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

Chief Justice Roberts said no. Justice Kavanaugh said yes.

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.