Cross Culture Christian Center v. Newsom ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 CROSS CULTURE CHRISTIAN No. 2:20-cv-00832-JAM-CKD CENTER, a California Non- 11 Profit Corporation; PASTOR JONATHAN DUNCAN, an 12 individual, ORDER DENYING EX PARTE APPLICATION FOR TEMPORARY 13 Plaintiffs, RESTRAINING ORDER 14 v. 15 GAVIN NEWSOM, in his official capacity as Governor of 16 California; XAVIER BECERRA, in his official capacity as 17 the Attorney General of California; SONIA ANGELL, in 18 her capacity as California Public Health Officer; MAGGIE 19 PARK, in her official capacity as Public Health 20 Officer, San Joaquin County; MARCIA CUNNINGHAM, in her 21 official capacity as Director of Emergency Services, San 22 Joaquin County; CITY OF LODI; TOD PATTERSON, in his 23 official capacity as Chief of Police of Lodi, California, 24 Defendants. 25 26 27 Cross Culture Christian Center (“Cross Culture Christian” or 28 the “Church”) and its pastor, Jonathan Duncan, filed a ten-count 1 complaint against the City of Lodi, its police chief, and several 2 State and County officials. Compl., ECF No. 1. They allege the 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. Plaintiffs then filed an ex parte application for a 8 temporary restraining order. Ex parte Application for TRO 9 (“TRO”), ECF No. 4. 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 TRO at 2. 13 The State Defendants opposed Plaintiffs’ motion. Opp’n by Sonia 14 Angell, Xavier Becerra, Gavin Newsom (“State Opp’n), ECF No. 15. 15 The County and City Defendants filed a joint opposition. Opp’n 16 by City of Lodi, et al. (“Local Opp’n”). The Court also granted 17 leave for Americans United for the Separation of Church and State 18 to file a brief as amicus curiae in support of Defendants. ECF 19 No. 18. Plaintiffs then filed a reply. ECF No. 21. 20 For the reasons set forth below, the Court DENIES 21 Plaintiffs’ request for a temporary restraining order. 22 I. FACTUAL BACKGROUND 23 Cross Culture Christian is a church in Lodi, California led 24 by Pastor Duncan. Compl. ¶¶ 17, 18. Cross Culture Christian 25 used to hold Wednesday and Sunday services in the sanctuary of a 26 building it rented from Bethel Open Bible Church. Compl. ¶ 56. 27 1 Plaintiffs’ ex parte application was determined to be suitable 28 for decision without oral argument. E.D. Cal. L.R. 230(g). 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. Compl. ¶¶ 31, 36. The Lodi Police Department, enforcing 4 these orders, eventually required the Church to stop holding in- 5 person services. Compl. ¶ 75. 6 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.” Compl. ¶ 32; 11 Ex. A to Compl., ECF No. 1-1. Governor Newsom reserved authority 12 to “designate additional sectors as critical [to] protect the 13 health and well-being of all Californians.” Id. On March 21, 14 San Joaquin County followed suit. Compl. ¶ 36. It issued a stay 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.” Ex. 2 to Compl., ECF No. 1-2. The 19 County order also incorporated Executive Order N-33-20 by 20 reference. Id. at 1. 21 As COVID-19 continued to spread, Governor Newsom and County 22 officials issued amendments containing increasingly stringent 23 restrictions. Compl. ¶¶ 31-46. California’s March 22 order set 24 forth with more specificity its list of “Essential Critical 25 Infrastructure Workers.” Compl. ¶ 33; Ex. 6 to Compl., ECF No. 26 1-6. The amendment designates “[f]aith based services that are 27 provided through streaming or other technology” as an essential 28 part of the “Other Community-Based Government Operations and 1 Essential Functions” sector. Ex. 6 to Compl. at 11. The list 2 otherwise makes no mention of faith, churches, religion, 3 religious workers, Christianity, worship, or prayer. The 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. Ex. 3 to Compl., ECF No. 1-3. Cross 7 Culture Christian nevertheless continued to hold in-person 8 services throughout the month of March. Compl. ¶¶ 63-65. 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. Two days later, on April 3, a County Public Health 13 Officer issued an Order Prohibiting Public Assembly to the 14 Church’s lessor, Bethel Open Bible Church. Compl. ¶ 43; Ex. 4 to 15 Compl., ECF No. 1-4. The order stated that allowing a tenant to 16 hold in-person services violated the State and County stay at 17 home orders. The order concluded, “[a]ny person who refuses or 18 willfully neglects to comply with this emergency order is guilty 19 of a misdemeanor, punishable by fine and/or imprisonment.” Id. 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.” Id. 23 The following Sunday, Duncan returned to Cross Culture 24 Christian. His landlord had changed the locks. Compl. ¶ 75. 25 Lodi law enforcement barred access to the property under threat 26 of citation. Compl. Id. 27 /// 28 /// 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.” Fed. R. Evid. 8 201(b). To this end, a court may take judicial notice “of court 9 filings and other matters of public record,” 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,” California River Watch v. City of 13 Vacaville, No. 2:17-cv-00524-KJM-KJN, 2017 WL 3840265, at *2 n.1 14 (E.D. Cal. Sept. 1, 2017). 15 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.); Binford 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.). Grabarsky Decl. to State Opp’n ¶¶ 8-14, 26 ECF No. 15-1. The City and County Defendants (“Local 27 Defendants”) request judicial notice of the following documents 28 issued by the state and federal government: 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. The Court 22 therefore GRANTS Defendants’ requests. In doing so, the Court 23 judicially notices “the contents of the documents, not the truth 24 of those contents.” Gish v. Newsom, No. EDCV 20-755-JGB(KKx), 25 at *2 (C.D. Cal. April 23, 2020). 26 B. Legal Standard 27 A party seeking a temporary restraining order must 28 establish (1) he is likely to succeed on the merits; (2) he is 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. Winter v. Nat. Res. Def. Council, 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). In the Ninth Circuit, courts may also issue 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 10 Winter factors are present. Alliance for Wild Rockies v. 11 Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). When applying 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.” Cf. Munaf v. Geren, 15 553 U.S. 674, 690 (2008). “The propriety of a temporary 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)). 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. TRO at 1-2. Plaintiffs 26 contend they satisfy each of the four conventional Winter 27 factors. If allowed to resume in-person services, Plaintiffs 28 maintain they would “follow CDC guidelines and San Joaquin 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.” TRO at 22.2 5 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. See TRO at 6-18. 8 As an initial matter, both stay at home orders flow from valid 9 exercises of state and local emergency police powers. Moreover, 10 Plaintiffs are unlikely to show the orders violate the Free 11 Exercise Clause or even implicate RLUIPA’s protections. For the 12 same reasons, Plaintiffs also fail to raise serious questions 13 going to the merits of these two claims. As a result, the Ninth 14 Circuit’s “serious question” analysis does not provide them an 15 alternative avenue for preliminary relief. 16 1. Likelihood of Success on the Merits / Serious 17 Questions going to the Merits 18 a. Emergency Powers 19 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 2 After Plaintiffs filed this suit, the State and County both clarified that drive-in services are permitted under the stay at 24 home orders provided congregants “refrain from direct or indirect physical contact” and “do not leave their cars.” See State Opp’n 25 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 26 Plaintiffs’ motion that seeks to temporarily enjoin either 27 order’s prohibition of drive-in services. See Bd. Of Trustees of Glazing Health and Welfare Trust v. Chambers, 941 F.3d 1195, 1199 28 (9th Cir. 2019). 1 (1905). A state’s police power entails the authority “to enact 2 quarantine laws and ‘health laws of every description’”—even 3 under normal circumstances. Id. States may invest this 4 authority to counties and cities within their province. Id. 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. Id. 9 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.” Id. at 12 27. It is not “unusual nor [] unreasonable or arbitrary” to 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.” Id. In view of this 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 30.3 22 23 3 Even with a hundred years of hindsight, courts continue to adopt Jacobson’s benchmark when reviewing emergency public health 24 measures enacted pursuant to emergency police powers. See, e.g., Gish, 2020 WL 1979970, at *5 (citing Jacobson, 197 U.S. at 31); 25 Robinson v. Attorney General, No. 20-11401-B, WL 1952370, at *8 (11th Cir. April 23, 2020) (same); In re Abbott, No. 20-50296, 26 2020 WL 1911216, at *16 (5th Cir. 2020); Legacy Church, Inc. v. 27 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, 28 591-93 (D. N.J. 2016) (same). 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. Arguing otherwise, Plaintiffs contend Cross 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.” TRO at 20. This argument is unpersuasive 8 for the following reasons. First, it assumes that the State and 9 County’s designation of essential activities turns solely upon 10 people’s ability to comply with the CDC guidelines while engaged 11 in those activities. Not so. The State’s order expressly 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. See Ex. 6 to 15 Compl. 16 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.” Jacobson, 197 U.S. at 30; see also In re 21 Abbott, 954 F.3d at 777. Starting in December 2019, “California 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.” State Opp’n at 3 26 (citing Grabarsky Decl). The State and County orders flow from 27 the information those experts provided. Id. at 3-4. To 28 successfully argue the State and County orders do not reflect 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. Plaintiffs here did not carry that 4 burden. 5 Finally, Plaintiffs failed to produce any evidence that 6 their in-person gatherings pose little threat of increasing 7 COVID-19’s spread. “Because asymptomatic and pre-symptomatic 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. Indeed, the known reality of how 14 unknown carriers transmit this highly-infectious disease further 15 belies Plaintiffs’ argument. See State Opp’n at 9; Brief of 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 Available at https://www.kcra.com/article/sacramento-county- one-third-of-covid-19-cases-tied-church-gatherings-officials- 26 say/32011107#. 27 5 Available at https://www.sacbee.com/news/coronavirus/article241715346.html. 28 6 Available at https://www.latimes.com/world-nation/story/2020- 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. Plaintiffs claim their in-person 4 gatherings pose no greater threat to life than the activities 5 the State and County orders permit. TRO at 20. But as the 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. Gish, 2020 WL 1979970, at *6 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 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. The 15 judiciary plays an important role in ensuring that balance is 16 permissibly struck. But during public health crises, new 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. Under these rare 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 24 03-29/coronavirus-choir-outbreak. 25 7 Available at https://www.courier- journal.com/story/news/2020/04/01/coronavirus-kentucky-church- 26 revival-leads-28-cases-2-deaths/5108111002/ 27 8 Available at https://www.usatoday.com/story/money/2020/04/14/coronavirus- 28 claims-lives-30-grocery-store-workers-union-says/2987754001/. 1 when thoughtful minds could disagree about how to best balance 2 the scales. See Jacobson, 197 U.S. at 28-32, 34-38; Gish, 2020 3 WL 1979970, at *4-5. 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. See State Opp’n at 14. Plaintiffs fail to 8 show this goal, and the means used to achieve it, do not bear a 9 “real and substantial relationship” to preventing widespread 10 transmission of COVID-19. See Jacobson, 197 U.S. at 30. 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.” Id. at 30. The Court finds 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 b. Free Exercise Clause 18 The First Amendment, as incorporated against states through 19 the Fourteenth Amendment, protects the “free exercise” of 20 religion. U.S. CONST. Amend. 1; Cantwell v. State of 21 Connecticut, 310 U.S. 296, 303 (1940). The Free Exercise Clause 22 guards individuals from state interference when exercising 23 sincerely-held religious beliefs. Church of the Lukumi Babalu 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.” Id. (quoting Thomas v. Review Bd. of Indiana 28 Employ. Sec. Div., 450 U.S. 707, 714 (1981). Laws and 1 ordinances that “single[] out” a religious practice for 2 discriminatory treatment “must undergo the most rigorous of 3 scrutiny.” Id. at 538, 546. 4 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.” County Opp’n at 10 (quoting Stormans, 8 Inc. v. Wiesman, 794 F.3d 1064, 1075-76 (9th Cir. 2015); State 9 Opp’n at 13 (same). 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.” Legacy Church, 2020 WL 1905586, at *30 (quoting 14 Prince v. Massachusetts, 321 U.S. 158, 166-67 (1944)). Courts 15 look to both the text and the effect of a law to determine 16 whether it is neutral and generally applicable. Parents for 17 Privacy v. Barr, 949 F.3d 1210, 1234 (9th Cir. 2020). 18 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.” Church of Lukumi, 508 U.S. at 21 533. Plaintiffs contend the State and County orders facially 22 discriminate against religious gatherings because they “prohibit 23 all ‘faith based’ assemblies even if they strictly follow CDC 24 and social distancing guidelines.” TRO at 8. To be clear, the 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. Exs. 5-6 to Compl. The 28 orders then dub “[f]aith based services that are provided 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. Now properly situated, the Court does not 4 find this qualifies as facially discriminatory text. “Facial 5 neutrality does not require freedom from any mention of 6 religion.” Gish, 2020 WL 1979970, at *6. Rather it prohibits 7 laws from targeting “religious practice[s], conduct, belief[s], 8 or motivation[s].” Stormans, 794 F.3d at 1076. The face of the 9 orders prohibit all non-essential gatherings. Exs. 5-6 to 10 Compl. The exempted categories of “essential” conduct include 11 religious and secular activities; as do the non-exempted 12 categories. Exs. 1, 5-6 to Compl. Looking only to the text of 13 the orders, the Court does not find that the orders’ exemptions 14 discriminate on the basis of religion. 15 Admittedly, “[f]acial neutrality is not determinative”; the 16 Free Exercise Clause also “forbids subtle departures from 17 neutrality.” Masterpiece Cakeshop v. Colorado Civil Rights 18 Commission, 138 S. Ct. 1719, 1731 (2018) (quoting Church of 19 Lukumi, 508 U.S. at 534). “Apart from the text, the effect of a 20 law in its real operation is strong evidence of its object.” 21 Church of Lukumi, 508 U.S. at 535. Courts will not endorse a 22 law as neutral if, by design, the law works to target religious 23 conduct. Id. Plaintiffs contend the State and County order so 24 target in-person church services. TRO at 10. They argue that, 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, 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. Grocery stores, liquor stores, and marijuana 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 10 they leave when they have achieved their purpose.” Maryville 11 Baptist Church, Inc. v. Beshear, No. 3:20-cv-278-DJH, 2020 WL 12 1909616, at *2 (W.D. Ky Apr. 18, 2020). In-person church 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.” Id. By Plaintiffs’ own admission, they seek to 17 assemble, in part, for the sake of assembling. Compl. ¶ 58 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. Like in-person church services, the State and County orders 25 temporarily prohibit all these activities. State Opp’n at 14- 26 15; County Opp’n at 11-12. The State and County orders are 27 neutral both on their face and in their application. 28 The Court also finds the orders are generally applicable. 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.” Church of Lukumi, 508 4 U.S. at 542. Selectivity strips a law of its general 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.” Stormans, 794 F.3d at 1079. Courts suspect 9 impermissible animus toward religion when the government 10 interest advanced “is worthy of being pursued only against 11 conduct with a religious motivation.” Church of Lukumi, 508 12 U.S. at 542. 13 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.” TRO at 11. These gatherings, they argue, are non- 17 religiously motivated conduct that endangers the same 18 governmental interest the orders claim to protect. Id. But 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). And as previously explained, the type of 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 The orders are no less generally applicable because the 28 City of Lodi enforced them against Pastor Duncan. Plaintiffs 1 have not produced any evidence that the City only enforced the 2 stay at home orders against religious entities. See Local Opp’n 3 at 12-13. Indeed, the City contends it issued Orders Precluding 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.” Local Opp’n at 12. On 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. See Americans 10 United Amicus at 10. The Court therefore finds the State and 11 County orders are generally applicable. 12 Being neutral laws of general applicability, the State and 13 County stay at home orders are only subject to rational basis 14 review. Church of Lukumi, 508 U.S. at 543. This standard 15 requires a law be “rationally related to a legitimate 16 governmental purpose.” Stormans, 794 F.3d at 1084. “Plaintiffs 17 ‘have the burden to negat[e] every conceivable basis which might 18 support [the rules].’” Id. (quoting FCC v. Beach Commc’ns, 19 Inc., 508 U.S. 307, 315 (1993). Plaintiffs did not meet that 20 burden here. Accordingly, they are not likely to succeed on 21 their Free Exercise claim. 22 “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. This Court has so paused. But the incidental— 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. Plaintiffs are not entitled to a temporary restraining 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 c. Religious Land Use and Institutionalized 13 Persons Act (RLUIPA) 14 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). If a land use regulation 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. 42 U.S.C. 21 § 2000cc(a)(1)(A),(B). RLUIPA defines “land use regulation” as 22 “a zoning or landmarking law, or the application of such a law.” 23 42 U.S.C. § 2000cc-5(5). The State and County stay at home 24 orders regulate conduct, not land use. See Exs. 5-6 to Compl. 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 2.420 VV VUOVUO VAAIVE WINLY MYVVUULLIOCIIL oJ Vevey Payet ev viicyv 1 and proportionality. See Guru Nanak Sikh Soc. Of Yuba City v. 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.”) Employing the canon 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 2. Remaining Factors 11 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. See Winter, 555 U.S. at 20; Alliance for Wild Rockies, 16 632 F.3d at 1135. Plaintiffs here did not make either showing. 17 The Court need not consider the remaining factors in denying 18 their request. Gish, 2020 WL 1979970, at *7. 19 20 Til. ORDER 21 For the reasons set forth above, the Court DENIES Plaintiffs 22 ex parte application for a temporary restraining order. 23 IT IS SO ORDERED. 24 Dated: May 4, 2020 25 Me 26 Benlek, sunk 27 28 20