SAN FRANCISCO (CBS SF) — A divided panel of the 9th Circuit Court of Appeals on Thursday refused to block Gov. Gavin Newsom’s executive order restricting in-person worship because of the risk of spreading COVID-19.

The panel voted 2-1 to deny an emergency motion filed by Harvest Rock Church in Pasadena to block Newsom’s order. Judges Johnnie B. Rawlinson, a Clinton appointee, and Morgan Christen, an Obama appointee, rejected the request, stating that “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 majority wrote.

Given the serious health risks of COVID-19 spread and the neutral character of the restrictions, the majority found there was no constitutional violation.

Reagan-appointed Judge Diarmuid O’Scannlain dissented, writing “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, emphatically, does not allow a State to pursue such measures against religious practices more aggressively than it does against comparable secular activities,” O’Scannlain wrote.

The dissent was three-times the length of the decision.

The governor’s order forbids in-person worship services in “Tier 1” counties where the COVID-19 risks are greatest. The order limits the services to under 100 people or 25 percent of capacity in lower-risk “Tier 2” counties. Similar but more relaxed restrictions apply in Tier 3 and 4 counties.

In September, a federal district court in Los Angeles rejected a challenge to the executive order based on the argument that the limitations infringed on religious freedom and violated the First Amendment of the U.S. Constitution. The plaintiffs in that case appealed and asked the appellate court for an emergency order blocking Newsom’s order during the appeal.

Harvest Rock filed its lawsuit earlier this year. The church began openly defying Newsom’s order back in July by holding indoor services. At the time, Pastor Che Ahn said “As a pastor, I believe we’ve been essential for 2,000 years.”

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