FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HARVEST ROCK CHURCH, INC., itself 

and on behalf of its member churches in 

California; HARVEST INTERNATIONAL 

MINISTRY, INC., itself and on behalf of its 

member churches in California, 

Plaintiffs-Appellants, 

 v. 

GAVIN NEWSOM, in his official capacity 

as Governor of the State of California, 

Defendant-Appellee.

No. 20-55907 

D.C. No. 

2:20-cv-06414-JGB-KK 

Central District of California, 

Los Angeles 

ORDER

Before: O’SCANNLAIN, RAWLINSON, and CHRISTEN, Circuit Judges.

Dissent by Judge O’SCANNLAIN. 

Harvest Rock Church, Inc., and Harvest International Ministry, Inc., 

(Harvest Rock) challenge the constitutionality of California Governor Gavin 

Newsom’s COVID-19 Executive Orders and related restrictions (Orders) as they 

apply to in-person worship services. The district court denied Harvest Rock’s 

request for a preliminary injunction barring enforcement of the Orders as to its inperson worship services. Harvest Rock appealed and has filed an emergency 

motion asking this court to enjoin enforcement of the Orders pending appeal. 

FILED

OCT 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

In order to demonstrate that an injunction pending appeal is warranted, 

Harvest Rock must show that it is likely to succeed on the merits, that it is likely to 

suffer irreparable harm in the absence of preliminary relief, that the balance of 

equities tips in its favor, and that an injunction is in the public interest. See Winter 

v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008); see also Feldman v. Ariz.

Sec’y of State’s Office, 843 F.3d 366, 367 (9th Cir. 2016) (“The standard for 

evaluating an injunction pending appeal is similar to that employed by district 

courts in deciding whether to grant a preliminary injunction.”). As to a likelihood 

of success on the merits, Harvest Rock must demonstrate that it is likely this court 

will conclude the district court abused its discretion in denying the preliminary 

injunction. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1436 (9th Cir. 1983) (abuse 

of discretion standard governs an appeal from the denial of a preliminary 

injunction). Our review of the denial of a preliminary injunction is “limited and 

deferential.” Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 

918 (9th Cir. 2003) (en banc). We consider “only the temporal rights of the parties 

until the district court renders judgment on the merits of the case based on a fully 

developed record.” Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 

782, 793 (9th Cir. 2005) (citation omitted). 
3

We find that Harvest Rock has not shown a likelihood of success on its 

argument that the district court abused its discretion by declining to enjoin the 

Orders. The evidence that was before the district court does not support Harvest 

Rock’s arguments that the Orders accord comparable secular activity more 

favorable treatment than religious activity. The Orders apply the same restrictions 

to worship services as they do to other indoor congregate events, such as lectures 

and movie theaters. Some congregate activities are completely prohibited in every 

county, such as attending concerts and spectating sporting events. The dissent 

states that the restrictions applicable to places of worship ‘do not apply broadly to 

all activities that might appear to be conducted in a manner similar to religious 

services,’ but does not provide support for this point. By our read the restrictions 

on theaters and higher education are virtually identical.

Harvest Rock also contends that the Governor failed to provide a rationale 

for the more lenient treatment of certain secular activities, such as shopping in a 

large store. However, the Governor offered the declaration of an expert, Dr. James 

Watt, in support of the claim that the risk of COVID-19 is elevated in indoor 

congregate activities, including in-person worship services. Harvest Rock did not 

offer a competing expert or any other evidence to rebut Dr. Watt’s opinion that 

congregate events like worship services are particularly risky. Because the district 

court based its order on the only evidence in the record as to the risk of spreading
4

COVID-19 in different settings, Harvest Rock is unlikely to show that the district 

court abused its discretion. 

We also conclude that Harvest Rock failed to demonstrate that an injunction 

pending appeal is in the public interest. The Supreme Court considered and 

declined a similar request to enjoin application of California’s Orders as to worship 

services in South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 

1614 (2020) (Roberts, C.J., concurring) (deference to state officials is “especially” 

warranted where “a party seeks emergency relief in an interlocutory posture, while 

local officials are actively shaping their response to changing facts on the 

ground.”). Harvest Rock has not shown that the restrictions at issue in this appeal 

are materially different than those presented in South Bay United Pentecostal, and 

though we are not bound by it, we are persuaded by the Supreme Court’s 

conclusion that injunctive relief is not warranted. See United States v. Montero–

Camargo, 208 F.3d 1122, 1132 n. 17 (2000) (en banc) (non-binding Supreme 

Court dicta is accorded “appropriate deference” (citation omitted)).

For these reasons, the emergency motion for an injunction pending appeal 

(Docket Entry No. 6) is denied. 

We grant the motion to file the amicus brief in support of the Governor for 

purposes of this emergency motion (Docket Entry No. 9). 
1

Harvest Rock Church, Inc. v. Newsom, No. 20-55907

O’SCANNLAIN, J., dissenting:

At present, in 18 counties in California—home to more than 15 million 

residents and including its most populous county, Los Angeles—indoor religious 

worship services are completely prohibited.

1

 California insists that this drastic 

measure is necessary to fight the ongoing global COVID-19 pandemic—a worthy 

and indeed compelling goal of any State. Yet, in these same counties, the State 

still allows people to go indoors to: spend a day shopping in the mall, have their 

hair styled, get a manicure or pedicure, attend college classes, produce a television 

show or movie, participate in professional sports, wash their clothes at a 

laundromat, and even work in a meatpacking plant. 

The Constitution allows a State to impose certain calculated, neutral 

restrictions—even against churches and religious believers—necessary to combat

emergent threats to public health. But the Constitution, emphatically, does not 

allow a State to pursue such measures against religious practices more aggressively 

1 See Cal. Dep’t Pub. Health, Blueprint Data Chart (Sept. 29, 2020), 

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20

Library/COVID-19/Blueprint_Data_Chart_092920.xlsx; State of California, 

Covid-19 Blueprint Activity and Business Tiers 1 (last updated Sept. 28, 2020), 

https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/

COVID-19/Dimmer-Framework-September_2020.pdf. 

Attendance at in-person religious worship services is allowed but tightly 

capped in California’s remaining counties, as explained below. See infra Part II.A.

FILED

OCT 1 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

than it does against comparable secular activities. See Calvary Chapel Dayton 

Valley v. Sisolak, 140 S. Ct. 2603, 2605 (2020) (mem.) (Alito, J., dissenting); 

South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1615 (2020)

(mem.) (Kavanaugh, J., dissenting). Because California’s present coronavirusrelated initiatives do exactly that, I respectfully dissent from the majority’s 

decision not to enjoin them pending Harvest Rock Church’s appeal in this case. 

I

I first clarify a point that is somewhat obscured by the majority’s decision: 

we are neither bound nor meaningfully guided by the Supreme Court’s decision to 

deny a writ of injunction against California’s restrictions on religious worship 

services earlier this year. See South Bay United Pentecostal Church, 140 S. Ct. at 

1613. That decision, which considered a challenge to an earlier and much different 

iteration of California’s restrictions, was unaccompanied by any opinion of the 

Court and thus is precedential only as to “the precise issues presented and 

necessarily decided.” Mandel v. Bradley, 432 U.S. 173, 176 (U.S. 1977) (per 

curiam). In that case, the Supreme Court considered whether to issue a writ of 

injunction under the All Writs Act, 28 U.S.C. § 1651(a), a more demanding 

standard than that which applies to the motion for an injunction pending appeal 

here. Compare Hobby Lobby Stores, Inc. v. Sebelius, 568 U.S. 1401, 1403 (2012) 

(Sotomayor, J., as Circuit Justice) (discussing the standard for issuing a writ of 
3

injunction, which is an “extraordinary” measure to be “used sparingly” and “only 

when it is necessary or appropriate in aid of our jurisdiction and the legal rights at 

issue are indisputably clear” (alterations and internal quotation marks omitted)), 

with Se. Alaska Conservation Council v. U.S. Army Corps of Eng’rs, 472 F.3d 

1097, 1100 (9th Cir. 2006) (“In deciding whether to grant an injunction pending 

appeal, the court balances the plaintiff’s likelihood of success against the relative 

hardship to the parties.” (internal quotation marks omitted)). Without any opinion 

of the Court, we have no guidance whatsoever—not even in the form of “dicta” as 

the majority suggests, Maj. at 4—as to why the Court declined to provide such an 

extraordinary remedy, and we certainly have no basis to infer that a majority of the 

Court agreed upon some unstated rationale that somehow applies equally here.2

 

Cf. Makekau v. Hawaii, 943 F.3d 1200, 1205 (9th Cir. 2019) (“[T]he mere fact that 

the injunction order issued under the All Writs Act does not prove that the 

Supreme Court . . . addressed the merits [of the underlying claim].”). 

II

Turning to the motion before us, I respectfully disagree with the majority’s 

conclusion that Harvest Rock Church is unlikely to succeed on the merits of its 

2 This is true even if one agrees—and to be clear, I do not agree—with the 

majority’s assertion that Harvest Rock Church “has not shown that the restrictions 

at issue in this appeal are materially different than those presented in South Bay

United Pentecostal.” Maj. at 4.
4

free exercise challenge to California’s severe restrictions on religious worship in 

the State. 

There is no doubt that California’s COVID-19 scheme (described more fully 

below) imposes direct and severe burdens on religious practice within the State. 

And where a State imposes such burdens through measures that are not “neutral 

and of general applicability,” its actions must survive strict scrutiny. Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993). “The

Free Exercise Clause bars even subtle departures from neutrality on matters of 

religion.” Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct.

1719, 1731 (2018) (internal quotation marks omitted). Because California’s 

COVID-19 regulations patently disfavor religious practice when compared to 

analogous secular activities, I believe that the church is quite likely indeed to 

succeed on the merits of its challenge to such regulations.

A

First, California’s complex morass of COVID-related restrictions fails even 

the “minimum requirement of neutrality”: such restrictions discriminate against 

religious practice “on [their] face.” Lukumi, 508 U.S. at 533. 

Contrary to how California would portray its scheme, at this point there is no 

“neutral” or “generally applicable” State policy that one can apply to determine 

whether or to what extent any particular activity is permissible. Instead, California 
5

has announced a variegated and ever-changing “Blueprint for a Safer Economy,” 

which regulates all manner of in-person activities by meticulously delineating 

those activities which may take place. See State of California, Blueprint for a 

Safer Economy (last updated Oct. 1, 2020), https://covid19.ca.gov/safer-economy

[hereinafter “Cal. Blueprint”]. Despite its deceptively cohesive title, this 

“Blueprint” is in reality an amalgamation of dozens of independent restrictions and 

“guidance” documents, each of which pertains only to a specific category of 

activity within the State. There are, at this point, independent restrictions targeted 

to nearly forty categories of activity (many of them further subdivided into more 

categories), including retail shopping outlets, grocery stores, offices, fitness 

centers, places of higher education, schools, barbershops, warehouses, food 

packing facilities, film and television studios, family entertainment centers, 

museums, professional sports facilities, and “places of worship.” See State of 

California, COVID-19 Industry Guidance (last updated Sept. 29, 2020), 

https://covid19.ca.gov/industry-guidance [hereinafter “Industry Guidance”]. 

Under this patchwork scheme, it is the State’s substantive categorization of an 

activity that determines its level of regulation, not any “neutral” or “generally 

applicable” feature of that activity itself. 

Relevant here, the restrictions prescribed for “places of worship” limit 

attendance at in-person worship services as follows: (1) at the most severe, in 
6

counties designated to be “Tier 1” risks for COVID-19 spread,

3 no in-person 

worship services may be held; (2) in Tier 2 counties, worship services may be held 

with no more than 25% of a building’s capacity or 100 persons in attendance, 

whichever is fewer; (3) in Tier 3 counties, worship services can be held with no 

more than 50% of a building’s capacity or 200 persons in attendance, whichever is 

fewer; and, finally, (4) in Tier 4 counties, worship services can be held with no 

more than 50% of a building’s capacity, with no additional cap on attendance. 

State of California, Covid-19 Blueprint Activity and Business Tiers 1 (last updated 

Sept. 28, 2020), https://www.cdph.ca.gov/Programs/CID/DCDC/

CDPH%20Document%20Library/COVID-19/Dimmer-FrameworkSeptember_2020.pdf [hereinafter “Blueprint Tiers”]. Critically, these same 

parameters do not apply broadly to all activities that might appear to be conducted 

in a manner similar to religious services—for example, educational events, 

meetings, or seminars. Instead, each of these (and many other potentially similar) 

activities is regulated entirely separately from, and often more leniently than, 

religious services. See Industry Guidance, supra (providing restrictions separately 

governing institutes of higher education, museums, theaters, and schools); see also, 

3 The State assigns each county to one of four tiers based on the recently 

documented number of COVID-19 cases in the county. The assignments are 

regularly reviewed and, as infection numbers change, a county may be moved up 

or down the State’s tiers. See Cal. Blueprint, supra. 
7

e.g., State of California, COVID-19 Essential Workforce (last updated Sept. 22, 

2020), https://covid19.ca.gov/essential-workforce [hereinafter “Essential 

Workforce”] (designating as “essential workforce”—and therefore exempt from 

other COVID-19 restrictions—“academies and training facilities and courses for 

the purposes of graduating students and cadets that comprise the essential 

workforce for all identified critical sectors”). Indeed, even non-worship activities 

conducted by or within a place of worship are not subject to the attendance 

parameters outlined above. See Cal. Dep’t of Pub. Health, COVID-19 Industry 

Guidance: Places of Worship and Providers of Religious Services and Cultural 

Ceremonies 3 (July 29, 2020) [hereinafter “Places of Worship Guidance”].

In sum, the restrictions on religious worship services that Harvest Rock 

Church challenges here apply because—and only because—the activities they wish 

the host and partake in have been identified, substantively, as “religious” or 

“worship” services.

B

California contends that the many idiosyncratic lines it has drawn between 

activities within the State are not actually tied to the substantive content of those 

activities but instead reflect the State’s expert judgment regarding the risk that each

activity presents of spreading COVID-19. The majority accepts the State’s 

characterization, insisting that “the Governor offered the declaration of an 
8

expert . . . in support of the claim that the risk of COVID-19 is elevated in indoor 

congregate activities, including in-person worship services.” Maj. at 3. The 

problem, however, is that the very features that California’s expert identified as 

especially dangerous in religious worship appear to have been ignored by the State 

in its decision to allow numerous other activities to occur, even though they selfevidently exhibit the same features.

California’s epidemiological expert, Dr. James Watt, declared that the State 

determined church attendance to be particularly risky because: (1) gatherings of 

“people from different households” increase the risk of spreading the virus; (2) 

there have been “multiple reports” of COVID-19 spread resulting from religious 

events; (3) the virus is more likely to spread “when people are in close contact or 

proximity with one another (within about six feet)”; (4) the risk of transmission 

increases in groups where people speak, chant, shout, and sing in close proximity 

indoors; and (5) gatherings with “longer duration” increase the opportunity for the 

virus to spread. In his declaration, Dr. Watt distinguished the threat posed by 

religious services from the supposedly lesser threat posed by shopping in a store or 

working in an office where, according to him (but with no evidence or expertise in 

support),4 interpersonal encounters are much briefer or more easily regulated. 

4 At oral argument on this motion, counsel for the State conceded that Dr. 

Watt is not qualified as an expert to opine on what takes place at religious worship 

services or how people interact there as opposed to in other settings of public life.
9

1

The first flaw in the majority’s uncritical acceptance of this “evidence” 

supporting California’s severe restrictions on church attendance is that the bulk of 

the identified risk factors have already been addressed by other measures imposed 

by the State. In those counties where indoor worship is actually allowed to take 

place, congregants must observe six-foot distancing, must wear masks, and may 

not sing or chant. See generally Places of Worship Guidance, supra. With such

measures in place, Dr. Watt’s professed concerns about physical proximity and 

vocal projections fall flat. How would the State distinguish a physically distanced, 

masked, and silent congregation sitting in a church from any other setting where 

the same number of people are present under the same roof for any other purpose? 

We do not know the answer, and I question whether the State could supply one that 

is neutral as to the practice of religion.

2

More centrally, even if we were to accept Dr. Watt’s assertion that the State 

has reason to find religious services more dangerous than activities like shopping 

or working in an office, the glaring problem for the State is that it has offered no 

evidence to support the notion that the myriad other activities which are less 

restricted than religious services are somehow safer by these same parameters. 

The State more freely allows an abundance activities to take place which, on their 
10

face, share the same risk factors that Dr. Watt identified as so concerning about 

church attendance, including: having one’s hair cut and styled at a salon;

5 getting a 

manicure or pedicure;

6 working in a warehouse, food-production facility, or 

meatpacking plant;

7 playing, coaching, or broadcasting professional sports

(including participating in games, practices, workouts, film sessions, and large 

team meetings);

8 attending college classes;9 filming a television show or movie;10

5 Barbershops and hair salons may open in all counties, without limitations 

on the number of people who may be present. See Blueprint Tiers, supra, at 1.

6 As of September 22, 2020, nail salons may open in all counties, without 

limitations on the number of people who may be present. See Blueprint Tiers,

supra, at 2.

7 All of these facilities have been designated as “essential critical 

infrastructure,” and they may operate in all counties, without limitations on the 

number of people who may be present. See Blueprint Tiers, supra, at 1; Essential 

Workforce, supra. 8 In all counties, professional sports may take place without restrictions on 

the number of people present (but with no fans in attendance). See Blueprint Tiers,

supra, at 5; Industry Guidance, supra. 9 In all counties at least some courses, like laboratory sciences and studio 

arts, may be conducted indoors, without limitations on the number of people 

present. See Industry Guidance, supra. 10 California has deemed “entertainment industries, studios, and other related 

establishments” to be “essential critical infrastructure,” and such businesses may 

open in all counties, without restriction on the number of people in attendance. See 

Blueprint Tiers, supra, at 1; Essential Workforce, supra.
11

exercising at the gym;

11 or washing clothes at a laundromat.12 All of these

activities involve gatherings of people from different households for extended 

periods of time—in many cases, hours on end. Many are carried out in close 

proximity with others including some—like playing sports, receiving a haircut, 

getting a manicure, or acting out a scene in a movie—that simply cannot be 

undertaken while also practicing six-foot social distancing and wearing a mask. 

Some involve speaking loudly or shouting—for example, on an indoor television

studio set filled with actors projecting lines and directors barking orders or in an 

indoor practice facility or locker room filled with dozens of professional athletes 

and coaches shouting instructions to each other—which (unlike singing in a 

church) the State has permitted to continue. And some have been widely reported

to have resulted in significant outbreaks across the country, a fact the State itself 

acknowledges. See Cal. Dep’t of Health, COVID-19 Industry Guidance: Food 

Packing and Processing 1 (July 29, 2020) (“There have been multiple outbreaks in 

a range of workplaces, [including at] hospitals, long-term care facilities, prisons, 

11 Although fitness centers must close in Tier 1 counties, at Tiers 2, 3, and 4 

they may open at 10%, 25%, and finally 50% capacity respectively, with no 

additional cap on attendance like that imposed on churches. See Blueprint Tiers,

supra, at 3. Thus, in a Tier 2 or 3 county, a fitness center with a capacity greater 

than 1,000 people would be allowed to admit more people than would a church of 

the same size.

12 Laundromats are designated as “essential critical infrastructure” and may 

open in all counties, without limitations on the number of people who may be 

present See Blueprint Tiers, supra, at 1; Essential Workforce, supra.
12

food production, warehouses, meat processing plants, and grocery stores.”); see 

also, e.g., Anna Stewart, et al., Why Meat Processing Plants Have Become 

COVID-19 Hotbeds, CNN Health (June 27, 2020), https://www.cnn.com/

2020/06/27/health/meat-processing-plants-coronavirus-intl/index.html; Brady 

Dennis & Chelsea Janes, Coronavirus Outbreak in Major League Baseball Casts 

Pall Over Other Reopenings, Washington Post (July 28, 2020), 

https://www.washingtonpost.com/health/2020/07/28/coronavirus-outbreaksbaseball-schools. Yet, despite sharing these supposedly critical features of church 

attendance, these activities are all more open and available to Californians. If the 

reason is based in some other neutral assessment of disease spread, it has not been 

provided to us in this case.

3

The majority makes much of the fact that, at this point, the State has 

imposed the same attendance restrictions on some secular “congregate” activities 

such as attending some academic lectures or going to see a movie in a theater. 

Maj. at 3. But the majority cannot dispute that not all such activities are so tightly 

restricted—such as participating in a college class in a laboratory or studio setting 

or attending a team meeting or film-review session in the auditorium of a 

professional sports facility. More to the point, even if it is true that the State has 

similarly regulated some congregate activities with analogous risks of disease 
13

spread, that does not end our inquiry. Indeed, “it does not suffice to point out that 

some [comparable] secular businesses . . . are subject to the [same restrictions],” if 

the State cannot also explain why so many other comparable secular businesses 

have been treated more favorably. Calvary Chapel Dayton Valley, 140 S. Ct. at 

2613–14 (Alito, J., dissenting); see also id. at 2614 (“The legal question is not 

whether religious worship services are all alone in a disfavored category, but why 

they are in the disfavored category to begin with.” (citing Emp’t Div., Dep’t of 

Human Res. of Or. v. Smith, 494 U.S. 872, 884 (1990))). Thus, the State cannot 

evade the Free Exercise Clause merely by linking its severe restrictions on worship 

attendance to those imposed on one or two categories of comparable secular 

activity; it must also justify its decision to treat more favorably a host of other 

comparable activities which so evidently raise the State’s same expressed concerns 

about disease spread. 

C

Finally, we cannot overlook the fact that the State’s restrictions on houses of 

worship explicitly exempt on-site non-religious activities from the strict attendance

restraints. California’s guidelines for places of worship warn of the supposed 

danger in individuals coming together specifically “to practice a personal faith,” 

and they make clear that the restrictions on places of worship do not apply to nonworship activities including “food preparation and service, delivery of items to 
14

those in need, childcare and daycare services, school and educational activities, inhome caregiving, counseling, office work, and other activities that places and 

organizations of worship may provide.” Places of Worship Guidance, supra, at 3. 

Thus, California’s framework would plainly permit a church in a Tier 1 county to 

host a group of people for some non-religious purpose, but the same church would 

be prohibited from hosting an event for the same people in the same setting for the 

same length of time simply if it were for purposes of religious worship. It is 

difficult to conceive of a more obvious form of discrimination against religious 

activity than that. 

III

Because Harvest Rock Church is likely to succeed on the merits of its freeexercise challenge, it follows that the balance of hardships also tips in its favor. 

Without an injunction, the church and its congregants will be prohibited from 

exercising their First Amendment freedoms—the loss of which, “for even minimal 

periods of time, unquestionably constitutes irreparable injury.” In re Dan Farr 

Prods., 874 F.3d 590, 597 (9th Cir. 2017) (per curiam) (internal quotation marks 

omitted). And, while California has a compelling interest in limiting the spread of 

a deadly disease, the State is not harmed by pursuing that interest—as the 

Constitution requires—equally against religious and non-religious activities alike. 

See, e.g., Legend Night Club v. Miller, 637 F.3d 291, 302–03 (4th Cir. 2011) 
15

(“Maryland is in no way harmed by issuance of an injunction that prevents the 

state from enforcing unconstitutional restrictions.”).

I respectfully dissent from the majority’s decision to deny Harvest Rock

Church’s motion for an injunction pending appeal.