Following the recent Roberts Court New York church decision in November, the US Supreme Court ruled 6-3 to strip California of the ability to close churches for pandemic health reasons, decreeing instead that the state can continue to limit attendance capacity.
The court ruled in cases brought by South Bay United Pentecostal Church in Chula Vista and Harvest Rock Church in Pasadena. The churches said restrictions imposed by Gov. Gavin Newsom, a Democrat, violated the Constitution’s protection of the free exercise of religion.
The restrictions set varying limits on attendance at religious services by county, depending on infection rates. With the pandemic raging, in-person worship services were entirely barred in Tier 1, which covers almost all of the state.
In a brief, unsigned opinion, the court blocked that total ban but left in place a 25 percent capacity restriction and a prohibition on singing and chanting. Justices Clarence Thomas and Neil M. Gorsuch said they would have blocked all of the restrictions. Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan dissented, saying they would have left all of the restrictions in place.
Chief Justice John G. Roberts Jr., in a concurring opinion, explained why a middle ground was appropriate. He said that the court should generally defer to public health experts but that there were limits to that deference.
“The state has concluded, for example, that singing indoors poses a heightened risk of transmitting Covid-19,” he wrote. “I see no basis in this record for overriding that aspect of the state public health framework.”
“At the same time,” the chief justice continued, “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.”
Justice Amy Coney Barrett, in her first opinion, wrote that she would not have blocked the restrictions on singing and chanting based on the available evidence. Justice Brett M. Kavanaugh joined her opinion.
Justice Gorsuch, joined by Justices Thomas and Samuel A. Alito Jr., said the state had favored its entertainment industry over worship services.
“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,” Justice Gorsuch wrote, “something has gone seriously awry.”
In dissent, Justice Kagan, joined by Justices Breyer and Sotomayor, said the majority had intruded into matters best left to public health officials.
“Justices of this court are not scientists,” Justice Kagan wrote. “Nor do we know much about public health policy. Yet today the court displaces the judgments of experts about how to respond to a raging pandemic.”
“The state is desperately trying to slow the spread of a deadly disease,” she wrote. “It has concluded, based on essentially undisputed epidemiological findings, that congregating together indoors poses a special threat of contagion. So it has devised regulations to curb attendance at those assemblies and — in the worst times — to force them outdoors.”
“In the worst public health crisis in a century,” Justice Kagan wrote, “this foray into armchair epidemiology cannot end well.”
The Roberts Court has yet to make any sweeping national rulings on COVID-19 restrictions on churches and definitely has the votes to do so if they wanted to, but for now they are settling on what their usual strategy is: begging for someone to send them a case where they can make a federal precedent, which is why Biden has been careful to restrict mask mandates to interstate transportation and why he hasn't made any capacity mandates at all for indoor gatherings in offices, even federal ones.
We're going to find out though that should a national ruling come down that keeps open all churches, that it's going to extend the pandemic by months or more.
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