The Supreme Court has issued a pair of rulings striking down California’s ban on in-person church attendance. Both decisions were 6-3, with terminal squish John Roberts joining the consevative majority in the rulings. The rulings allow churches to re-open while the cases are on appeal, but leave in place capacity restrictions and the ban on singing and chanting.
The opinons as in these cases are interesting as they give us a glimpse into the thinking of the Justices. Justices Thomas and Gorsuch wrote concurrence stating they would have given the appelants everything they wanted. They suggested that it is not difficult to determine in this case whether California has singled out religion for special, and more stringent, treatment. The Justices acknowledged that the state “has a compelling interest in reducing” the risk of transmitting COVID-19, but they expressed skepticism that the state’s justifications for placing restrictions on worship services. Justice Alito signed that concurrence with a note that he would give california more time to justify their capacity limits. The justices concluded by noting that the state may argue on remand that the restrictions are only temporary “because vaccinations are underway.” But it “is too late for the State” to make that argument as “this crisis enters its second year,” they stress, and “if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.”
A separate concurrence, written by Justice Barrett and signed by Justice Kavanaugh said they thought the churches had not proved theur case vis the singing and chanting ban. She explained that it was the churches’ responsibility to show that they were entitled to relief from the ban on singing, and that – at least in her view – they had not done so. As a result, she wrote, it was not clear whether the ban on singing and chanting applies only to religious services, or whether it applies more broadly – for example, to Hollywood productions.
Chief Justice John Roberts, in his own concurrence, reiterated a view that he expressed in an earlier challenge by South Bay United Pentecostal Church: the idea that “federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health.’” Roberts explained, he saw no reason to overturn the state’s determination that singing indoors creates a greater risk of COVID-19 transmission. However, he continued, the ban on indoor worship services “appears to reflect not expertise or discretion, but instead insufficient appreciation of the interests at stake.” “Deference, though broad,” he concluded, “has its limits.”
JUstice Kagan penned the dissent which was joined by Justices Breyer and Sotomayor. In it she complained that although the justices “are not scientists” and do not “know much about public health policy,” the majority had nonetheless opted to displace “the judgments of experts about how to respond to a raging pandemic.”
“Under the Court’s injunction,” Kagan lamented, California is required to “treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.”
“No one can know, from the Court’s 19-line order, exactly why” the court reaches that conclusion, Kagan observed: “Is it that the Court does not believe the science, or does it think even the best science must give way?”
