The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On May 29, 2020, the Supreme Court decided South Bay United Pentecostal Church v. Newsom. A majority of the Court declined to enjoin California's stay-at-home orders. Chief Justice Roberts wrote a concurring opinion that explained his view of the case. Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Gorusch. I wrote about that case here, here, here, and here.
Chief Justice Roberts concluded that houses of worship were "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.
I criticized this "comparator" approach:
First, the Court approached that case with the wrong frame. It is a mistake to simply assess how "comparable" businesses are treated…. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring. . . . This double-standard demonstrates hostility towards religion, at a far greater level than the errant comments in Masterpiece Cakeshop. The Free Exercise of religion simply isn't as important to these governors and mayors. And that fact ought to move the case from Smith's rational basis test to Lukumi's strict scrutiny.
Some of Roberts's comparators may be accurate. But there are other facilities that are very similar to houses of worship that are treated differently. At bottom, California did not think religion was "as important" as the exempted businesses.
This double-standard became patently obvious in the wake of recent protests. Officials like NYC Mayor DeBlasio expressly stated that the protests were far more important than prayer. This reasoning was implicit in Chief Justice Roberts's decision. Now, Judge Frank Easterbrook has stated it expressly.
On Tuesday, the Seventh Circuit decided Elim Romanian Pentecostal Church v. Prizker. (This case, which was previously appealed to the Supreme Court was quietly mooted out.) Judge Easterbrook wrote the majority opinion.
First, Easterbrook adopts Roberts's comparator approach:
So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons. Plaintiffs point us to two opinions of the Sixth Circuit plus two opinions dissenting from orders denying injunctions pending appeal. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); South Bay United Pentecostal Church v. Newsom, 2020 U.S. App. LEXIS 16464 (9th Cir. May 22, 2020) (Collins, J., dissenting); South Bay United Pentecostal Church v. Newsom, No. 19A1044 (U.S. May 29, 2020) (Kavanaugh, J., joined by Thomas & Gorsuch, JJ., dissenting). Illinois relies on the majorities in South Bay United Pentecostal Church: the Ninth Circuit's panel did not provide much analysis when denying the motion for an injunction, nor did a majority of the Supreme Court, but Chief Justice Roberts filed a concurring opinion with these observations . . .
We line up with Chief Justice Roberts. It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.
Second, Easterbrook considers the church's alternate argument: houses of worship are similar to certain kinds of workplaces that are exempt. (Roberts simply ignored this backup argument):
The churches reply that people do remain together for extended periods in warehouses, and potentially in office settings (though most offices contain spaces that provide social distancing). It is not clear to us that warehouse workers engage in the sort of speech or singing that elevates the risk of transmitting the virus, or that they remain close to one another for extended periods, but some workplaces present both risks. Meatpacking plants and nursing homes come to mind, and they have been centers of COVID-19 outbreaks.
Easterbrook responds to this argument candidly:
But it is hard to see how food production, care for the elderly, or the distribution of vital goods through warehouses could be halted.
In short, producing food, caring for the elderly, and deliveries are more important than religious worship. The next paragraph states, with brutal honesty, why progressive governors have no problem with restricting religious services:
Reducing the rate of transmission would not be much use if people starved or could not get medicine. That's also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.
"Churches can feed the spirit in other ways." What hubris! Houses of worship have been feeding the spirit long before the ink on our Constitution dried. For sure, some houses of worship have moved onto Zoom, some with alacrity, others with regret. But Easterbrook should not pretend for a moment these virtual services are sufficient to "feed the spirit."
I think Judge Easterbrook was responding to Judge Sutton, who reached the precise opposite conclusion:
The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.
Religious worship is soul-sustaining. I am certain that Governor Pritzker, other Governors, and even some people of faith, would quietly agree with Easterbrook. DeBlasio stated it expressly. A pending case in New York state raises similar issues.
Recently, the Department of Justice filed a statement of interest in a challenge to Washington's shutdown orders. They articulated my position with clarity:
Because the COVID-19 Requirements are not generally applicable, strict scrutiny applies, and the Court need not reach the issue of whether they are neutral toward religion. The United States notes, however, that "[n]eutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied." Church of the Lukumi Babalu Aye, 508 U.S. at 531. The value judgment inherent in providing exemptions for secular activities like dine-in restaurants or taverns, which would seem to implicate the State's public health interests to a similar, if not greater degree, while not providing exemptions for Plaintiff's religious activities, tends to indicate that the State's actions may not be religion-neutral. See Fraternal Order of Police v. Newark, 170 F.3d 359, 365 (3rd Cir. 1999) (Alito, J.) ("[I]n Smith and Lukumi, it is clear . . . the Court's concern was the prospect of the government's deciding that secular motivations are more important than religious motivations"); id. at 366 (heightened scrutiny attaches when government "makes a value judgment in favor of secular motivations, but not religious motivations"). This is equally true for the value judgment inherent in approving protests without a numerical cap but requiring a cap for outdoor worship services. See ECF No. 13,7 (Washington Department of Health blog post entitled "Risking your health to fight racism (Thank you!)").
Governors are making "value judgments" about the importance of religious worship. They have deemed it unimportant. They have decided that "Churches can feed the spirit" over Zoom. We need Amazon Prime, but receiving communion and reciting the mourner's Kadish aren't essential.
Those "value judgements" are far worse than any of the errant statements made in Masterpiece Cakeshop. The comparison of houses of worship to other facilities has always been a red herring. Chief Justice Roberts will be forced to confront these arguments soon enough.
One final note on Judge Easterbrook. In Bostock, Justice Alito favorably cited Easterbrook's writings on textualism. But the Seventh Circuit stalwart voted in the Hively majority, and found that Title VII applied to sexual orientation and gender identity.