A divided U.S. Supreme Court late on Friday denied a request for an injunction by a California church that argued the state’s pandemic reopening rules unconstitutionally put schools and businesses ahead of houses of worship.
The court ruled 5-4 to reject the request by South Bay United Pentecostal Church in Chula Vista, Calif., which argues that stay-at-home orders arbitrarily discriminate against places of worship in violation of the First Amendment’s free-exercise-of-religion clause. One member of the majority said decisions on reopening are best left to state officials, while a dissent said places of worship are being discriminated against on the basis of religion.
Under California Gov. Gavin Newsom’s four-stage reopening plan for the COVID-19 pandemic, schools were allowed to open under stage 2 if certain local conditions were met, while in-person religious services were classified in state 3. Current guidelines permit church attendance of up to 25 percent of building capacity or 100 people, whichever is lower.
“California has never explained why letting large numbers of people sit together indoors for eight hours at a factory or a school, but not for one hour worshipping, provides a real or substantial benefit to curbing the COVID-19 pandemic,” the church argued in papers filed with the Supreme Court.
The South Bay church said in its court papers that some schools in the San Diego area have opened under stage 2 of the state’s guidelines.
The church, as have some others around the country, was seeking relief from existing orders in time for May 31 services for the Christian holy day of Pentecost. That likely prompted the Supreme Court’s late-night decision on the church’s emergency application&mdas;the ruling was issued just before midnight on May 29. (Earlier in the evening, the court turned down a similar challenge from two Illinois churches to that state’s restrictions, with the court noting that Illinois had just issued new guidance on May 28.)
In South Bay United Pentecostal Church v. Newsom (Application 19A1044), Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan voted to deny the church’s request for relief. Roberts issued a written concurrence, only for himself, that emphasizes the gravity of the coronavirus pandemic.
“At this time, there is no known cure, no effective treatment, and no vaccine,” the chief jsutice said. “Because people may be infected but asymptomatic, they may unwittingly infect others. The [state’s] order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency.”
He said California’s restrictions on places of worship appear consistent with the free-exercise clause because the state has applied similar or more severe measures “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.”
The question of when particular restrictions should be lifted during the pandemic “is a dynamic and fact-intensive matter subject to reasonable disagreement,” Roberts said, but such decisions are best left “to the politically accountable officials of the states.”
Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett Kavanaugh said they would grant the church’s application for relief.
Kavanaugh, in a dissent signed by Thomas and Gorsuch (but not Alito), said the state’s reopening plan was discriminating against places of worship.
“The basic constitutional problem is that comparable secular businesses are not subject to a 25 percent occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries,” Kavanaugh said.
The court “has stated that discrimination against religion is odious to our Constitution,” he said, citing church-state cases including several involving public or private schools, such as Trinity Lutheran Church of Columbia, Inc. v. Comer; Good News Club v. Milford Central School; and Lamb’s Chapel v. Center Moriches Union Free School District.
“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,” Kavanaugh said. “California has not shown such a justification.”
Newsom, in a brief filed with the court, argued that California’s latest guidance cautions that, “even with distancing measures in place, convening in a congregational setting of multiple different households still carries a relatively higher risk for widespread transmission of the COVID-19 virus, and may result in increased rates of infection, hospitalization, and death, especially among more vulnerable populations.”
There is nothing in the state guidelines preventing the church from adding additional church services to serve all its congregants while still observing the rules, the state said.
A version of this news article first appeared in The School Law Blog.