The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On December 3, hours after the Court GVR'd Harvest Rock, the Governor of California implemented a new framework that would permit the complete prohibition on indoor worship. Harvest Rock moved for emergency relief in the District Court. The Court declined to rule right away. In the interim, Harvest Rock Church asked the Supreme Court to intervene, but that relief was not granted. I've been told that there is apparently an unwritten rule: following a GVR, the Court will not rule on a motion till the lower court had a chance to decide.
On December 21, the District Court upheld the Governor's order. Judge Bernal's opinion offers a very, very strained reading of Diocese, and still follows Chief Justice Roberts's comparator approach from South Bay.
First, the Court finds a way to distinguish California's order from those set aside in New York and Nevada:
The Blueprint offers something the New York and Nevada Orders did not: the ability to legally congregate in unlimited numbers for worship—so long as that worship occurs outside.
I don't find Judge Bernal's distinction persuasive because of one important factor: the elements. What happens if it is cold outside? Or raining? Or snowing? Are people really expected to huddle in the elements so they can worship in large numbers? What about the need to use various religious texts that would get wet outside? Or the use of instruments? Or anything else that would be impossible in the elements? When the weather outside is frightful, California's policy amounts to a complete prohibition on worship–indoors or outdoors. And what about noise? Can people worship in peace and contemplation with cars driving down the street? Or people walking through their procession? What if a church does not even have a place to worship outside? Can a person offer a private confession in a park? With people walking their dog nearby? This fine distinction is very disappointing, and it will not stand up on appeal.
Judge Bernal's second error is legal: he misread Diocese.
In so doing, the Blueprint treats religious activity better than comparable secular activity and even better than essential services.
Chief Justice Roberts's South Bay concurrence looked at "comparable secular activity." Diocese eliminated that requirement. Now, the religious activity must be compared to any secular activity, whether comparable or not. I explained this important shift last month:
In South Bay, Roberts compared the house of worship 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." They key word is "comparable." The per curiam opinion does not require that the house of worship be "comparable" to other secular businesses. Are houses of worship comparable to "factories and schools"? Not really. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.
Third, Judge Bernal found that "challengers in Catholic Diocese were also entitled to strict scrutiny because of the strong showing that New York's restrictions impermissibly discriminated against religious communities." I wish this statement were true, but it is not. As a threshold matter, Governor Cuomo's statements were not directed "against religious communities." The statements were directed at Jewish people. Judge Bernal's generic reference to "challengers" obscures this distinction. Next, the Court did not rely on those statements. Strict scrutiny was warranted because of the policy's non-neutrality. Again, Judge Bernal strained mightily to distinguish a Supreme Court precedent. He failed.
Fourth, the court found that the complete prohibition on indoor worship survives strict scrutiny. Why? The last, best hope of all constitutional arguments: the Constitution is not a suicide pact.
The First Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms. They just may not do so in ways that significantly increase the likelihood of transmission of a virus which has claimed more than three hundred thousand American lives in less than one year. The Constitution is not a suicide pact. The First Amendment may not be used to make it one.
Come on. Dozens of states permit indoor worship. And houses of worship follow rigorous protocols. They prohibit singing and chanting. They time their exit and entry to prohibit crowding. Judges are wedded to this March 2020 stereotype where people chant and scream at the top of their lungs for hours on end. This narrative is simply false. Please, get on with the times.
Judge Bernal flouted Diocese, as well as the Ninth Circuit's Calvary Chapel decision and is daring the Supreme Court to overrule him. The Court should use this case to clarify a somewhat unclear issue from Diocese: why exactly was New York's policy not neutral?
Update: Calvary Chapel has already filed a motion for an injunction pending appeal with the Ninth Circuit.
In other news, another District Court upheld California's order in South Bay. The church has filed a motion for an injunction pending appeal with the Ninth Circuit. I will try to write about that case later.