Sunday, February 7, 2021

Supreme Court strikes down California restrictions on religious worship

Covid-19 is starting to produce its own body of case law, much like Vietnam and the civil rights movement led to new doctrines in First Amendment cases more than 50 years ago. The Covid cases ask the courts when the government may clamp down on civil liberties in the interests of stopping the spread of this virus. It looks like the Supreme Court is less deferential to governmental thinking than I might have expected. The Court is now routinely striking down public assembly restrictions to the extent they restrict churchgoing and other religious activities. Like this case.

The case is South Bay United Pentecostal Church v. Newsom, issued on February 5. California is now bearing the brunt of this virus. The governor restricted churchgoing in much of the state. But other establishments may still entertain patrons and customers, like grocery stores and movie studios. California said churches are different because they attract many people from different households who sing and worship in close proximity for extended periods. 

The Supreme Court strikes down the California rules by a 6-3 vote. The Court does say the state may impose a 25% capacity at houses of worship. The Court also allows the ban on singing and chanting in church. But overall, this is a victory for the churches.

Justice Gorsuch writes the most extensive opinion in this case, which reaches the Court as an emergency motion, so there is not actual Court opinion, the normal course of action in Supreme Court cases. He agrees that stopping the spread is a compelling reason to restrict civil liberties, but that the restrictions are not narrowly-tailored, or carefully drawn, as required under the First Amendment. He says the factors cited by California are not always present in every church situation, and that there are other ways to protect the public without shutting down the churches entirely, like social distancing requirements, mask-mandates, plexiglass barriers, cleaning, etc. While the state says church brings people together for extended periods of time, the same may hold true for open establishments like shopping malls, salons, or bus terminals, Gorsuch says. What it all means is that since religious establishments are held to stricter standards than other establishments, California has violated the Free Exercise (of religion) Clause of the First Amendment. Gorsuch concludes that while "drafting narrowly tailored regulations can be difficult, . . . if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California churches, synagogues, and mosques, something has gone seriously awry."

In dissent, Justice Kagan, writing for Justices Breyer and Sotomayor, says the majority is ignoring the scientific judgment of those who advised California to adopt these restrictions. She said the restrictions are neutral and not biased against religion because the religious congregation rules are the same as those guiding other large groups of people who gather for extended periods of time, like concerts, plays, movies, restaurants and bars. Since those are secular gatherings, religious activities are not being singled out.

If you are keeping score, the justices in the majority are Republican appointees, including the three justices appointed by Trump. The dissenters are Democratic appointees. 

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