Supreme Court partly backs religious challenge to California virus restrictions

A splintered Supreme Court late Friday partly lifted restrictions on religious services in California that had been prompted by the coronavirus pandemic.

The court ruled in cases brought by South Bay United Pentecostal Church in Chula Vista and Harvest Rock Church in Pasadena. The churches said restrictions imposed by Gov. Gavin Newsom, a Democrat, violated the Constitution’s protection of the free exercise of religion.

The restrictions set varying limits on attendance at religious services by county, depending on infection rates. With the pandemic raging, in-person worship services were entirely barred in Tier 1, which covers almost all of the state.

In a brief, unsigned opinion, the court blocked that total ban but left in place a 25% capacity restriction and a prohibition on singing and chanting. Justices Clarence Thomas and Neil Gorsuch said they would have blocked all of the restrictions. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, saying they would have left all of the restrictions in place.

Chief Justice John Roberts, in a concurring opinion, explained why a middle ground was appropriate. He said that the court should generally defer to public health experts but that there were limits to that deference.

“The state has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID-19,” he wrote. “I see no basis in this record for overriding that aspect of the state public health framework.”

“At the same time,” the chief justice continued, “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.”

Justice Amy Coney Barrett, in her first opinion, wrote that she would not have blocked the restrictions on singing and chanting based on the available evidence. Justice Brett Kavanaugh joined her opinion.

Gorsuch, joined by Thomas and Justice Samuel Alito, said the state had favored its entertainment industry over worship services.

“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,” Gorsuch wrote, “something has gone seriously awry.”

In dissent, Kagan, joined by Breyer and Sotomayor, said the majority had intruded into matters best left to public health officials.

“Justices of this court are not scientists,” Kagan wrote. “Nor do we know much about public health policy. Yet today the court displaces the judgments of experts about how to respond to a raging pandemic.”

“The state is desperately trying to slow the spread of a deadly disease,” she wrote. “It has concluded, based on essentially undisputed epidemiological findings, that congregating together indoors poses a special threat of contagion. So it has devised regulations to curb attendance at those assemblies and — in the worst times — to force them outdoors.”

“In the worst public health crisis in a century,” Kagan wrote, “this foray into armchair epidemiology cannot end well.”

The ruling followed a similar one in November in a case from New York, and it cemented the court’s change of direction on the issue after the death of Justice Ruth Bader Ginsburg, whose vacancy was filled by Barrett.

In the latest case, a unanimous three-judge panel of the 9th US Circuit Court of Appeals, in San Francisco, refused to block the most severe restrictions in the case concerning the church in Chula Vista.

Judge Kim McLane Wardlaw, writing for the panel, said the church had not met its burden for obtaining an injunction.

“Notably, in response to the state’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks — 100% occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures — would be effective to meet California’s compelling interest in controlling community spread,” Wardlaw wrote. “South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshippers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.”

Relying on that ruling, a different three-judge panel of the 9th Circuit followed suit in the case concerning Harvest Rock Church. In a reluctant concurring opinion, Judge Diarmuid O’Scannlain urged the Supreme Court to intervene.

“California’s uniquely severe restrictions against religious worship services — including its total ban against indoor worship in nearly the entire state — are patently unconstitutional and should be enjoined,” he wrote. “The court’s refusal to do so in South Bay cries out for correction.”

“In exactly the same locales where indoor worship is prohibited,” O’Scannlain wrote, “California still allows a vast array of secular facilities to open indoors, including (to name only a few): retail stores, shopping malls, factories, food-processing plants, warehouses, transportation facilities, child care centers, colleges, libraries, professional sports facilities and movie studios.”

Last year, before the death of Ginsburg, the Supreme Court allowed the governors of California and Nevada to restrict attendance at religious services. In a pair of 5-4 orders, Roberts joined what was then the court’s four-member liberal wing to form a majority.

The court changed course in November after the arrival of Barrett, in a case from New York. Disavowing the chief justice’s approach, the majority barred restrictions on religious services in New York that Gov. Andrew Cuomo had imposed to combat the coronavirus.

In an unsigned opinion, the majority said Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion.