SCOTUS Decides South Bay v. Newsom II, Enjoins Complete Prohibition on Indoor Worship Services
Around 10:45 PM ET on Friday evening, the Supreme Court decided South Bay United Pentecostal Church v. Newsom II. (I blogged about the briefing earlier this week). Here is the bottom line: six Justices enjoined California’s complete prohibition on indoor worship in so-called Tier 1 zones. Beyond that, the conservatives splintered sharply.
Unsigned Per Curiam Opinion
Let’s start with the unsigned per curiam opinion. First, the Court blocked Governor Newsom from prohibiting indoor worship by the Applicants:
Respondents are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari.
In theory at least, Newsom could continue to enforce the regulations as to other houses of worship. The Supreme Court’s injunction is not universal. But as a practical matter, Newsom would be sued by other churches, and he could not rely on qualified immunity. Therefore, for practical purposes, he will have to stop enforcing the ban on indoor worship statewide. Plus, Newsom is facing a recall, and has thrown #science to the wind to save his political skin. (More on the politics later).
Second, the Court allowed the church to limit attendance to 25%. The Court reached a similar ruling in Diocese of Brooklyn.
The application is denied with respect to the per-centage capacity limitations, and respondents are not en-joined from imposing a 25% capacity limitation on indoor worship services in Tier 1.
Currently, this issue is being litigated in New York. In short, Governor Cuomo has agreed that houses of worship should be subject to the same occupancy limits as other “essential’ businesses. I am not sure what percentage other businesses in California can open up with.
Third, the Court allowed the state to ban “singing and chanting.”
The application is denied with respect to the prohibition on singing and chanting during indoor services.
Fourth, the Court allowed the Church to present evidence that the percentage caps, and ban on signing and chanting are not generally applicable.
This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.
Justice Gorsuch’s concurrence suggests these rule are not generally applicable. Given the district court judges that ruled on these injunctions before, I do not think these arguments will receive a warm welcome. Punt.
Fifth, the Court has teed up the COVID-19 endgame:
Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
As soon as the Court denies certiorari this injunction lifts. The Court can then hold onto the petition until the pandemic concludes, and let this case dissolve. For now, the parishioners of South Bay no longer have to weather the elements to pray. The courts should have entered this relief before Christmas. Once again, contrary to what Justice Breyer suggested, these cases take weeks and months, not “hours.”
The Court issued a similar order in the companion case, Harvest Rock.
Now, let’s break down the separate writings.
Justices Thomas, Gorsuch, and Alito
Justices Thomas and Gorsuch would have granted “the application in full.” In other words, they would have enjoined the percentage caps, and the ban on singing and chanting indoors.
Justice Alito took a more measured approach:
JUSTICE ALITO would grant the application with respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting. JUSTICE ALITO 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.
Here, Justice Alito would immediately enjoin complete prohibition on indoor worship. He would give the state 30 days to prove that the percentage caps and ban on singing are absolutely essential to prevent community spread. If the state cannot meed that burden, then in 30 days, the stay will lift. Critically, the state has the burden. The majority per curiam opinion suggests the burden belongs to the churches.
Justice Gorsuch wrote a six-page statement, joined by Justices Thomas and Alito. But Chief Justice Roberts, and Justices Kavanaugh and Barrett did not join this statement.
First, Justice Gorsuch said this case was not “difficult.”
Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law re-flects ” ‘subtle departures from neutrality,’ ” ” ‘religious ger-rymander[ing],’ ” or “impermissible targeting” of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534–535 (1993). But not here. . . .
When a State so obviously targets religion for differential treatment, our job becomes that much clearer.
In the past, I have criticized Gorsuch for saying that tough cases are “simple.” He really should avoid this over-confidence. I agree South Bay should prevail, but this case does present really weighty issues on both sides.
Second, he favorably cites Becket’s amicus brief, which explained that California’s indoor ban was unprecedented:
Apparently, Califor-nia is the only State in the country that has gone so far as to ban all indoor religious services. See Brief for Becket Fund for Religious Liberty as Amicus Curiae, 5–6.
Third, Gorsuch finds that California’s directives must be reviewed with strict scrutiny. Here, absolute deference is not warranted.
It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests. Of course we are not scientists, but neither may we abandon the fi
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