From the beginning of California’s COVID-19 shutdown in March, religious institutions were excluded from the state’s definition of “essential businesses,” including the South Bay United Pentecostal Church in Chula Vista, Calif. The church spent most of May in court fighting Governor Gavin Newsom’s imposition of more stringent restrictions on religious gatherings than comparably risky secular activities.
As California shifted to a four-stage reopening plan, its discrimination against houses of worship grew as their reopening was pushed to “Stage 3,” behind manufacturing, warehousing, offices, schools, and shopping malls. Californians were allowed to gather by the thousands ten hours a day, seven days a week, to visit America’s high altar to consumerism, but could not gather for an hour a week to worship God.
When the Pentecostal church’s challenge reached the Ninth Circuit, a 2–1 panel affirmed the district court’s refusal to grant the church a temporary restraining order, over the blistering dissent of Trump appointee Daniel Collins. The church then made an emergency request to the Supreme Court via Justice Kagan, the circuit justice responsible for the Ninth Circuit. Last Monday, Newsom gave a bit by allowing houses of worship to gather at 25 percent of building capacity or 100 attendees, whichever is lower. That restriction does not apply to the favored businesses.
The church did not ask the Court for any special privilege. It was willing to comply with the same social distancing and hygiene protocols as the favored entities. It simply asked not to be subjected to more onerous restrictions than they were. How is wearing a mask and keeping six feet apart riskier when done in a church auditorium vs. a school auditorium? Answer: It isn’t.
This should have been an easy call. But soon before midnight on the Friday before Pentecost Sunday, the Court denied injunctive relief by a 5–4 vote. Chief Justice Roberts joined the liberal bloc, opining in a concurrence that “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to protect the church.
As the chief justice saw it, “comparable secular gatherings” including concerts and theatrical performances faced similar (or greater) restrictions while “only dissimilar activities” where “people neither congregate in large groups nor remain in close proximity for extended periods” had fewer burdens. He argued that elected officials have “especially broad” latitude to “act in areas fraught with medical and scientific uncertainties.”
Chief Justice Roberts blatantly mischaracterizes the issue. The test of discrimination isn’t whether any comparable secular activity is treated as badly as religious activity, it is whether any comparable secular activity is treated better than religious activity. In the race context, it is obviously wrong to say blacks cannot claim discrimination if Hispanics are treated just as badly, because the proper question is whether any race is treated better than African Americans. If Roberts thought this was a close call, he should have voted to grant the temporary relief to avoid irreparable harm in turning back so many Pentecostal churchgoers on Pentecost Sunday.
Justice Kavanaugh wrote a dissent, joined by Thomas and Gorsuch, pointing out that in fact “comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” The fact that some secular activities like movie theaters are restricted as much or more than churches is entirely beside the point.
Of course, several of the favored categories can include large numbers of people and longer stays than a church service. The risks inherent in those settings were addressed by safety protocols, which suddenly cease to be sufficient when the context shifts to churches. “The State . . . has substantial room to draw lines, especially in an emergency,” Kavanaugh noted. “But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.” California’s occupancy cap “indisputably” does that, in violation of the First Amendment.
For good measure, Kavanaugh’s incisive opinion quoted the Sixth Circuit’s recent observation in a similar case, improbably named Roberts v. Neace: “The State cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”
Sadly, it would appear it can when the state is California.