Emergency Docket

Divided court allows indoor worship services to resume in California

More than eight months after the Supreme Court declined to intervene in a California church’s challenge to the state’s stay-at-home orders issued as a result of the COVID-19 crisis, the justices late Friday night gave the go-ahead for California churches to resume indoor worship services. The court was divided in its ruling, which will still allow the state to enforce its ban on singing and chanting and limit attendance at 25% of capacity.

The decision came in a pair of challenges from South Bay United Pentecostal Church, located just south of San Diego, and Harvest Rock Church, with campuses in different locations in southern California. They came to the Supreme Court last month, arguing that California’s restrictions on indoor worship services violate the Constitution, particularly when some businesses are allowed to remain open. The churches pointed to the Supreme Court’s November 2020 decision in Roman Catholic Diocese of Brooklyn v. Cuomo, blocking enforcement of a New York executive order limiting attendance at worship services. The California churches complained that the lower courts had “refused to recognize” the “‘seismic shift’ in COVID-19 jurisprudence” that the Supreme Court’s ruling in Roman Catholic Diocese had created.

In a pair of orders issued shortly before 11 p.m. on Friday night, a divided court gave the churches most – if not all – of what they wanted, by clearing the way for the churches to hold indoor worship services until their appeals are resolved. The justices allowed the state to enforce restrictions on attendance as well as a ban on singing and chanting, although they left open the possibility that the churches could return to the trial court with evidence that the state is not applying either set of restrictions to everyone.

Friday’s ruling spawned several different opinions. Justices Clarence Thomas and Neil Gorsuch indicated that they would have given the churches everything that they had asked for – that is, allowed them to reopen immediately without any limitations. In a statement that was also joined by Justice Samuel Alito, they suggested that it is not difficult to determine in this case whether California has singled out religion for special, and more stringent, treatment. They acknowledged that the state “has a compelling interest in reducing” the risk of transmitting COVID-19, but they expressed skepticism that the state’s justifications for placing restrictions on worship services – that they involve people from different households meeting together for extended periods of time and singing – are unique to worship services. The justices concluded by noting that the state may argue on remand that the restrictions are only temporary “because vaccinations are underway.” But it “is too late for the State” to make that argument as “this crisis enters its second year,” they stress, and “if 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.”

Although Alito joined the Thomas and Gorsuch statement and agreed with them that he would grant the churches’ requests in full, he indicated that his preferred course would have been to give the state 30 more days to present additional evidence before an injunction against the singing ban and the 25% capacity limits could take effect. Under Alito’s proposal, that injunction would go into effect after the 30 days unless the state could show 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.”

Justice Amy Coney Barrett filed a brief opinion that was joined by Justice Brett Kavanaugh. She focused on the court’s decision to allow, at least for now, the state to enforce its ban on singing and chanting at worship services. She explained that it was the churches’ responsibility to show that they were entitled to relief from the ban on singing, and that – at least in her view – they had not done so. As a result, she wrote, it was not clear whether the ban on singing and chanting applies only to religious services, or whether it applies more broadly – for example, to Hollywood productions. The one-paragraph opinion was the first signed opinion that Barrett has issued since joining the Supreme Court in October.

In his own opinion, Chief Justice John Roberts reiterated a view that he expressed in an earlier challenge by South Bay United Pentecostal Church: the idea that “federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health.’” As a result, Roberts explained, he saw no reason to overturn the state’s determination that singing indoors creates a greater risk of COVID-19 transmission. However, he continued, the ban on indoor worship services “appears to reflect not expertise or discretion, but instead insufficient appreciation of the interests at stake.” “Deference, though broad,” he concluded, “has its limits.”

Justice Elena Kagan dissented from the decision, in a six-page opinion joined by Justices Stephen Breyer and Sonia Sotomayor. She complained that although the justices “are not scientists” and do not “know much about public health policy,” the majority had nonetheless opted to displace “the judgments of experts about how to respond to a raging pandemic.” “Under the Court’s injunction,” Kagan lamented, California is required to “treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.” “No one can know, from the Court’s 19-line order, exactly why” the court reaches that conclusion, Kagan observed: “Is it that the Court does not believe the science, or does it think even the best science must give way?”

Kagan concluded by suggesting that Friday’s order raises questions – about when limits on capacity are allowed, and whether an indoor ban on worship services is ever permissible, for example – that may resurface in future cases. “The Court’s decision,” she posited, “leaves state policymakers adrift, in California and elsewhere. It is difficult enough in a predictable legal environment to craft COVID policies that keep communities safe. That task becomes harder still when officials must guess which restrictions this Court will choose to strike down,” she wrote.

This article was originally published at Howe on the Court.