Professional Documents
Culture Documents
Gish SCOTUS Reply Final
Gish SCOTUS Reply Final
20A120
In the
Supreme Court of the United States
WENDY GISH, PATRICK SCALES, JAMES DEAN MOFFATT, AND BRENDA WOOD,
Applicants,
v.
GAVIN NEWSOM, in his official capacity as the Governor of California; XAVIER
BECERRA, in his official capacity as the Attorney General of California,
Respondents.
To the Honorable Elena Kagan, Associate Justice of the United States Supreme
Court and Circuit Justice for the Ninth Circuit
Counsel for Applicants Wendy Gish, Patrick Scales, James Dean Moffatt, and
Brenda Wood
Table of Contents
Contents
I. INTRODUCTION ...............................................................................................1
1. Executive Order N-33-20 is, and has always been, the basis for both the
State public health agency’s claimed authority to criminalize congregate
religious worship and the focus of Applicants’ legal challenge. ........................3
i
Table of Authorities
Cases
Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, supra, 508 U.S. 520, 542
(1993) ......................................................................................................................8
Harvest Rock Church, Inc. v. Newsom, 2020 WL 7639584 (C.D. Cal. Dec. 21,
2020), ....................................................................................................................11
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) .... passim
South Bay United Pentecostal Church v. Newsom, 2020 WL 7488974 (S.D. Cal.
Dec. 21, 2020) ......................................................................................................10
ii
I. INTRODUCTION
Applicants’ need for injunctive relief is dire. For over nine months now, the
the State’s value judgment that free religious expression and congregant worship—
as opposed to essential things like marijuana, liquor, or retail shopping— are not
really essential in the lives of religious adherents rather than respecting the high
State’s enactments is plain, but the lower courts’ application of inappropriate legal
standards to Applicants’ pleas for relief, as well as the State’s constant shifting of
Applicants’ efforts.
Even after this Court’s rejection of the less onerous restrictions at issue in
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (per
Order. App’x pp. 120-123. Even worse, in its opposition the State falsely
represented to the Court that Applicants never challenged the applicable executive
order on constitutional grounds. The State also argues cynically that Applicants’
First Amendment rights should continue to be denied because the State has
1
repeatedly changed the label on its unconstitutional restrictions—something it has
nearly all indoor worship while permitting secular activities of the same general
nature violates Applicants’ fundamental rights. This Court should put an end to the
State’s litigation and political gamesmanship and grant Applicant’s request for
II. ARGUMENT
District Court misapprehended the facts of this case, misapplied the law of
mootness to those facts, and entered final judgment against Applicants. Further,
both the District Court and the Ninth Circuit U.S. Court of Appeals denied
Applicants’ requests for injunctive relief pending appeal from that judgment.
irreparable harm with no hope for immediate relief, despite their plain entitlement
2
1. Executive Order N-33-20 is, and has always been, the basis for
both the State public health agency’s claimed authority to
criminalize congregate religious worship and the focus of
Applicants’ legal challenge.
The State falsely suggests that Applicants “never challenged” the Executive
Order or sought injunctive relief from the lower courts on constitutional grounds,
105, 114, 123, 132, 140, & 149. The Applicants challenge, and have always
Supp. App’x #23, pp. 345-346; and Supp. App’x #24, pp. 746-747, 754, 757, 759,
& 761. Executive Order N-33-20 provides the California Department of Public
Health (“CDPH”) carte blanche power to impose criminal penalties on those who
practice religious worship in a manner not ordained by the health directives issued
by the CDPH. App’x. p. 29 (citing Cal. Health & Saf. Code § 8665). The CDPH
proclaims publicly that the Governor’s Executive Order provides it this power:
3
local public health officials, including but not limited to
the imposition of social distancing measures, to combat
the spread of COVID-19.” Further, on March 19, 2020,
Governor Newsom issued Executive Order N-33-20, in
which he reiterated his directive that all residents
immediately heed state public health directives (which, in
that Order, was in the context of the stay-at-home order).
https://covid19.ca.gov/stay-home-except-for-essential-needs/ (last
The State erroneously claims California Health & Safety Code § 120140
with the agency’s directives. It does not. Section 120140 states that the CDPH may
“take measures as are necessary to ascertain the nature of the disease and prevent
its spread,” including by “tak[ing] possession or control of the body of any living
person, or the corpse of any deceased person.” The statute does not provide the
authority for health officials to impose criminal sanctions. Nor does the statute
confer authority on the agency to enact standing criminal laws barring religious
worship.2
1The Governor’s Executive Orders N-25-20, N-33-20, and N-60-20 contain the same
or similar operative language compelling the public to comply with all State public
health directives.
2Unlike the Governor’s Executive Orders, California Health & Safety Code Section
120140 also requires that the agency’s actions be “necessary” to prevent the spread
of the disease.
4
In contrast, the Governor’s Executive Order N-33-20—the law challenged
by Applicants from Day One of this litigation through today—does just that by
ordering the public to comply with all directives that the agency may issue on pain
request from this Court and why they have asked for such relief.
Applicants have repeatedly sought injunctive relief from the lower courts to
no avail. The District Court held that the Applicants’ claims are moot and must be
amended with each passing change to the CDPH’s guidance materials, but these
directives have been modified substantially no fewer than seven times since the
time Applicants filed their complaint in April 2020. Requiring Applicants to follow
the District Court’s suggested procedure would have required Applicants to file
seven amendments, each of which would and could have been mooted by a few
5
regime unable to attend religious services. Whether this
Court could decide a renewed application promptly is
beside the point. The parties before us have already shown
their entitlement to relief. Saying so now will establish
clear legal rules and enable both sides to put their energy
to productive use, rather than devoting it to endless
emergency litigation. Saying so now will dispel, as well,
misconceptions about the role of the Constitution in times
of crisis, which have already been permitted to persist for
too long.
Roman Catholic Diocese, 141 S. Ct. at 72. The very same reasoning applies here.
And, indeed, the core controversy at issue, despite the State’s ever-changing
vehicles for achieving its discriminatory ends, remains the same as it was at the
outset of the pandemic. Regardless of how its orders are couched, the State’s
a greater degree than comparable secular activities and, when viewed in light of
their core injury, are indistinguishable from those initially challenged. See De
Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 220 (1945) (“A
Thus, it does not help the State to have added an industry or two to the
essential list in iteration four of its order or to have raised an occupancy limit for
another group in iteration six. In each and every instance, the snake oil in the bottle
has remained the same and restricts indoor congregate gathering more than a trip to
6
Walmart, a cross-country trip on a plane, or a visit to the local marijuana
particular areas without prior notice. If that occurs again, the reclassification will
almost certainly bar individuals in the affected area from attending services before
judicial relief can be obtained.” 141 S. Ct. at 68 (footnote omitted). Here too,
requiring Applicants to return to the lower courts again and again to vindicate their
constitutional rights against state power, already clothed in the mantle of presumed
validity, would reward the State’s gamesmanship and prevent Applicants from ever
relief in line with that required by this Court’s precedent. Forcing Applicants to
relief is proper. See Application pp. 14–17. The circumstances are critical and
exigent, as Applicants’ religious rights have been restricted for over nine months
with no end in sight. The legal rights at issue are “indisputably clear,” as this Court
taught in Diocese of Brooklyn, 141 S. Ct. at 66. And injunctive relief is “necessary
7
and appropriate” given lower courts’ repeated rejection of this Court’s clear
applicable. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, supra, 508 U.S.
520, 542 (1993). Here, Executive Order N-33-20 and its implementing regulations
are neither.
this Court in Diocese of Brooklyn, where the State of New York asserted that laws
chemicals and microelectronics and all transportation facilities.” The Court found
that, in fact, New York’s regulations were not neutral or generally applicable.
In that decision, the majority opinion pointed out the inevitably “troubling
shop at a store on a given day, but prohibits a church from allowing more than 10
8
grocery store, pet store, or big-box store down the street does not face the same
restriction.” Id. at 73. The injury and injustice are that much greater when the State
completely bans congregate religious worship, as does the State here, yet lets retail
opposition cannot save it from the deficiencies of its rationalizations. With broad
worship for greater restrictions are warranted because church services require
location with limited ventilation” and engage in activities like talking or singing.
Opposition 43. These vague and unsupported statements, suggesting that Jews,
Christians, Sikhs, Muslims, and Buddhists all worship in the same manner, with
exactly the same levels of interaction, and in uniform buildings with “limited
prolonged close contact, singing and chanting, without ever opening windows or
using heat and air conditioning. In fact, however, Applicants have never suggested
to the State, or to any court, that it would be impossible for them to gather for
worship with limited time and occupancy restrictions for their services,
requirements for social distancing and masks, or with doors open and fans on to
9
ensure adequate ventilation. Nor is there any evidence to suggest that they could
not, or would not, employ every available measure to protect attendees from the
spread of COVID-19.
prohibited conduct based, not on safety considerations, but whether people are
short, shopping trips can be of unlimited duration. The State has no concern about
basis for it to assert that the air is any less fresh in house of worship.
pose a lesser threat than indoor religious worship, Opposition 40, have already
been roundly rejected by this Court. See Diocese of Brooklyn, 141 S. Ct. at 66–67.
The lower courts’ choice to nonetheless ignore this Court’s holding and reasoning
Newsom, 2020 WL 7488974 (S.D. Cal. Dec. 21, 2020) and Harvest Rock Church,
Inc. v. Newsom, 2020 WL 7639584 (C.D. Cal. Dec. 21, 2020), rather than
10
permissible, further demonstrate the urgency with which this Court should act to
compelling state interest. Diocese of Brooklyn, 141 S. Ct. at 67. The Government
does not argue that EO N-33-20 is narrowly tailored. No serious argument can be
made that a mandate stating, “all residents are directed to immediately heed the
current State public health directives” is “narrow.” The injury caused by the overly
worship for absolute restriction—is no different, and in fact is even more onerous,
Opposition 43, the Government makes no effort to explain why, instead of making
diktat could not (a) limit the length of services; (b) employ social distancing; (c)
require masks so that, along with social distancing, the dreading “singing and
chanting” would pose no threat of infection; and (d) require ventilation equivalent
11
have never suggested that such limitations would necessarily be untenable or
unlawful.
constitutionally privileged setting. And that is exactly what the Court struck down
in Diocese of Brooklyn:
141 S. Ct. 67. The Court in Diocese of Brooklyn then went on to describe how the
facilities available to the petitioners left room for ample social distancing and
could not justify a total shutdown. “It is hard to believe that admitting more than
12
10 people to a 1,000–seat church or 400–seat synagogue would create a more
serious health risk than the many other activities that the State allows.” Id.
The same applies here. The Government has made no attempt to tailor EO
category of gathering per se. And that bright-line ban is based not on dangerous
conduct, but at a right afforded special First Amendment protection that far
not narrowly tailored and, under strict scrutiny, fails to justify its ban on a core
constitutional right.
CONCLUSION
rights to freely exercise their faith, as promised by the U.S. Constitution, unless
this Court grants the relief requested. The Applicants respectfully request that this
Executive Orders N-33-20 (March 19, 2020) and N-60-20 (May 4, 2020) against
them pending final resolution in this case, including the filing and disposition of
13
Respectfully submitted this 14th day of January, 2021.
RONALD D. COLEMAN
Counsel of Record
DHILLON LAW GROUP INC.
8 Hillside Avenue – Suite 103
Montclair, NJ 07042
(973) 298-1723
[email protected]
HARMEET DHILLON
MARK P. MEUSER
DHILLON LAW GROUP INC.
177 Post Street, Suite 700
San Francisco, CA 94108
(415) 433-1700
[email protected]
[email protected]
14