POLITICO (“Supreme Court lifts California worship bans prompted by coronavirus“):
A splintered U.S. Supreme Court blocked California from enforcing coronavirus-related bans on indoor worship services, but declined to upset other state rules banning singing and chanting and limiting the number of worshipers.
The ruling issued just before 11 p.m. ET Friday produced four separate statements by the justices, as well as a convoluted description of what relief various justices would have granted to churches objecting to the limits.
However, a majority of the court was only willing to lift the ban California has applied on all indoor worship in Tier 1 counties — those most challenged by Covid-19. The other restrictions remain undisturbed, for now.
Perhaps the most surprising aspect of the Friday night ruling: new Justice Amy Coney Barrett, whose conservative Catholic views drew suspicion from many liberals in advance of her confirmation last year, declined to grant the churches the most sweeping relief favored by her most conservative colleagues.
Justices Neil Gorsuch and Clarence Thomas would have granted all the churches’ requests, lifting the singing and chanting bans and barred California from enforcing a 25 percent capacity limit that applies to many indoor facilities. Justice Samuel Alito would have had such a ban kick in 30 days from now if the state didn’t make certain showings in court.
“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,” Gorsuch wrote.
Barrett opted for a middle-ground position with Justice Brett Kavanaugh that did not go as far as Gorsuch, Thomas or Alito.
“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,” she wrote in a brief opinion.
The court’s three liberals dissented from the decision, arguing that the court was unwise to substitute its judgment for that of state officials amid the ongoing pandemic.
“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,” Justice Elena Kagan wrote in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor. “In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.”
Kagan also suggested that given California’s climate, a ban on indoor worship is less onerous there than elsewhere. “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,” she wrote.
Chief Justice John Roberts, who provided a swing vote last year leading to rulings turning down churches’ requests for relief from virus-related limits, said he still believes in deference to elected officials. But he said Friday the outright ban in place in much of California defied logic.
“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,” Roberts wrote. “Deference, though broad, has its limits.”
I haven’t had time to dive into the particulars of the various requests to assess their merits. I therefore have no opinion as to whether the more maximal or minimal grants were appropriate.
That said, my thinking on these cases has evolved. While I have sided with Kagan’s premise—that it’s appropriate to treat worship like secular activities—I’m coming to believe that’s incorrect. Rather, the Constitution requires that the exercise of religion be granted exceptional deference just as we do for other First Amendment freedoms, including protest.
Probably because I’m not religious, I have tended to regard in-person religious services as something akin going to the movies or out to a restaurant. That is, as a purely optional social activity that governments can reasonably regulate to prevent negative externalities. One suspects Governor Newsome and other high-level California decisionmakers were taking the same view.
But, of course, neither theaters nor restaurants, institutions with which the Framers would certainly have been familiar, are specifically enshrined in the Bill of Rights. Yet the very first provision protects establishments of religion, the free exercise thereof, speech, the press, peaceable assembly, and the right to petition the government for a redress of grievances.
For both practical and philosophical reasons, neither the Federal, state, or local governments tried to enforce masking, social distancing, or crowd size limitations during the Black Lives Matter protests. They rightly viewed them as in a different category than spectator sports, concerts, or even funerals.
By analogy, we should view religious services differently than block parties, sports bars, and barbecues. Rather than mere social activities, they’re fundamental to worship and therefore essential for believers.
If we start from that premise, it doesn’t end the discussion. Governments have the right to place time, place, and manner restrictions on speech and assembly to balance against other needs of the community. And, certainly, preventing the spread of infectious disease is a very strong and legitimate interest.
It does, however, mean that we should treat church services as essential services rather than as entertainment. Under that premise, it would be hard to justify banning all indoor worship while allowing grocery shopping and visits to the liquor store.
