The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last weekend, the Supreme Court rejected a California church's application for a temporary injunction against enforcement of a state public-health order limiting attendance at houses of worship (South Bay United Pentecostal Church v. Newsom). The order, a response to the COVID-19 epidemic, restricts gatherings at houses of worship to 25% of building capacity or a maximum of 100 persons. The South Bay United Pentecostal Church in Chula Vista claimed that the order violates the Free Exercise Clause.
The Court decided the case in a matter of days, which shows that the Justices can really get their act together when necessary. The vote was 5-4, with Chief Justice Roberts joining the progressive wing of the Court in denying the church's application. There is no opinion for the Court, but the Chief wrote a short concurrence that probably reflects the views of the majority. Justice Kavanaugh filed a dissent for himself, Justice Thomas, and Justice Gorsuch.
One shouldn't make too much of quick decisions on interlocutory motions. The combined opinions in South Bay United Pentecostal Church are only six pages long. Still, a couple of things stand out. First, the essential difference between the Chief and Justice Kavanaugh is this: the Chief was willing to defer to California's judgment on what sort of gatherings pose "comparable" public-health risks and Justice Kavanaugh was not. Under Employment Division v. Smith (1990)—a case neither the Chief nor Justice Kavanaugh thought necessary to cite—a state does not violate the Free Exercise Clause where it enacts a neutral and generally applicable law that incidentally burdens the practice of religion. If a state targets religion for disfavored treatment, by contrast, a balancing test applies. In that situation, the state must show that it has a compelling interest that outweighs the burden imposed on religion, and that it has chosen the least-restrictive means of achieving that interest.
He didn't use the phrase, but Chief Justice Roberts concluded that California's order was neutral and general, applying equally to worship services and "comparable secular gatherings." In addition to churches, the restrictions applied to "lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." True, California had treated other activities more leniently, including "grocery stores, banks, and laundromats." But these activities were "dissimilar" to worship services, in that they did not allow people "to congregate in large groups [or] remain in close proximity for extended periods." Particularly in a public-health emergency, he wrote, judges should not second-guess the determinations of politically accountable officials.
By contrast, Justice Kavanaugh believed that the California order did discriminate against religion by treating "comparable secular businesses" more leniently. For Justice Kavanaugh, the relevant basis for comparison was not the nature of the activity, but the ability of participants to follow rules about social distancing and hygiene. The church was willing to abide by the same rules as grocery stores and the like, he noted. So why had the state decided to restrict the church but not the others? Unlike the Chief, Justice Kavanaugh did not give state authorities the benefit of the doubt. The authorities had "substantial room to draw lines, especially in an emergency," he conceded. But California had gone too far.
For both the Chief and Justice Kanavaugh, then, the case came down to judgments about which activities are "comparable" and about how much deference to give elected officials during a public-health emergency. For what it's worth, I think the Chief had the better of the argument. But the point I'd like to focus on is this: both the Chief and Justice Kavanaugh made these judgments quickly on the basis of broad principles and common-sense assumptions. I have already noted how neither of them even referred to Smith, the controlling case in this area. No doubt, the need to decide this interlocutory application speedily precluded a more thorough legal analysis. But these opinions make one wonder whether the doctrinal superstructure of free exercise clause jurisprudence, which students, professors, and lawyers pore over with great care, has all that much importance, in the end. Perhaps free exercise cases always come down to quick, intuitive judgments—however judges explain their decisions after the fact.