The Supreme Court yesterday rejected a request from a church in California to block enforcement of state restrictions on attending religious services. Currently, the state limits attendance at places of worship to 25 percent of building capacity or a maximum of 100 attendees.
Chief Justice Roberts joined the four left-liberal Justices to form the majority in a 5-4 decision. Roberts wrote:
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.
He therefore concluded that the church could not meet the high bar he said exists when a party seeks an order enjoining a state from enforcing restrictions on gatherings.
In Roberts’s view, the 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” and one that, because the Constitution has primarily delegated it to politicians, courts should normally not second-guess. Roberts also noted that, even as the church is seeking emergency relief, “local officials are actively shaping their response to changing facts on the ground.” Under all of these circumstances, he concluded that the Court should not step in.
Justice Kavanaugh wrote a dissent, which Justices Gorsuch and Thomas joined. Kavanaugh argued that some businesses not subject to California’s restrictions are comparable to churches. He cited factories, malls, and hair salons, among others. California, he said, hasn’t shown a good reason for treating churches differently.
Kavanaugh stated:
The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” [Citation omitted]
California has ample options that would allow it to combat the spread of COVID–19 without discriminating against religion. The State could “insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities.” [Citation omitted] Or alternatively, the State could impose reasonable occupancy caps
across the board. But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.
Some observations:
1. I would have thought it was the government, not the church, that faces a high bar when it restricts the ability of citizens to engage in religious observance.
2. The Chief Justice is right, I assume, that church services carry a greater risk of the spread of the virus than exists at grocery stores, banks, and other in-an-out businesses. But, per Kavanaugh, malls and hair salons may be just as risky as church attendance, assuming good social distancing practices. And the Constitution doesn’t mention mall and hair salon rights. It does mention the right freely to exercise one’s religious beliefs.
3. California has already eased restrictions on church attendance and appears to be working on plans to ease them further. Roberts alluded to these efforts in his opinion. I hope this is an important element of his reasoning. I can understand the Court wanting to defer to localities as they wrestle with fine tuning the church reopening process. But if localities are displaying clear indifference to the rights of church attendees, that’s another matter.
