This one doesn't involve a takings claim, but since we're tracking the cases involving coronavirus-related shut down orders and restrictions, we thought we would post this here too.
In Harvest Rock Church, Inc. v. Newsom, No. 20-55907 (Oct. 1, 2020), a panel of the Ninth Circuit rejected a church's request for an injunction pending appeal of the District Court's denial of a preliminary injunction. The church is challenging the California governor's order that have the effect of restricting religious services even though the orders apparently do not expressly target religious services:
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.
Slip op. at 3.
One Ninth Circuit judge wasn't on board with this view. Judge O'Scannlain dissented, concluding that "[t]he 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 than it does against comparable secular activities." Dissent at 1-2. The judge would have held that "California's COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities." Dissent at 4.
The majority's analysis is short and the dissent's is a lot more detailed, so we suggest you read the entire thing to understand we're thinking that this one isn't over yet.
Harvest Rock Church, Inc. v. Newsom, No. 20-55907 (9th Cir. Oct. 1, 2020)
