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SCOTUS Refuses to Stay Order Limiting Church Attendance in Response to COVID-19

In South Bay United Pentecostal Church v. Newsom , 590 U. S. ____ (2020), a divided U.S. Supreme Court refused to stay, pending appeal, an executive order by California Gov. Gavin Newsom that limits attendance at places of worship to 25 percent of building capacity, or a maximum of 100 attendees, in an effort to curb the spread of COVID-19. The Court split 5-4, with Chief Justice John Roberts voting with the Court’s liberal justices to deny the injunction. He wrote a short, concurring opinion, while Justice Brett Kavanaugh wrote a dissenting opinion, which was joined by Justices Clarence Thomas and Neil Gorsuch

Facts of the Case

On May 11, 2020, South Bay United Pentecostal Church (South Bay),  a religious community located near San Diego, California, filed a lawsuit challenging to the application of the State of California and County of San Diego’s COVID-19 stay-at-home orders to in-person religious services. South Bay and its Bishop, Arthur Hodges III (collectively, the plaintiffs) sought a temporary restraining order, asking the U.S. District Court for the Southern District of California to order state and county officials to move in-person worship services from Stage Three of the California’s Reopening Plan to Stage Two.

According to the plaintiffs, so long as they agreed to abide by certain physical-distancing measures, it would violate the Free Exercise Clause, Equal Protection Clause, and Due Process Clause to forbid the Church from hosting communal worship and ministry. While they agreed that the State has a “compelling interest in curbing pandemics,” they further argued that California had inadequately justified its decision to slate in-person worship services for reopening in Stage Three of the Roadmap, while permitting “manufacturing and retail” to reopen during Stage Two.

California opposed the requested restraining order, explaining that it had consistently assigned “all large public gatherings, including religious services” to Stage Three because large public gatherings pose a heightened risk of spread because attendees are “stationary in close quarters for extended periods of time” and “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.”

On May 15, 2020, the district court denied the plaintiffs’ motion for both a temporary restraining order (TRO) and an order to show cause (OSC) why a preliminary injunction allowing the church to hold in-person services should not issue. The Ninth Circuit Court of Appeals affirmed. The court concluded that the plaintiffs had failed to demonstrate a likelihood of success on the merits because, “[w]here state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment.” The Ninth Circuit also emphasized that “we’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.”

On May 23, 2020, the plaintiffs filed an emergency application for injunctive relief with Justice Elena Kagan. On May 25, 2020, the California Department of Public Health issued new guidance advising that places of worship could hold in-person services during Stage Two of the reopening so long as they adhered to certain restrictions, including “limit[ing] attendance to 25% of building capacity or a maximum of 100 attendees” and implementing “measures to ensure physical distancing.” On May 26, 2020, the plaintiffs filed a supplemental brief with Justice Kagan asking the Court to issue “an injunction permitting them to hold worship services this Pentecost Sunday” without adhering to the newly issued guidance—in particular, the “25% or 100-person cap.”

Roberts Concurrence

Chief Justice Roberts wrote a concurring opinion arguing in favor of denying the injunction. He began his opinion by noting: “The Governor of California’s Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine.”

The Chief Justice went on to conclude that “although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” He explained:

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.

Chief Justice Roberts also noted that “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” In such cases, the Court has held that public officials should be given wide latitude. “Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not ac- countable to the people,” Roberts wrote. “That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.”

Kavanaugh Dissent

Justice Kavanaugh wrote a dissent arguing that the Court should have granted the injunction because the restriction on worship was unconstitutional. “In my view, California’s discrimination against religious worship services contravenes the Constitution,” Justice Gorsuch wrote.

According to Gorsuch, “The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” He further argued:

What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”

While Gorsuch acknowledged that the State has substantial room to draw lines, especially in an emergency, he argued that “the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.”

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