. 28 orders then dub “[f]aith based services that are provided Church of Lukumi, 508 U.S. at Plaintiffs contend the State and County orders facially 14 TRO at 8. To be clear, the Exs. 5-6 to Compl. The Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 15 of 20 1 through streaming or other technology” as essential. Id. They 2 do not, however, include in-person religious assemblies in their 3 list of exemptions. 4 find this qualifies as facially discriminatory text. 5 neutrality does not require freedom from any mention of 6 religion.” Gish, 2020 WL 1979970, at *6. 7 laws from targeting “religious practice[s], conduct, belief[s], 8 or motivation[s].” 9 orders prohibit all non-essential gatherings. Now properly situated, the Court does not “Facial Rather it prohibits Stormans, 794 F.3d at 1076. The face of the Exs. 5-6 to 10 Compl. 11 religious and secular activities; as do the non-exempted 12 categories. 13 the orders, the Court does not find that the orders’ exemptions 14 discriminate on the basis of religion. 15 The exempted categories of “essential” conduct include Exs. 1, 5-6 to Compl. Looking only to the text of Admittedly, “[f]acial neutrality is not determinative”; the 16 Free Exercise Clause also “forbids subtle departures from 17 neutrality.” 18 Commission, 138 S. Ct. 1719, 1731 (2018) (quoting Church of 19 Lukumi, 508 U.S. at 534). 20 law in its real operation is strong evidence of its object.” 21 Church of Lukumi, 508 U.S. at 535. 22 law as neutral if, by design, the law works to target religious 23 conduct. 24 target in-person church services. 25 by proscribing faith-based gatherings and assemblies but 26 permitting “a host of comparable secular places where people 27 gather and assemble,” the orders have fashioned a “religious 28 gerrymander” akin to the one struck down in Church of Lukumi, Id. Masterpiece Cakeshop v. Colorado Civil Rights “Apart from the text, the effect of a Courts will not endorse a Plaintiffs contend the State and County order so 15 TRO at 10. They argue that, Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 16 of 20 1 508 U.S. 534. 2 But when Plaintiffs argue that church “is the only [] 3 ‘essential service’ on the state list that is required to limit 4 its core practice [] to electronic communication”, Reply at 1, 5 they ignore that all comparable assemblies are completely 6 prohibited. 7 dispensaries are not the proper point of comparison. 8 “[I]ndividuals enter [these stores] at various times to purchase 9 various items; they move around the store individually . . . and Grocery stores, liquor stores, and marijuana 10 they leave when they have achieved their purpose.” 11 Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH, 2020 WL 12 1909616, at *2 (W.D. Ky Apr. 18, 2020). 13 services, on the other hand, are “by design a communal 14 experience, one for which a large group of individuals come 15 together at the same time in the same place for the same 16 purpose.” 17 assemble, in part, for the sake of assembling. 18 (“The Church has a sincerely and deeply held religious belief 19 that it is essential for them as Christians to assemble and 20 regularly gather together in person for the teaching of God’s 21 Word, prayer, worship, baptism, communion, and fellowship.”). 22 Consequently, “a more apt comparison . . . is a restaurant[,] 23 entertainment venue . . . movie, concert, or sporting event.” 24 Id. 25 temporarily prohibit all these activities. 26 15; County Opp’n at 11-12. 27 neutral both on their face and in their application. 28 Id. Maryville In-person church By Plaintiffs’ own admission, they seek to Compl. ¶ 58 Like in-person church services, the State and County orders State Opp’n at 14- The State and County orders are The Court also finds the orders are generally applicable. 16 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 17 of 20 1 “All laws are selective to some extent, but categories of 2 selection are of paramount concern when a law has the incidental 3 effect of burdening religious practice.” 4 U.S. at 542. 5 application when the law’s restrictions “substantially 6 underinclude non-religiously motivated conduct that might 7 endanger the same governmental interest that the law is designed 8 to protect.” 9 impermissible animus toward religion when the government Church of Lukumi, 508 Selectivity strips a law of its general Stormans, 794 F.3d at 1079. Courts suspect 10 interest advanced “is worthy of being pursued only against 11 conduct with a religious motivation.” 12 U.S. at 542. 13 Church of Lukumi, 508 Plaintiffs claim “people are regularly gathering and 14 assembling at numerous commercial and transportation locations,” 15 and that the State and County orders “allow[] them to do so all 16 day long.” 17 religiously motivated conduct that endangers the same 18 governmental interest the orders claim to protect. 19 courts only “compare the prohibited religious conduct with 20 analogous secular conduct when assessing underinclusivity.” 21 Gish, 2020 WL 1979970, at *6 (citing Stormans, 794 F.3d at 1079) 22 (emphasis added). 23 gathering that occurs at in-person religious services is much 24 more akin to conduct the orders prohibit—attending movies, 25 restaurants, concerts, and sporting events—than that which the 26 orders allow. 27 28 TRO at 11. These gatherings, they argue, are non- Id. But And as previously explained, the type of The orders are no less generally applicable because the City of Lodi enforced them against Pastor Duncan. 17 Plaintiffs Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 18 of 20 1 have not produced any evidence that the City only enforced the 2 stay at home orders against religious entities. 3 at 12-13. 4 Public Assembly “to any property owner in the County where the 5 County [had] knowledge that a gathering in violation of the 6 Public Health Orders likely took place.” 7 the admittedly thin record before the Court, nothing supports a 8 finding that Lodi targeted the Church because of its religious 9 status rather than because it violated the law. Indeed, the City contends it issued Orders Precluding 10 United Amicus at 10. 11 County orders are generally applicable. 12 See Local Opp’n Local Opp’n at 12. On See Americans The Court therefore finds the State and Being neutral laws of general applicability, the State and 13 County stay at home orders are only subject to rational basis 14 review. 15 requires a law be “rationally related to a legitimate 16 governmental purpose.” 17 ‘have the burden to negat[e] every conceivable basis which might 18 support [the rules].’” 19 Inc., 508 U.S. 307, 315 (1993). 20 burden here. 21 their Free Exercise claim. 22 Church of Lukumi, 508 U.S. at 543. This standard Stormans, 794 F.3d at 1084. “Plaintiffs Id. (quoting FCC v. Beach Commc’ns, Plaintiffs did not meet that Accordingly, they are not likely to succeed on “The Free Exercise Clause commits government [] to 23 religious tolerance.” Church of Lukumi, 508 U.S. at 547. 24 “[E]ven slight suspicion that proposals for state intervention 25 stem from animosity to religion or distrust of its practices, 26 all officials must pause to remember their own high duty to the 27 Constitution and to the rights it secures.” Church of Lukumi, 28 508 U.S. at 547. But the incidental— This Court has so paused. 18 Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 19 of 20 1 albeit uncomfortable—burden the State and County orders place on 2 the exercise of religion simply do not engender the type of 3 religious discrimination the Constitution aims to prevent. The 4 State and County orders are not unconstitutional. Rather they 5 are permissible exercises of emergency police powers especially 6 given the extraordinary public health emergency facing the 7 State. 8 order enjoining the application of State and County orders 9 protecting the public health from a virulently infectious and 10 frequently deadly disease. Their challenge to these COVID-19- 11 related public health orders is therefore denied. 12 13 14 Plaintiffs are not entitled to a temporary restraining c. Religious Land Use and Institutionalized Persons Act (RLUIPA) RLUIPA restricts state and local governments’ ability to 15 “impose or implement land use regulation in a manner that 16 imposes a substantial burden on the religious exercise of a 17 person.” 42 U.S.C. § 2000cc(a)(1). 18 imposes a “substantial burden,” the government must show the 19 imposition of that burden is the least restrictive means of 20 furthering a compelling government interest. 21 § 2000cc(a)(1)(A),(B). 22 “a zoning or landmarking law, or the application of such a law.” 23 42 U.S.C. § 2000cc-5(5). 24 orders regulate conduct, not land use. 25 Plaintiffs fail to identify any cases where a court has upheld a 26 challenge under this provision to a conduct-regulating statute. 27 Indeed, interpreting RLUIPA to regulate conduct in this way 28 would raise constitutional questions about the law’s congruence If a land use regulation 42 U.S.C. RLUIPA defines “land use regulation” as The State and County stay at home 19 See Exs. 5-6 to Compl. Case 2:20-cv-00832-JAM-CKD Document 23 Filed 05/05/20 Page 20 of 20 1 and proportionality. 2 County of Sutter, 456 F.3d 978, 986 (9th Cir. 2006) (citing 3 Cutter v. Wilkinson, 544 U.S. 709 (2005))(“To avoid RFRA’s fate, 4 Congress wrote that RLUIPA would apply only to regulations 5 regarding land use and prison conditions.”) 6 of constitutional avoidance, this Court finds RLUIPA, by its own 7 terms, does not apply to the State and County orders. 8 Plaintiffs are therefore unlikely to succeed on the merits of 9 this claim. 10 11 2. See Guru Nanak Sikh Soc. Of Yuba City v. Employing the canon Remaining Factors A district court may not grant a plaintiff’s motion for a 12 temporary restraining order if the request fails to show the 13 plaintiff is likely to succeed on the merits of a claim or, at 14 least, raises serious questions going to the merits of that 15 claim. 16 632 F.3d at 1135. 17 The Court need not consider the remaining factors in denying 18 their request. See Winter, 555 U.S. at 20; Alliance for Wild Rockies, Plaintiffs here did not make either showing. Gish, 2020 WL 1979970, at *7. 19 20 21 22 23 24 III. ORDER For the reasons set forth above, the Court DENIES Plaintiffs ex parte application for a temporary restraining order. IT IS SO ORDERED. Dated: May 4, 2020 25 26 27 28 20