In a 5-4 decision, the court voted to uphold the prohibition of religious services that was part of California Gov. Gavin Newsom's stay-at-home order. While the restriction had since been loosened, the plaintiff wanted all restrictions removed.
“California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses,” wrote Justice Brett M. Kavanaugh. “Such discrimination violates the First Amendment.”
Justices Clarence Thomas and Neil M. Gorsuch joined Kavanaugh’s dissent. The court’s order said Justice Samuel A. Alito Jr. also would have granted the church’s request, but he did not join the Kavanaugh statement.
Places of worship must therefore limit attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower. This limitation will be in effect for the first 21-days of a county public health department’s approval of religious services and cultural ceremonies activities at places of worship within their jurisdictions.
"Even if just one infected person showed up to such an event, the virus could easily be transmitted to many people and overwhelm local health officials’ ability to investigate all related cases," warned Santa Clara County Health Officer Sara Cody on May 26. Cody worked with five of her counterparts in Bay Area counties to shut down the region just a few days before Newsom did so, which many public health experts credit for their flattening the curve.
Barnes notes that the expert who testified on behalf of California presented evidence of just such infection spread, including "a worship service in Sacramento tied to 71 COVID-19 cases; a choir practice in Seattle [sic]; linked to 32 cases; a Kentucky church revival tied to 28 cases; and a religious service in South Korea where over 5,000 cases were traced back to a single infected individual in attendance.”
Advice to courts
In a follow-up piece published on May 30, Barnes writes that in five paragraphs, "Roberts laid out what will likely be the test for courts going forward."
"Protecting public health is a "dynamic and fact-intensive matter subject to reasonable disagreement, but one the Constitution “principally entrusts” to elected officials.
Generally, he said, “they should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”
In his earlier piece, Barnes wrote that Roberts quoted a court precedent in this sentence.
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