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The Supreme Court ruled late Friday night, May 29, on an appeal by the South Bay United Pentecostal Church in Chula Vista of a May 22 ruling by the 9th Circuit Court of Appeals [pdf] that upheld Gov. Gavin Newsom’s ban on in-person church services as part of his first-in-the-nation stay-at-home order issued on March 19.
Supreme Court Chief Justice John Roberts Jr. cast the deciding vote with the court's four liberals, justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan, "to deny the request for intervention from [the] Pentecostal church near San Diego," though those justices did not join the statement by Roberts, reports Robert Barnes who covers the U.S. Supreme Court for the Post.
Roberts wrote that state officials such as California Gov. Gavin Newsom (D) had leeway to impose restrictions to prevent the spread of coronavirus, and had not singled out places of worship for unfair treatment.
First Amendment debate
"Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment," wrote Roberts in the six-page ruling [pdf].
"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."
As posted recently, banning or limiting sizes of religious services falls into the First Amendment vs. public health and safety debate. Barnes notes that the four conservatives took the opposite perspective.
“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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