Are houses of worship "comparable" to secular businesses like grocery stores, banks, and laundromats?

Chief Justice Roberts said no. Justice Kavanaugh said yes.

|The Volokh Conspiracy |

Early Saturday morning, the Supreme Court denied an application for injunctive relief in South Bay United Pentecostal Church v. Newsom. (Eugene blogged about it here). A California church challenged state guidelines that limited "attendance at places of worship to 25% of build-ing capacity or a maximum of 100 attendees."

The Court split 5-4. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application.

Chief Justice Roberts wrote a two-page opinion, concurring in the denial of the application. Justice Kavanaugh wrote a three-page opinion, dissenting from the denial of the application. He was joined by Justices Thomas and Gorsuch. Justice Alito, who would have granted the stay, did not join Justice Kavanuagh's dissent.

Roberts and Kavanaugh disagreed on a basic point: what types of businesses are "comparable" to houses of worship?

Roberts said houses of worship are "comparable" to other "secular gatherings" that are subject to restrictive guidelines. But houses of worship are "dissimilar" from "dissimilar" secular businesses.

Although California's guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Justice Kavanaugh reached the exact opposite conclusion. His opinion quoted length from the Sixth Circuit's decision in Roberts v. Neace. (I wrote about a related Sixth Circuit decision here–and I am fairly confident that Judge Sutton wrote both opinions.)

The Church has agreed to abide by the State's rules that apply to comparable secular businesses. That raises important questions: "Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?" Ibid. [Neace]

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot "assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings." [Neace]

Robert's concurrence may be read somewhat narrowly. The final paragraph of his decision highlights this appeal's unique posture:

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is "indisputably clear" that the Government's limitations are unconstitutional seems quite improbable.

In a run-of-the-mill case, Plaintiffs asserting a Free Exercise violation do not have to show an "indisputably clear" claim to relief. The standard is much more forgiving. I think Roberts is hinting at the fact that this case would come out differently on a petition for a writ of certiorari. Of course, these sort of emergency measures are unlikely to be appealed in the normal process. The Governor's closure order will probably be repealed in short order. Any possible claims for relief will be mooted. Perhaps a damages claims could keep the case alive, but I am not familiar with the specifics of the case.

I will draw three further conclusions about the Roberts concurrence in another post.

NEXT: Supreme Court (by 5-4 Vote) Rejects Free Exercise Clause Objection to California Occupancy Cap for Churches

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  1. Houses of worship are sui generis, both as a class, and within the class. That means systematic, fine-grained legal requirements to deal with them in an emergency are hopeless. Emergencies do not permit laborious case-by-case reflection which could not even be accomplished at leisure, without the emergency.

    Given that, with one exception, there really is not any role for a court to review executive or legislative actions during emergencies. With regard to houses of worship, the usual standard of strict scrutiny applied in courts would far too greatly burden powers which are indispensable to the political branches’ emergency response. The one exception, is that courts should retain power to review whether a declared emergency remains ongoing in fact. That is a sufficient safeguard.

    1. I wasn’t aware that the court had the ability to define when an “declared emergency” exists, and when it doesn’t.

      Seems rather arbitrary

      1. I don’t want courts to tell the executive when a pubic health emergency has begun. I also don’t want the executive to tell everyone it is never going to end, unless at lest someone else takes a hard look and agrees.

        As always, I am not trying to tell anyone what the law is. Not my field.

        1. I also don’t want the executive to tell everyone it is never going to end, unless at lest someone else takes a hard look…

          Seems like that someone else should be the legislative branch

    2. LOL NOPE

      There is a TON of roles for courts to review actions during emergencies.

  2. “[Neace]”? That is new to me, and casual Googling leaves me still in the dark.

  3. Kavanaugh jumped the shark by suggesting that houses of worship are analogous to cannabis dispensaries and bookstores. Nobody goes to either, sits in rows for an hour or more, only to periodically stand and sing with gusto. If he wants to overrule Smith, he should just say so, and try to muster five votes to bury Justice Scalia’s most significant religion clause decision.

    1. Kavanaugh jumped the shark by suggesting that houses of worship are analogous to cannabis dispensaries and bookstores.

      Correct.

      “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”

      The guy near you in the grocery store is not is not singing in your face. If the aisle looks crowded you can for it to clear out. You are not in the same place as others for a lengthy period of time.

      As to the deliverywoman, I don’t “interact” with her. She leaves the package on the porch and then I go out and get it.

      Kavanaugh’s point makes little sense.

      1. Kavanaugh’s point is bad, but I guess the argument is that you’re legally allowed to interact with the deliverywoman. But of course as you note, people don’t do that; every service in the universe now is specifically marketing contactless delivery.

  4. Houses of worship are not “comparable” to secular businesses like grocery stores, banks, and laundromats but they are comparable to lectures, concerts (in auditoriums), movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.

    It is quite easy to use an already existing legal classification system to demonstrate that.

    Building Codes for more that a century have recognized the latter group as “Places of Assembly” which present unique risks due to large numbers of people in close proximity, further they define those with “fixed seating” like the ones listed above or without fixed seating like night clubs, and other places where large numbers of people can move around freely. The initial list would generally be classified as “Mercantile” occupancies, which generally have a lower occupant load and density.

    All of this is well understood and I’m surprised no one has mentioned it.

    Using these existing definitions would seem to facilitate explanation and enforcement as building officials and fire marshals are familiar with the classification and it avoid even mentioning churches.

    1. True.

      These comparable places also have capacity limits, as I suppose church buildings do, for safety purposes.

      Why it’s so awful to adjust those limits in the face of a new risk is not clear to me.

      1. For Building Codes capacity limits are generally set with regard to emergency exiting capacity.

        However there is no reason that an emergency regulation could not limit the absolute maximum number of people allowed to some maximum number or some percentage of the maximum capacity and/or require special precautions, like distance between occupants or require the presence of people to specifically enforce the requirements. Some regulations I’ve heard of actually do that by limiting gatherings to at most 50 or 100 people or limiting occupancy to 25% of capacity.

        I am however very concerned that some of the “emergency” regulation will remain after the emergency has passed.

        1. capacity limits are generally set with regard to emergency exiting capacity.

          Sure. But that doesn’t mean they can’t be revised based on other risks.

          My point is that, speaking broadly, the limits are imposed in the interests of the safety of the occupants. So new risks justify re-examining the limits.

  5. I think that what churches are like and not like, what risks are similar and what are dissimilar, probably depends on specific facts that will likely require experts to help elucidate. I don’t think ordinary people, even ordinary judges, know for sure what the risks are based on their own personal experience. Here, as is often the case, the fact that we have strong opinions and feelings that make us feel subjectively certain doesn’t mean we really know.

    For this reason, while the churches may ultimately win on the merits when the facts are in, I think Chief Justice Roberts is probably right that the state gets some leeway in an emergency at the preliminary stages of the proceeding.

    1. And as Chief Justice Roberts notes, an important limit on that leeway is that the period of the restrictions has to be limited.

      1. ReaderY….So what tells the Court that the limit was reached, and the restrictions must end? Is there an actual bright line?

        I understand the decision, but struggle to reconcile how synagogue gatherings are different than airplanes and mass transit (both are packed tight with people in an enclosed space).

        1. I thought air travel and mass transit were considered essential services, while religious services were not.

    2. Regardless of what churches are like or unlike, if you have to mention churches in your rules, your rules aren’t objective.

      1. That’s true, for a definition of words that isn’t English.

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