Quick Thoughts on the California Church-Closure Case

How much work does doctrine do?


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.

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  1. I’m not going to give the Gang of Four points for using common sense, that’s not what’s going on here. But I agree that court decisions that are rational and easy to apply in other circumstances are greatly preferred to decisions that entirely result from some doctrinal superstructure that denies justice to those without bargaining power.

    1. My interpretation of your comment is that doctrinal superstructures are ok so long as they do not “den[y] justice” to a specific set of people “without bargaining power”. Do you have a case in mind where a doctrinal superstructure was invoked to deny justice to a group of people with no bargaining power? What do you mean by “justice” and “bargaining power”?

  2. I am not so certain that CJ Roberts had the better argumaent. How does he distinguish between churches/synagogues and mass transit or airplanes? Enclosed spaces for prolonged periods of time with plenty of exhalation.

    1. He wasn’t asked to decide that. The structure he used is a difference common in Building Codes, Fire Codes and Zoning Ordinances.

      Perhaps if a case were brought regarding airplanes ( which have highly circulated air and HEPA filters) or buses the answer would be different. But buses and airplanes are more like each other than they are like churches or supermarkets.

      1. Buses have HEPA filters?
        None of the ones I ever drove did…

        1. No all modern airliners do.

    2. Are airplanes governed by state law? Casinos was the big one I’ve seen, but I think they’re governed by Indian law in California. Perhaps an argument could be made for buses as the closest (I’ve also heard an argument for laundromats since people don’t typically leave their clothes there), but I think it would have to be fleshed out more. Obviously, the number of people infection can spread to on a bus is relatively small. I would guess that the average time spent in a bus is smaller as well.

      1. Who said bus? I said mass transit. Think: NYC subway. Not unusual to ride 45-60 minutes in a subway. Large crowds. Close together. Enclosed space for a lengthy period of time.

        You tell me….which is the higher risk. Tell you what, I’ve done the NYC commute. My synagogue is a hell of a lot safer (not including High Holidays).

        1. Yeah, but there’s another thing going on here which the Court dare not say but which is nonetheless true.

          Which is, despite all the things said by religious groups, in person religious services really aren’t essential in the way that subway service is.

          The reason courts dare not say that is because they have boxed themselves into a corner on regulating sincerity claims or the content of religious beliefs. But seriously, many, many believers go without in person group religious services for periods of time. Soldiers in combat, maximum security prison inmates, astronauts, and just people who don’t have the time to go to church due to their secular obligations. Few religious people truly believe that God is going to punish anyone just because they aren’t attending an in person group religious service periodically.

          There’s a huge amount of special pleading going on here, special pleading that I will concede is perhaps countenanced by the First Amendment’s religious clauses, but special pleading nonetheless. As a matter of public policy, a church isn’t much different than a yoga studio and has no relationship whatsoever to basic transportation infrastructure, the food service industry, or other truly essential matters.

          1. The reason courts dare not say that is because they have boxed themselves into a corner on regulating sincerity claims or the content of religious beliefs. — I don’t know enough about this to say one way or the other. But would love to hear/read more.

            Not so sure I agree with the last point, though. I think that is the nub of the issue.

          2. “Which is, despite all the things said by religious groups, in person religious services really aren’t essential in the way that subway service is.”

            Really? At least 70% of the US population lives without any subway service within 10 miles of their home. I’d argue less than 10% of the US population uses a subway at least once a week. That doesn’t seem very essential at all.

            On the other hand, religious services are so essential, they were literally the first thing the states added onto the Constitution. You know what’s helpful about them? It’s a social gathering of people that teaches community, peace and charity, while providing an emotional and spiritual outlook for the stress of every day life.

            Turns out if you decide to shut down the economy, lay off more than 15% of the population, and lockdown a bunch of the little things that make life worth living, having a support organization like religion would be really useful. Turns out, if its NOT available, people emotions and stress might just bottle up, until a spark hits, then they go a little crazy…

            1. On the other hand, religious services are so essential, they were literally the first thing the states added onto the Constitution.

              That isn’t because they are essential.

              Pornography is protected by the First Amendment too. Is it essential?

              We protect religion because of various notions of a pluralistic society, NOT because it is essential. Indeed, if everyone in the country converted to atheism tomorrow, it probably wouldn’t harm the country or its people one bit.

              I agree that, as I said, the Constitution allows for some special pleading on behalf of religion. But we should recognize it for the special pleading that it is.

              In terms of actually being essential, as I said, gathering in one place for religious services is no more essential than doing so for yoga or transcendental meditation or a swinger’s party or any number of other things. It’s not anything like basic public transportation.

              1. This is because religion is essential. Nearly every major society throughout history has had religion. Those rare cases where religion has attempted to be eliminated typically result in the fall of the society (IE, the USSR). Religion plays a crucial role in the spiritual and mental well being of the population.

                Pornography, by contrast, is a very small subsection of free speech, and has numerous limitations on it. It notably was not referred to by name in the Bill of Rights, and was more of an after thought that got thrown in with the First Amendment.

                We protect religion for a variety of reasons, including its importance to society at large. Gathering in one place for it has been a critical aspect of it, across multiple different types of religions across several centuries of history.

                “Public Transportation” (a larger category than just “subways”) is not essential. The United States existed without any real public transportation and did fine. It has advantages, but is not essential or required. Many people rarely take public transportation, and some never do.

                1. This is because religion is essential. Nearly every major society throughout history has had religion.

                  Nearly every society in history has had pornography, and nearly every society in history has had superstitions.

                  That doesn’t make it essential.

                  It notably was not referred to by name in the Bill of Rights

                  So what? The Ninth Amendment makes crystal clear that enumeration isn’t the end-all and be-all of whether something is a right.

                  “Public Transportation” (a larger category than just “subways”) is not essential. The United States existed without any real public transportation and did fine.

                  Not big cities. Back in the day, it might have been hackney carriages, but there were always forms of public transportation.

                  At any rate, “essential” includes the concept of “not tied to a 18th Century economy”.

                  1. 1. When every successful society seems to have it, and those that get rid of it seem to fail, that’s a sign that it’s “essential”.

                    2. A hackney carriage is not “public transportation”. It is a private rental.

                    1. Every successful society was based around farming until it wasn’t. The notion Afghanistan would be worse without religion is absurd. Obviously human nature has a tendency to create a religion like it creates a spoken language.

                    2. Farming is essential to every successful society.

                      And it still is….

                    3. Today we have millions FEWER farmers than we had in 1900. If I informed Thomas Jefferson of this fact he would probably believe we ended up a failed state.

    3. How does he distinguish between churches/synagogues and mass transit or airplanes?

      California distinguished them as only the latter being essential (even though they likely both have a high risk), and the plaintiffs did not challenge that distinction. Had they done so, we would probably be back to the same gut-feel analysis and how much deference do you give the state?

      1. Josh R, I think I would feel differently about all of this if there was a date certain that an Executive Order like this (public health emergency) would be reviewed and then renewed (or rejected) by the Legislature. Right now, we have a situation where these Executive Orders are just open-ended, no objective criteria, no date certain for review or termination. That is not workable, nor should it be.

        The Legislature should put a brake on Executive power, and say: Hey, after 30 days, we the Legislature will review and then decide to renew it. Right now, Legislatures are standing on the sidelines when they should be representing our interests. That is a problem.

        They never did raise the issue you wrote about a week ago….why weren’t Churches/synagogues classified for phase 2 instead of phase 3? That was a great question that went unanswered (this time).

        1. California addressed why religious services belong in Phase 3 in their brief in this case

          the State had consistently assigned “all large public gatherings, including religious services” to Stage Three. E.R. 87. In the view of state public-health officials, large public gatherings pose a heightened risk of spread because attendees are “stationary in close quarters for extended periods of time.” Id. Moreover, at religious services, “congregants are often speaking aloud and singing, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.”

          1. Hey, thanks for passing that section along!

            Interesting how mass transit was left out of that mix. I mean, the physical characteristics are virtually the same. Let’s see if I can re-state that section to make my point.

            <Riding mass transit poses a heightened risk of spread because riders are “stationary in close quarters for extended periods of time.” Id. Moreover, on mass transit, “riders are often speaking aloud and laughing on their phone, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.”

            Hard for me to see the difference here. BUT, it is a close call.

            I just wish there was a bright line. I miss praying in a minyan is shul.

            1. Mass transit is in Phase 1 because it was deemed an essential activity, and essential activities were permitted regardless of the risk (while keeping them as safe as possible).

  3. So you can prey but not pray — it’s OK to protest but not worship.
    Amazing how credible threats of violence shape public policy.

    1. Babylon Bee has something to say about that…

    2. Many religions would take issue that a building is required to worship.

      (and no one has taken away anyone’s right to worship)

      1. Unless you think congregating in a particular place at a particular time with particular people is necessary for at least a subset of your worship, which applies to a fair number of people.

      2. And half the time religious stuff comes up here, they point out the decision that the government cannot second-guess the validity of religious beliefs, even if logically in contradiction to the relevant religion’s official doctrine.

  4. Roberts giving so much deference to government officials show what a hack he is. Those officials have been wrong on pretty much everything they’ve said and done and almost every one of them has allowed their cronies exceptions to the rules they claim are important for everyone to follow.

    1. Enjoy your final six months of judicial activism, clingers.

      1. Yes, we will especially enjoy putting two more circuit court judges on the bench, and roughly 60-70 more district court judges as well.

        1. Wait a sec! I thought in a presidential election year, the Senate was supposed to wait and give the people their say.

          1. Nothing vacant on SCOTUS, is there?

  5. “But he answered and said, It is written, Man shall not live by bread alone, but by every word that proceedeth out of the mouth of God.
    – Matthew 4:4”

    I don’t think CJ Roberts had the better part of that argument.

    1. It turns out the US is not a theocracy, so the relevant document to consult is the Constitution not the Bible.

      1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble,

        A two-for : Free exercise and peaceably assemble.

        1. Is that from Ephesians?

        2. Hmm, I wonder if the Chief Justice made reference to this first amendment thing in his concurrence? Oh, look, he did:

          “Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. ”

          He even goes on to explain why he thinks so (as summarized by Professor Movsesian). Maybe it would helpful to actually address that argument rather than assuming that the Chief Justice doesn’t have at least a passing familiarity with the text of the Constitution.

      2. Yeah, only a theocracy would allow people to attend church!

        1. If SCOTUS decided constitutional questions on the basis of Matthew 4:4, we would be in a theocracy.

  6. I agree that the haste with which this petition was processed make it unsuitable for precedential citation. I think that with further briefing and oral argument, the Chief Justice’s logic would whither.

    California allowed schools and laundromats to open in phase 2 with social distancing. Both of these directly correlate with large gatherings in single open spaces.

    BTW, not all churches gather in a single large room. There has been a trend among evangelicals for small groups-groups of 10 or less, families, etc. to pray and worship.

    As has been pointed out in other circuits, I guess church attenders can be trusted to socially distance themselves in schools and while they do laundry, but for some reason they can’t be trusted to socially distance themselves at church.

    1. Schools are more like the places Roberts cited, laundromats not so much. Both however tend to have smaller gatherings that a typical church service. I’ve never seen a laundromat with even a hundred people in it.

      1. Besides that, there are public health reasons for why we’d want people washing their clothes and sheets. I have yet to see a study demonstrating that prayer or congregating in a church frustrates the transmission of disease.

        1. I have yet to see a study demonstrating that prayer or congregating in a church frustrates the transmission of disease.

          What, STDs don’t count?

    2. “California allowed schools and laundromats to open in phase 2 with social distancing. Both of these directly correlate with large gatherings in single open spaces.”

      That’s not the relevant legal question; there is no “does this correlate (whatever the fuck you mean by that) with something else?” test. But even if it were, you’re not right about the correlation.

      Laundromats is an asinine comparison, so set that aside. Schools aren’t comparable, either, since there are overriding policy reasons why we would need schools open but not churches, and why schools represent less risk to the public generally. Children go to schools and are at virtually no risk of being killed by COVID. Old people go to church, and are at the highest risk of dying from COVID. Schools are open 5 days a week and help promote essential workers by freeing them up from childcare, to go do essential services. Churches aren’t like that.

    3. I tend to agree that schools look a lot more like churches than, e.g., grocery stores or banks. Having said that, I’m actually struggling to find information on what is and is not allowed in Phase 2. I see several news article saying that schools are allowed to reopen, but that doesn’t seem to be reflected on any of the official California sites, there doesn’t seem to be any evidence that schools actually have reopened and the only articles that talk about any plans to actually reopen schools put the date well into the future, e.g.: https://edsource.org/2020/gov-newsom-says-schools-could-reopen-as-soon-as-late-july-early-august/630408

      So while it might be hard to justify reopening schools but not churches, that doesn’t actually seem to be happening as far as I can tell.

  7. I agree with the Supreme Court’s actions, because limiting attendance at places of worship is a common good. It should not only be in certain churches, but all places of worship. Now is the right condition for worship at home and activities at home.

  8. SCOTUS made the right call. To rule otherwise would open the door to religious people demanding to be exempt from any health regulations that they don’t like. They already have an “employment law free zone”, don’t give them a “public health free zone”. To make such a sweeping change on quick and poorly developed case would have been a mistake.

    1. Like Hallal and Kosher butchers?

      1. It is my understanding and expectation that Kosher and Hallal do follow USDA guidelines are the plants are inspected.

        1. That is only partially correct. Hallal and Kosher have guidelines specifically written for them in the USDA code. They do not necessarily follow the general guidelines, but their own special guidelines.

          1. Anyone can lobby the government and they are free to have religious motives when lobbying civil authorities to implement civil regulations…it’s why December 25th is a federal holiday.

  9. It seems to me that Smith wouldn’t apply anyway as these regulations are do not “incidentally” burden the practice of religion. They are direct regulations imposed on the practicing of religion which prevents worshipers from engaging in other protected activity, speech and association.

    I’m not sure why a church would want to challenge this as keeping its congregates (who skew old) safe would seem to be a fairly important thing. But push comes to shove, it’s still their right to practice.

    1. “Incidentally” in Smith doesn’t mean “only a little bit.” It means that the purpose of the law wasn’t to burden religion.

      1. And when you have a specific regulation telling churches how they can congregate, the purpose of the law is to burden the religion. The reasons you want to burden them in this instance may no arise from animus, but the purpose of the rules are to burden.

        1. “And when you have a specific regulation telling churches how they can congregate…”

          That’s not what happened here. There is a Stage 3 that applies generally to “Higher Risk Workplaces” that includes in-person religious services, among others.

          1. My favorite regulation was when they said restaurants could serve food, but you couldn’t hand out communion at Mass…

            They reversed themselves real fast on that one.

            1. They goodness, because heaven forbid states make decisions without first clearing them with the American Ayatollahs.

              1. You really don’t see a problem there, do you?

      2. This isn’t an incidental burden, it’s specific. The regulation doesn’t say, “all buildings have to limit occupancy to 25% of capacity.” It says, in effect, “restaurant buildings must limit occupancy to 50%, church buildings have to limit occupancy to 25%.”

        1. We’ve seen this argument before that once Newsom explicitly mentioned churches, the order was not neutral. I don’t think that argument makes sense.

          If instead, Newsom listed a set of neutral characteristics that allow services to be placed in Phase 2 versus Phase 3, without applying those characteristics to religious services, it would be left to judges to apply the order to religious services. I find it unpersuasive that Free Exercise neutrality requires that judges, rather than the elected branches, apply neutral characteristics to religious services.

          1. The argument that doesn’t make sense isn’t the one being made here. It’s not that Newsom mentioned churches–it’s that he specifically applied different rules to them.

            If he said these are the characteristics for each type of restrictions and gave examples, including churches, I that would be neutral. But saying churches had a 25% limit, and no other businesses had that same limit, is clearly not neutral.

            I could be wrong about the facts, of course. If churches are just one type of business among many that face a 25% limit, then I’d agree the order is neutral. Do you know if that’s the case?

            1. I believe that all but one of the places with a greater-than 25% limit are in Phase 2. Churches were given preferential treatment over gyms, nail salons and movie theaters, all of which are in Phase 3 and remain closed. The one Phase 3 place that is not subject to the 25% limit is hair salons. Perhaps Newsom needs to explain that distinction, but I suspect he can. And as Roberts said,

              The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

              1. Thanks. As I’ve looked at this more, it does seem that the churches are not being singled out, but are subjected to requirements based on their services being “gatherings” which is non-specific. I certainly agree that laundromats and grocery stores don’t hold “gatherings” in the sense used here.

                So, I think the majority has the better argument. I also take Roberts’ comments about judicial activism to heart.

  10. The events of the last week have rendered this case moot.

    All that a church has to do is to declare itself a protest. Then all normal rules are suspended.

    1. Yeah, those protestors are being treated super well and hands off.

      1. As long as they don’t burn down their own church in protest, they should be fine.

        Fire set at historic St. John’s church during protests of George Floyd’s death


  11. I agree that both opinions answered the question about the comparability of church services with other activities based on general assumptions, intuition, and predispositions.

    I believe this was a mistake. A reasonable approach would have been to say we’re not certain of the facts and one side or the other gets the benefit of evidentiary presumption until a trial occurs and the facts come in. The justices might disagree on which side should get the benefit of the presumption, but at least that would be a genuinely legal question and not a resolution of an important fact dispute based on extra-judicial personal opinions.

    I am inclined to think that the state gets the benefit of the doubt in an emergency. This would lead to something close to Justice Roberts’ opinion, but minus the opinion on whether church services actually are comparable or not, leaving that and the ultimate outcome of the case for fact-based resolution.

    1. Sometimes, when the justices are highly split on the facts, this might be a signal that they don’t actually know them. Especially in an early-stage context like a preliminary injunction, this might be a signal that things are less obvious than they might appear and more caution is warranted.

      1. That’s kind of what Robert said.

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