Saturday, May 30, 2020
A closely divided Court in South Bay United Pentacostal Church v. Newsom denied the application for emergency injunction relief sought by the church from California Governor Newsom's Executive Order placing numerical restrictions on all gatherings to combat the spread of the highly infectious corona virus causing COVID-19. The Ninth Circuit panel and the district judge had similarly denied the church's motion for a preliminary injunction.
There is no opinion from the Court. Chief Justice Roberts, who joined the majority in rejecting the emergency application, filed a brief concurring opinion. On the merits, Chief Justice Roberts wrote:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. 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. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
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. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, 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. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.
In short, religious gatherings were not being treated any differently under the California Order and the judiciary should defer to the politically accountable entities in health situations, especially when these are uncertain and changing.
Justice Bret Kavanaugh wrote a dissenting opinion, joined by Justices Thomas and Gorsuch — but interestingly not Justice Alito — concluding that the California Order did not treat the religious institutions the same as "comparable secular businesses" such as grocery stores. Kavanaugh argues that given this differential treatment, struct scrutiny should apply, and California has not advanced a sufficiently compelling reason to treat religious gatherings differently.
As the pandemic continues, there is certainly sure to be more litigation, but for a majority of the Court, gatherings including those that are religious can be limited in service to public health.