Worshipers gather for a Christmas Eve mass in Los Angeles.

Worshipers gather for a Christmas Eve mass inside Cathedral of Our Lady of the Angels Thursday, Dec 24, 2020, in Los Angeles. | Ashley Landis/AP

A federal appeals court panel appears poised to find that Gov. Gavin Newsom’s monthslong coronavirus limits on houses of worship violate the religious freedom rights of Californians, but a majority of the judges on the case sounded unlikely Monday to immediately reverse tighter stay-at-home restrictions imposed last month due to a record surge in infections.

At times during a spirited argument session Monday afternoon, the three judges of the 9th Circuit Court of Appeals seemed to spar with each other about aspects of the state’s ban on indoor worship services.

Judge Morgan Christen, an Obama appointee, expressed agreement with Judge Diarmuid O’Scannlain, a Reagan appointee, that aspects of the so-called blueprint Newsom announced last April are likely unconstitutional under standards the Supreme Court set out in a 5-4 decision in November about New York’s limits on religious observation.

“The Supreme Court took a very strong exception to a numerical cap imposed without regard to the size of the facility,” Christen said.

“Why does it have to be a total ban?” O’Scannlain asked, noting that indoor worship is banned even if a church has massive capacity. “Why should the rules be identical, regardless of the size?”

“Our experts have said when you have the virus as widespread as it is and raging as it is … any indoor gatherings just pose too great of a risk,” California Deputy Attorney General Todd Grabarsky said.

“It’s very troubling,” Christen responded. “I have telegraphed that I’m troubled by that part of the blueprint.”

However, Christen said the court did not have enough written arguments from the state and religious freedom advocates about the stay-at-home orders the state imposed on Dec. 3 after infections surged and intensive care unit capacity dwindled.

While indoor worship is still banned, the stay-at-home rules impose stricter limits on some commercial activity, so the restrictions on churches are arguably less of an outlier. For instance, the state forced restaurants to shut outdoor dining and closed hair salons under the December orders that apply to nearly all Californians.

“It’s the state’s position it’s not targeting or singling out religious services under the blueprint, but that’s more apparent under the stay-at-home order,” Grabarsky said. “The context in which this regional stay at home order was issued was in this really massive unprecedented surge of COVID infections, hospital rationing and death.”

The third judge on the panel, Clinton appointee Johnnie Rawlinson, was less clear about her views on the state’s ongoing church restrictions.

She acknowledged the impact on religious practice, but said the state’s interests in public health were compelling. “The state has a very high interest, as well, to protect churchgoers as well as nonchurchgoers from this disease,” Rawlinson commented.

However, Rawlinson agreed with Christen that the court wasn’t in a position yet to rule on the new stay-at-home order.

“We don’t have elucidation on how the factors set forth by the Supreme Court apply to the facts as modified by the stay-at-home order,” Rawlinson said.

O’Scannlain contended that the court already knew enough about the December order and the underlying facts to rule on it. “I don’t understand why it makes any difference — any relevant difference,” he said.

A lawyer for Harvest Rock Church in Pasadena and related churches, Mat Staver, said California’s limits on worship are severe.

“This is the most restrictive provision in the entire nation,” Staver complained. “They just don’t trust the people to gather together and worship, but they trust the same people to go to the factories, to the big box centers, to the grocery stores and touch the same items and the same handle that everybody else puts their hands on.”

Christen noted that the state’s medical experts concluded indoor worship was different than shopping because group worship is a social activity, but Staver told the judges that the Supreme Court’s ruling on New York’s limits means the courts shouldn’t defer to medical specialists. That decision represented a significant shift at the court, as new Trump-appointed Justice Amy Coney Barrett led to the court effectively reversing its earlier stance deferring to state officials.

“Frankly, the Supreme Court … rejected the experts,” Staver said of the November ruling.

Newsom’s December order imposes stay-at-home orders on regions where intensive care unit capacity has dipped below 15 percent. That currently applies to four of the five areas drawn by California, encompassing virtually all of the state’s population — fewer than a million of California’s roughly 40 million residents live in the still-open rural northern region.

Those restrictions are likely to endure for weeks or even months, with the state extending orders for regions where soaring caseloads have continued to strain hospitals. O’Scannlain expressed concern about the open-ended duration of those constraints.

“More likely we’re talking months, if not through the summer,” he said. “We’re talking about the protection of a constitutional right which is vested in the First Amendment.”

Two days before Christmas, the same appeals court panel voted, 2-1, to deny emergency relief to Harvest Rock and its related churches to legally hold indoor services on Christmas Eve and Christmas Day. O’Scannlain said the churches’ case appeared “strong” and he suggested his colleagues were indifferent to the significance of the holiday.

“We should have granted the church at least the temporary relief it needs to ensure that its members can exercise freely the fundamental right to practice their Christian religion on one of the most sacred Christian days of the year,” he wrote.

Jeremy White contributed to this report.

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