The Supreme Court’s order late Friday night that California must allow churches to resume indoor worship services reveals a conservative majority that’s determined to guard religious rights and is more than willing to second-guess state health officials, even during a pandemic.
Instead, the justices imposed their own rule: The state must allow indoor services but may limit attendance at 25 percent capacity. The court left in place — for now — a ban on singing and chanting at those events, activities the state said were particularly risky for spreading the coronavirus.
The court’s action was badly fractured. Five of the nine justices wrote to explain their reasoning, including Justice Amy Coney Barrett, who issued her first signed opinion.
But the direction of the court is clear: The conservative justices now in control are highly suspicious of state restrictions on the constitutionally protected right to worship, even as some officials contend that those are the events — people from different families gathering together for an extended period indoors while singing and chanting — most likely to spread the virus.
Justice Neil M. Gorsuch, writing for himself and Justices Clarence Thomas and Samuel A. Alito Jr., said the court last fall made it clear that states may not enact looser regulations for businesses and other activities than for houses of worship.
But “once more, we appear to have a state playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful,” Gorsuch wrote.
He added: “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, something has gone seriously awry.”
Justice Elena Kagan answered for her colleagues on the left, Justices Stephen G. Breyer and Sonia Sotomayor, in a sharply worded dissent.
“Justices of this Court are not scientists,” Kagan began, accusing her colleagues of practicing “armchair epidemiology.”
She implied hypocrisy: The Supreme Court itself has been closed for official business for nearly a year, and the justices conduct oral arguments and their private conferences by phone rather than in person because of the pandemic.
Although the court displaces the advice of experts, she wrote, “if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a state’s pandemic response.”
The court’s action underscored the change that has occurred since the death of liberal Justice Ruth Bader Ginsburg and her replacement by Barrett, a conservative.
In the early days of coronavirus restrictions, Chief Justice John G. Roberts Jr. joined with the court’s then-four liberals in basic deference to local officials. Roberts said that generally it was up to local and state officials, not unelected judges, to protect public health, even if religious activity is restricted.
But the court’s more conservative justices balked at the notion that judges had little of a role to play. Once Barrett replaced Ginsburg and the court’s balance shifted, they struck down New York Gov. Andrew M. Cuomo’s capacity restrictions on houses of worship.
“Even in a pandemic, the Constitution cannot be put away and forgotten,” said the unsigned opinion in the New York case. Restrictions that bar many people from attending worship services “strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Both the New York and California cases have come before the court as emergency applications, and thus do not have the kind of extended briefing and oral arguments that accompany the court’s other cases.
The orders that result generally are short and unexplained: Friday night’s unsigned opinion, for instance, is only 19 lines long, and it does not say how the majority decided on the 25 percent capacity limit.
Barrett, in her first signed opinion, said she agreed substantially with Gorsuch and the others that the restrictions should be lifted, but she wasn’t sure the churches had shown the ban on singing was discriminatory.
“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral,” Barrett wrote in a one-paragraph statement joined by Justice Brett M. Kavanaugh. “But the record is uncertain,” and the decisions by the lowers courts “unfortunately shed little light on the issue.”
Roberts continued to try to find a place in the middle, but he said California officials had gone too far in allowing only outdoor services.
“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,” he wrote.
California had argued that its restrictions were based on the best scientific advise and were as tough, if not tougher, on similar events, such as lectures and performances. While acknowledging the cost to the religious, the state said the limits were necessary to control a pandemic that is almost out of control. Kagan noted in her dissent that more than 3,500 Californians died of the virus in a recent week.
Americans United for Separation of Church and State President Rachel Laser said the court was adopting a “radical definition” of religious liberty.
“The Supreme Court has misconstrued religious freedom to mean religious privilege and placed the health of the American people in jeopardy,” she said in a statement.
The state’s restrictions were challenged by South Bay United Pentecostal Church in Chula Vista and Harvest Rock Church in Pasadena. Another group, Harvest International Ministry, has facilities throughout the state.
Charles LiMandri, who represented South Bay on behalf of the Thomas More Society, said in a statement that Newsom’s unprecedented restrictions “demonstrated a flagrant disregard for California’s citizens and their deeply and sincerely held religious beliefs. . . . It is time for the United States Constitution to be honored in the State of California.”
A district court judge and a divided panel of the U.S. Court of Appeals for the 9th Circuit had found that the state’s restrictions were appropriately tailored to respect religious rights but also to protect the public.
But Gorsuch said those decisions appeared to be more recalcitrance than adherence to the guidelines the court set out in its decision last fall.
“This court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution,” Gorsuch said. “Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this court already gave.”
The decision came in South Bay United Pentecostal Church v. Newsom.