SCOTUS Blocks California’s COVID-19 Ban on Indoor Religious Services
The Supreme Court on Friday night issued an injunction against California’s pandemic-inspired ban on indoor activities in houses of worship, suggesting that a Chula Vista church was likely to prevail in claiming that the rule violates the First Amendment’s guarantee of religious freedom. Although “federal courts owe significant deference to politically accountable officials with the “‘background, competence, and expertise to assess public health,'” Chief Justice John Roberts said in a concurring statement, “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.”
California restricts social and economic activity based on county-level COVID-19 data. In Tier 1 counties, a category that currently includes most of the state, houses of worship were not allowed to hold indoor services at all, regardless of their capacity or the precautions they took. In Tier 2 counties, indoor religious gatherings are limited to 25 percent of capacity.
The Supreme Court’s injunction, which remains in effect until the justices decide whether to review a decision against South Bay United Pentecostal Church by the U.S. Court of Appeals for the 9th Circuit, leaves in place the latter restriction, which the state is now applying in Tier 1 as well as Tier 2. The injunction also leaves undisturbed a ban on singing and chanting. But the order says the church will still have a chance to argue that “the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.”
That point is crucial to the case, because the Court has held that the First Amendment’s Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. At the same time, the Court has said laws that discriminate against religious conduct are presumptively unconstitutional. The six justices who thought an injunction was appropriate (Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) disagreed with the three dissenters (Stephen Breyer, Elena Kagan, and Sonia Sotomayor) about whether California’s ban on indoor religious gatherings in Tier 1 counties was neutral and generally applicable.
Gorsuch, in a statement joined by Thomas and Alito, said California is treating religious activities more harshly than secular activities that pose similar risks of virus transmission. “Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses,” he writes. “At ‘Tier 1,’ applicable today in most of the State, California forbids any kind of indoor worship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more. Apparently, California is the only State in the country that has gone so far as
to ban all indoor religious services.”
Gorsuch notes that California said this distinction was justified because religious services “involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing.” While “no one before us disputes that factors like these may increase the risk of transmitting COVID–19,” he says, the state imposed looser rules on secular activities that feature the same characteristics.
While California prohibited even small groups or solitary worshippers (going to confession, for example) inside churches, Gorsuch says, “scores might pack into train stations or wait in long checkout lines in the businesses the State allows to remain open.” The state
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