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 never explained "why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses."
Gorsuch also notes that "California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods." While California argued that outdoor religious services were an adequate substitute given the state's mild climate, he says, it imposed no such requirement on salons or many other businesses. It never explained "why the narrower options it thinks adequate in many secular settings—such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here." Those measures, Gorsuch notes, "are in routine use in religious services across the country today."
Although California says allowing people to gather for extended periods of time in houses of worship poses an unacceptable risk, Gorsuch says, the state "does not limit its citizens to running in and out of other establishments; no one is barred from lingering in shopping malls, salons, or bus terminals." The state has not explained "why more narrowly tailored options, like a reasonable limit on the length of indoor religious gatherings, would fail to meet its concerns."
Gorsuch perceives a double standard even in the ban on singing and chanting, which does not apply to "California's powerful entertainment industry," a policy he likens to Nevada's special treatment of casinos. "Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield," Gorsuch writes. "Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in." If the COVID-19 testing used by the entertainment industry makes singing an acceptable risk, Gorsuch wonders, why couldn't a similar safeguard be employed for limited singing and chanting in houses of worship?
Barrett, in a statement joined by Kavanaugh, questions Gorsuch's suggestion that the singing ban should have been enjoined. "The applicants bore the burden of establishing their entitlement to relief from the singing ban," she writes. "In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue."
In a dissent joined by Breyer and Sotomayor, Kagan repeatedly quotes a statement that Roberts wrote at an earlier stage of the case, where the issue was a 25 percent occupancy cap. Roberts was rightly leery of second-guessing state officials' public health judgments, she suggests, and the same appropriate deference rules out an injunction against a complete ban on indoor services. "Justices of this Court are not scientists," she says. "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."
As Kagan sees it, California is "regulating worship services the same as other activities 'where large groups of people [come together] in close proximity for extended periods of time.'" The relevant comparison, she thinks, is not with the many businesses that enjoy more freedom under California's rules but with activities such as political rallies; "going to a lecture, movie, play, or concert"; and "frequenting a restaurant, winery, or bar." Tier 1 restrictions limit theaters, restaurants, and political gatherings to outdoor settings, for example. In Kagan's view, applying the same rule to churches, mosques, and synagogues does not discriminate against religion.
Kagan's take is questionable for the reasons outlined by Gorsuch, and it is inconsistent with the injunction that the Court issued in November against New York Gov. Andrew Cuomo's restrictions on religious activities. Those rules limited attendance at religious services to 10 people in "red" zones and 25 in "orange" zones. In other words, they fell short of the complete ban imposed by California, although the churches and synagogues that challenged Cuomo's policy argued that it was prohibitive in practice.
Five justices nevertheless concluded that an injunction against New York's limits was appropriate because the plaintiffs "have made a strong showing that the challenged restrictions violate 'the minimum requirement of neutrality' to religion." And while Roberts thought an injunction was no longer necessary because Cuomo had suddenly decided to loosen his restrictions, he conceded that "numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive," and "it may well be that such restrictions violate the Free Exercise Clause."
Whatever your view of these particular cases, the deference favored by Kagan, Breyer, and Sotomayor seems to leave little or no room for judicial review of COVID-19 restrictions. Elected state officials are making decisions based on "experts' scientific findings," Kagan says, and politically unaccountable judges with no such expertise have no business overriding those choices. She complains that "the Court will not let California fight COVID as it thinks appropriate."
Yet the empirical basis for California's COVID-19 policies is often dubious. California Health and Human Services Secretary Mark Ghaly admitted, for example, that the state's ban on outdoor dining at restaurants (which has since been lifted) was not based on any evidence that outdoor dining was especially dangerous. More generally, San Mateo County Health Officer Scott Morrow noted that the lockdown Gov. Gavin Newsom imposed on December 3 (which has since been replaced by the tier-based restrictions) was "rife with inexplicable inconsistencies of logic." Morrow worried that the burdens associated with that policy could not be justified by its public health payoff. "I'm not sure we know what we're doing," he said.
Kagan's position suggests that courts should "let California fight COVID as it thinks appropriate," even when public health experts question the scientific basis for its policies. Yet judicial review requires courts to weigh means against ends. Policies that impose special restrictions on religious activities, for example, are subject to strict scrutiny, meaning they must be narrowly tailored to advance a compelling government interest. Such analysis is meaningless if courts credulously accept a state's assertion that it has met the test.
In this case, Kagan thinks California is not actually discriminating against religion. Her argument suggests she might reach a different conclusion if the state allowed indoor activities in lecture halls, movie theaters, and restaurants while continuing to prohibit them in houses of worship. But that is by no means certain, given her view of the broad latitude that politicians like Newsom should have in matters of public health. When Nevada Gov. Steve Sisolak imposed a 50-person cap on religious services while allowing large groups to gather in close proximity for extended periods of time in casinos, bars, restaurants, gyms, arcades, and bowling alleys, Kagan joined the majority that denied a church's request for an injunction.
"Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner," Gorsuch writes. "As this crisis enters its second year—
and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it
ever could. Drafting narrowly tailored regulations can be difficult. But 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."