In a Friday night 6-3 injunction responding to emergency petitions from two California churches, the U.S. Supreme Court issued its opinion that California’s restrictions against worship services have gone too far. The court gave a short, unsigned opinion demanding California lift its restrictions on in-person, indoor church services while allowing California to keep banning singing and limiting attendance to 25 percent of church buildings’ capacity.
The decision allows churches to present evidence in lower courts that Gov. Gavin Newsom’s lockdown rules violate the First Amendment and other antidiscrimination measures by limiting their operations in ways that other institutions are not, such as the ability to meet indoors. The court’s injunction applied to two cases, South Bay United Pentecostal Church v. Newsom and Harvest Rock Church v. Newsom. Both churches challenged Newsom’s orders banning indoor worship while allowing indoor shopping, haircuts, manicures, and Hollywood productions.
“[I]f Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry,” noted Justice Neil Gorsuch in a concurring opinion.
In another concurring opinion, Justice Samuel Alito wrote that he would lift all restrictions against the houses of worship. He wrote he “would have the stay lift in 30 days unless the State demonstrates clearly that nothing short of those measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.”
Chief Justice John Roberts concurred, saying that “the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
“I adhere to the view that the ‘Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States,” Roberts continued. “But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure.” In this comment he was referring to Justice Elena Kagan’s perspective that the court should not be making a decision that could have far-reaching implications for which they would not be held accountable.
Kagan’s dissent claimed that if the court’s decision to allow people to gather for worship in California led to deaths, the court would be ethically liable for those deaths but would not suffer the consequences of that responsibility. In South Bay United Pentecostal Church v. Newsom, the church’s attorneys alleged that Newsom’s order that church services could only be held outside was a violation of their First Amendment right to religious freedom.
South Bay United Pentecostal Church of Chula Vista and Pasadena’s Harvest Rock were represented by the Becket Fund for Religious Liberty. Becket’s lawyers say California has “the most extreme restriction on worship in the country,” including being “the only state to ban indoor worship.”
Becket also noted that “Thirty-three states do not restrict the size of indoor religious worship gatherings at all. Eleven states have set only percentage-of-occupancy limits on religious worship services, allowing churches to worship within 50% or 75% of their occupancy.”
Gorsuch also said lower courts should have taken the Supreme Court’s fall ruling against New York state’s extreme and discriminatory restrictions on worship to mean that they should have overturned the California restrictions also. “This court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution,” he wrote. “Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this court already gave.”
“Once more,” he continued, “we appear to have a state playing favorites during a pandemic, expending considerable effort to protect more lucrative industries,” by which he meant big box retailers, movie studies, and so many other acceptable businesses, while unlawfully and discriminatorily shuttering churches.
The November ruling noted that New York Gov. Andrew Cuomo discriminated against houses of worship in his COVID rules also. “[I]t turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores,” the Supreme Court noted in the New York case.
“Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?”
At the time, Justice Sonya Sotomayor sided with public health officials, saying, “Justices of this Court play a deadly game in second-guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.”
It’s as though she believes that our founding fathers had never experienced pestilence and made the determination that constitutional rights are contingent on zero disease outbreaks. Yet Alexander Hamilton lived through a typhoid outbreak that claimed his mother’s life, and so many others of his era lost parents, siblings, and children to pandemics, plagues, and disease.
Newsom’s restrictions have been among the most far-reaching and overbearing in the nation, with people barred from leaving their homes while Whole Foods, Trader Joes, and Paramount Studios and others are free to remain open for business. Los Angeles Mayor Eric Garcetti famously said in December “cancel everything.” Were it not for constitutionalists on the Supreme Court and elsewhere, our liberties would be at the mercy of authoritarian executives and medical experts who, in many cases, can’t even get their guidance straight.
