Judge Pulskamp: If People Can Gather In Costco, They Can Gather In Church

In order to evaluate the likelihood of Plaintiff prevailing at trial, the Court must first determine which legal standard should be used to analyze the Covid-19 restrictions at issue. Although Defendants collectively advocate for the use of a “rational basis” standard, it is clear that when restrictions appear to treat religious activity less favorably than comparable secular activities, the restrictions are subject to “strict scrutiny.” (Church of Lukumi v. Hialeah (1993) 508 U.S. 520, 533-38, 546, 113 S.Ct. 2217 (Lukumi).) In other words, as noted in Roman Catholic Diocese, when “the challenged restrictions are not ‘neutral’ and of ‘general applicability,’ they must satisfy ‘strict scrutiny,’ and this means that they must be ‘narrowly tailored’ to serve a ‘compelling’ state interest.” (Roman Catholic Diocese, supra, at p. 3 [citations omitted].) In this case, the restrictions are not “neutral” and of “general applicability” because they assign entities into disparate classifications which results in religious activities being treated less favorably than comparable secular activities. For example, the “Purple Tier” of the “Blueprint for a Safer Economy,” and the most recent “Regional Stay at Home Order,” both impose a total ban on indoor religious services while simultaneously permitting a wide range of secular indoor activities to varying degrees. Entities permitted to engage in indoor activities – also known as “essential businesses” or “critical infrastructure” – include big-box retail stores, grocery stores, home improvement stores, hotels, airports, train stations, bus stations, movie production houses, warehouses, factories, schools, and a lengthy list of additional businesses. It is important to note that almost all of the entities that are allowed to host indoor operations do not engage in activity that is constitutionally protected, whereas houses of worship do. (Calvary Chapel Dayton Valley v. Sisolak (2020) 140 S.Ct. 2603, 2603-04 (diss. opn. of Alito, J.).) Therefore, strict scrutiny is the appropriate standard in this case.

Stopping the spread of Covid-19 is undisputedly a “compelling state interest,” so one element of the standard is satisfied. However, Defendants’ efforts to distinguish the permitted secular activity from the prohibited religious activity are not persuasive. For example, Defendants contend that the congregations of shoppers in big-box stores, grocery stores, etc., are not comparable to religious services in terms of crowd size, proximity, and length of stay. To the contrary, based on the evidence presented (or lack thereof) and common knowledge, it appears that shoppers at a Costco, Walmart, Home Depot, etc. may —and frequently do—congregate in numbers, proximity, and duration that is very comparable to worshippers in houses of worship. Defendants have not convincingly established that the health risks associated with houses of worship would be any different than “essential businesses” or “critical infrastructure,” assuming the same requirements of social distancing and the wearing of masks were applied across the board….

In addition, the restrictions at issue in this case are not “narrowly tailored” because the occupancy limits imposed on places of worship by the Purple Tier of the Blueprint for a Safer Economy and the Regional Stay at Home Order are zero – a total and complete ban of indoor religious services. These restrictions are arguably harsher than any other set of restrictions considered by the courts in all of the cases cited by the parties in this action. In Roman Catholic Diocese, the court considered New York’s religious services occupancy limits of 10 persons in “Red Zones” and 25 persons in “orange zones” to be “very severe restrictions” and “far more restrictive than any Covid-related regulations that have previously come before the Court [footnote omitted], much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.” (Roman Catholic Diocese, supra, at p. 1, 2.) What then should the courts think of California’s total ban on indoor services? “Narrowly tailored” regulations mean “the least restrictive means available” and may potentially include a variety of less draconian measures such as “social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” (Roman Catholic Diocese, supra, at p. 4 (conc. opn. of Gorsuch, J.).) Therefore, it seems highly probable that Plaintiffs will prevail in this case should the matter proceed to trial.

In terms of evaluating, or balancing, the interim harm to the parties, “[t]here can be no question that the challenged restrictions, if enforced, will cause irreparable harm [as] [t]he loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury.” (Roman Catholic Diocese, supra, at p. 3.) Although Plaintiff’s action does not allege violations of the First Amendment, it does allege violations of Article I, Section 4, of the California Constitution which is at least as protective of religious liberties as the First Amendment (Catholic Charities of Sacramento v. Superior Court (2004) 32 Cal.4th 527, 562.) At the time of this writing (12/10/20), California does not permit indoor religious services in the four counties in which Plaintiff operates. In fact, between the Blueprint for a Safer Economy and the Regional Stay at Home Order, the State does not currently permit indoor religious services anywhere in the entire state. The harm to Plaintiff is self-evident.

On the other hand, Defendants have not shown that adding religious organizations to the long list of entities that are permitted indoor operations would negatively impact public health, assuming the same healthcare precautions were implemented. Defendants’ contention that the permissibility of outdoor religious services negates Plaintiff’s claims is not well received because, as noted above, several less burdensome means are available to advance the goals of public health and safety. Similarly, Defendants’ protestations that religious services may still be offered through means of modern telecommunication, such as TV or web-based platforms, seem specious because, as noted in Roman Catholic Diocese, “such remote viewing is not the same as personal attendance.” (Roman Catholic Diocese, supra, at p. 3.) Therefore, the interim harm to Plaintiff if the Motion for Preliminary Injunction were denied, would significantly outweigh the interim harm to Defendants if the motion were granted.

… The free exercise of religion clause in the California Constitution prohibits Defendants from treating religious activities worse than comparable secular activities. California’s current Covid-related restrictions do exactly that. This Court is not in a position to rewrite the restrictions or dictate to Defendants specifically how the restrictions may be cured. However, the Court is in a position to prohibit enforcement of the restrictions against Plaintiff pending trial, and rules accordingly. The Court makes no rulings at this time with respect to Plaintiff’s separation of powers claim. The Court also does not make any rulings with respect to Defendants’ Covid-related restrictions that were created at the city and county levels, except that those restrictions are also not enforceable against Plaintiff to the extent that they incorporate the State of California’s restrictions. Read more»

Hon. Gregory Pulskamp, Superior Court of California, County of Kern in Burfitt v. Newsom, December 10, 2020.

Editorial Notes:

1. Yesterday afternoon we went to get groceries etc. It was much more crowded and much less spaced than any indoor service held in any congregation I have seen since the Covid-19 protocols began last March. The same is true in big-box home improvement stores and in other secular commercial venues. The inequity in treatment is patently obvious.

2. The HB is now has a feature that highlights Bible references and links to the ESV. It is interpreting some abbreviations in the decision quoted above as Bible references. Judge Pulskamp was not citing Scripture.



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  1. What Carl Trueman could not have foreseen in his latest book, “The Rise and Triumph of the Modern Self,” due to the fact that the assembly of his work in order to meet a 2o20 publication date, was the acceleration of the State mandate against the gathering in religious worship over and against other more crowded public venues such as groceries, department stores, casinos, etc. All this is to say that the State seems to be using the opportunity of the “pandemic” to more swiftly usher in the age of “self identity” in keeping with recent court rulings as a catalyst to further usurp our Judeo-Christian ethic. And so it goes.

  2. This court ruling probably means very little. Whenever the Left gets a court ruling they don’t like, they ignore it or file a motion to delay its enforcement until they try again under more favorable terms. If we’re waiting for the governor to let us back inside, we’ll be waiting forever. Free men don’t ask. Our right to worship is inalienable and it is imperative for all of Creation. The magistrate has no right to regulate our worship any more than we have a right to dictate his governance. If we want to go back inside, let’s do it.

    • BRyce,
      WADR more to the point, it’s always been a First Commandment issue before it was a First Amendment issue, though it is that also. IOW the worship of God is a duty, if not a privilege before it is a right. The command to obey the civil magistrate doesn’t show up until the Fifth.

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