The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
SCOTUS Decides South Bay v. Newsom II, Enjoins Complete Prohibition on Indoor Worship Services
The Court is badly fractured, as Justice Barrett writes her first separate writing.
Around 10:45 PM ET on Friday evening, the Supreme Court decided South Bay United Pentecostal Church v. Newsom II. (I blogged about the briefing earlier this week). Here is the bottom line: six Justices enjoined California's complete prohibition on indoor worship in so-called Tier 1 zones. Beyond that, the conservatives splintered sharply.
Unsigned Per Curiam Opinion
Let's start with the unsigned per curiam opinion. First, the Court blocked Governor Newsom from prohibiting indoor worship by the Applicants:
Respondents are enjoined from enforcing the Blueprint's Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari.
In theory at least, Newsom could continue to enforce the regulations as to other houses of worship. The Supreme Court's injunction is not universal. But as a practical matter, Newsom would be sued by other churches, and he could not rely on qualified immunity. Therefore, for practical purposes, he will have to stop enforcing the ban on indoor worship statewide. Plus, Newsom is facing a recall, and has thrown #science to the wind to save his political skin. (More on the politics later).
Second, the Court allowed the church to limit attendance to 25%. The Court reached a similar ruling in Diocese of Brooklyn.
The application is denied with respect to the per-centage capacity limitations, and respondents are not en-joined from imposing a 25% capacity limitation on indoor worship services in Tier 1.
Currently, this issue is being litigated in New York. In short, Governor Cuomo has agreed that houses of worship should be subject to the same occupancy limits as other "essential' businesses. I am not sure what percentage other businesses in California can open up with.
Third, the Court allowed the state to ban "singing and chanting."
The application is denied with respect to the prohibition on singing and chanting during indoor services.
Fourth, the Court allowed the Church to present evidence that the percentage caps, and ban on signing and chanting are not generally applicable.
This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.
Justice Gorsuch's concurrence suggests these rule are not generally applicable. Given the district court judges that ruled on these injunctions before, I do not think these arguments will receive a warm welcome. Punt.
Fifth, the Court has teed up the COVID-19 endgame:
Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
As soon as the Court denies certiorari this injunction lifts. The Court can then hold onto the petition until the pandemic concludes, and let this case dissolve. For now, the parishioners of South Bay no longer have to weather the elements to pray. The courts should have entered this relief before Christmas. Once again, contrary to what Justice Breyer suggested, these cases take weeks and months, not "hours."
The Court issued a similar order in the companion case, Harvest Rock.
Now, let's break down the separate writings.
Justices Thomas, Gorsuch, and Alito
Justices Thomas and Gorsuch would have granted "the application in full." In other words, they would have enjoined the percentage caps, and the ban on singing and chanting indoors.
Justice Alito took a more measured approach:
JUSTICE ALITO would grant the application with respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting. JUSTICE ALITO would have the stay lift in 30 days unless the State demonstrates clearly that nothing short of those measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.
Here, Justice Alito would immediately enjoin complete prohibition on indoor worship. He would give the state 30 days to prove that the percentage caps and ban on singing are absolutely essential to prevent community spread. If the state cannot meed that burden, then in 30 days, the stay will lift. Critically, the state has the burden. The majority per curiam opinion suggests the burden belongs to the churches.
Justice Gorsuch wrote a six-page statement, joined by Justices Thomas and Alito. But Chief Justice Roberts, and Justices Kavanaugh and Barrett did not join this statement.
First, Justice Gorsuch said this case was not "difficult."
Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law re-flects " 'subtle departures from neutrality,' " " 'religious ger-rymander[ing],' " or "impermissible targeting" of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534–535 (1993). But not here. . . .
When a State so obviously targets religion for differential treatment, our job becomes that much clearer.
In the past, I have criticized Gorsuch for saying that tough cases are "simple." He really should avoid this over-confidence. I agree South Bay should prevail, but this case does present really weighty issues on both sides.
Second, he favorably cites Becket's amicus brief, which explained that California's indoor ban was unprecedented:
Apparently, Califor-nia is the only State in the country that has gone so far as to ban all indoor religious services. See Brief for Becket Fund for Religious Liberty as Amicus Curiae, 5–6.
Third, Gorsuch finds that California's directives must be reviewed with strict scrutiny. Here, absolute deference is not warranted.
It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests. Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government's assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard.
Fourth, Gorsuch explains that California cannot "thread the needle." It's directives are not narrowly tailored:
Nor has California sought to explain why it cannot address its legitimate concerns with rules short of a total ban. Each of the State's shortcomings are telltale signs this Court has long used to identify laws that fail strict scrutiny.
For example, why can't California limit the number of people who can gather at once?
Nor does California explain why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses
Fifth, Gorsuch addresses what I think is California's most arrogant defense: people can pray outside.
Next, the State tells us that worshippers are sure to seek close physical interactions. It touts its mild climate, too, suggesting that worshippers might enjoy more space out-doors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks. And California allows people to sit in relatively close proximity inside buses too. Nor, again, does California explain why the nar-rower options it thinks adequate in many secular settings—such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here. Es-pecially when those measures are in routine use in religious services across the country today.
On Christmas, the temperature in the Bay Area was in the high-40s with rain and 25 mph wind gusts. No, that weather was not "mild."
Sixth, Justice Gorsuch explains this disparate treatment runs afoul of Roman Catholic Diocese:
. . . California singles out religion for worse treatment than many secular activities. At the same time, the State fails to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interests. Recently, this Court made it abundantly clear that edicts like California's fail strict scrutiny and violate the Constitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, ante, at ___ (per cu-riam).
Seventh, Justice Gorsuch faults the lower courts who flouted Diocese of Brooklyn:
Today's order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.
Eighth, Justice Gorsuch writes that the ban on singing may not be generally applicable:
It seems California's powerful enter-tainment industry has won an exemption. FN2 So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.
FN2 . . . . But the record suggests that music, film, and television studios are permitted to sing indoors. . . . As the Court recognizes, though, nothing in today's order precludes future relief on this claim either.
Moreover, Gorsuch adds, the state could allow a single leader to sing:
Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.
Finally, Justice Gorsuch addressed the game of whack-a-mole:
No doubt, California will argue on remand, as it has be-fore, that its prohibitions are merely temporary because vaccinations are underway. But the State's "temporary" ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new bench-marks that always seem to put restoration of liberty just around the corner.
Whack-A-Mole.
His closing is strong:
But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California's churches, synagogues, and mosques, something has gone seriously awry.
Justices Barrett and Kavanaugh
Justice Barrett wrote her first separate writing on the Court: a concurrence joined by Justice Kavanaugh.
First, she seems to agree with Justice Gorsuch's analysis, except for his discussion of signing and chanting.
I agree with JUSTICE GORSUCH's statement, save its contention that the Court should enjoin California's prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record.
But she left open the possibility that the Church can make this showing in the future.
As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.
Do we take it that Justices Barrett and Kavanaugh agree with the other points Gorsuch made? This opinion left me wanting much, much more clarity. And I wonder what Justice Kavanaugh would have done if Barrett had joined the Gorsuch statement? Did Kavanaugh peel off after reading Barrett's concurrence?
Chief Justice Roberts
Chief Justice Roberts wrote a two-paragraph concurring opinion, in which he repeats his position from South Bay I.
As I explained the last time the Court considered this evolving case, federal courts owe significant deference to politically accountable officials with the "background, compe-tence, and expertise to assess public health." South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2).
Roberts saw no basis to enjoin the ban on singing:
The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework.
But he rejects the absolute prohibition on indoor worship:
At the same time, the State's present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.
And what are those "interests at stake"? Of course, Roberts will not tell us. He won't even mention the Free Exercise Clause. So, of course, lower courts will now adopt a new cockamamie test from the Chief: does the government's policy "reflect . . . expertise or discretion" or does it reflect "insufficient appreciation or consideration of the interests at stake"? Forget strict scrutiny. We are left with incoherent scrutiny. South Bay II is the new South Bay I. Roberts must know what he is doing with these meaningless tests. He simply can't vote with a clean conscience to close all indoor houses of worship. And he is content to have lower courts blindly cite him, without any clue what he means. Well done, Mr. Chief Justice.
Roberts repeat his usual pablum about deference and life tenured judge. You know the rest.
I adhere to the view that the "Constitution principally en-trusts the safety and the health of the people to the politi-cally accountable officials of the States." Ibid. (internal quotation marks and alteration omitted). But the Consti-tution also entrusts the protection of the people's rights to the Judiciary—not despite judges being shielded by life ten-ure, see post, at 6 (KAGAN, J., dissenting), but because they are. Deference, though broad, has its limits.
Summary of the Majority
Here is a brief summary of the majority votes. Six Justices immediately enjoined the ban on indoor worship. We know all six Justices agreed, because they told us so: Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett. Two justices (Thomas and Gorsuch) would have also immediately enjoined the percentage caps and ban on singing. One justice (Alito) would have enjoined the ban on singing, and put the burden on the state to defend the percentage caps. (Update: I previously wrote that Alito would not immediately enjoin the singing ban). Three justices (Roberts, Kavanaugh, and Barrett) would have put the burden on the church to introduce evidence showing that the percentage caps and ban on singing art not generally applicable. Huh? Let's repeat the fourth element from the per curiam opinion:
This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.
This statement is not part of the Court's order. It is merely an observation of what could happen.
Justices Kagan, Breyer, and Sotomayor
Justice Kagan wrote a five-page dissent, which was joined by Justices Breyer and Sotomayor. She begins with the same refrain from Diocese: the Justices are not scientists, and religious worship is treated more favorably than secular activities
Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court dis-places the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the State's policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court's injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.
Alas, Justice Kagan accepts the "mild climate" ruse.
Given California's mild climate, that restriction—the one the Court today lifts for houses of worship alone—does not amount to a ban on the activity. Worship services, along with other gatherings, have taken place outdoors throughout this winter.
Justice Kagan includes no citation here. I doubt one exists. For the old and infirm, worshipping in a freezing, gusty rain is not an option. I am disappointed Justice Kagan indulged this line of argument. She should have ignored the weather issue altogether, like the lower court judges did. But she couldn't. She felt compelled to address the evidence before her. And she struck out.
Next, in a footnote, Justice Kagan explains why this case is different from Diocese of Brooklyn. My general rule of thumb is that substantive footnotes like these were added later in the drafting process. Perhaps Justice Breyer suggested it?
For much this reason, the Court's decision in Roman Catholic Diocese of Brooklyn v. Cuomo, ante, p. ___ (per curiam), does not require today's injunction. There, the Court found that New York had "single[d] out houses of worship for especially harsh treatment." Ante, at 3. But here, according to the epidemiological evidence in the record, California has treated houses of worship identically to other facilities with the same risk. It is the Court, not the State, that "single[s] out" religious activity— separating it from other equally risky public gatherings. What is more, Roman Catholic Diocese held, at a time when New York was lifting re-strictions to reflect declining case rates, that the policy at issue was "far more severe than has been shown to be required to prevent the spread of the virus." Ante, at 4. No court—or, at any rate, no court with any sense of modesty—can make that claim here. California's hospitals are near maximum capacity, and over 3,500 state residents perished from the vi-rus just last week.
Not quite. California has been lifting restrictions for the past few weeks--largely because Governor Newsom has recognized that his policies are no longer politically palatable, and he faces a recall election. Indeed, I thought this case would be mooted out because of the lifting of the order.
EK closes with a sharp note:
I fervently hope that the Court's intervention will not worsen the Nation's COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life ten-ure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State's pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.
In other news, Governor Cuomo of New York has articulated what is actually motivating COVID policies.
"When I say 'experts' in air quotes, it sounds like I'm saying I don't really trust the experts," Mr. Cuomo said at a news conference on Friday, referring to scientific expertise at all levels of government during the pandemic. "Because I don't. Because I don't."
Politics. All politicians are motivated by politics. And they find experts who submit declarations that support their views. No other state in the union has decided to shut down all indoor worship. None. I look forward to the day when these state health officials will sit for depositions, and explain the real reason why houses of worship were not deemed "essential."
