29 May COVID-19 and Religion: Supreme Court Declines to Enjoin California Limits on In-Person Worship
South Bay United Pentecostal Church v. Newsom, no. 19A1044, 590 US ___ 2020 (U.S. May 29, 2020).
A 5-4 Supreme Court majority has declined to enjoin Governor Gavin Newsom’s Executive Order restricting in-person religious gatherings. In an apparent response to Justice Kavanaugh’s dissent, Justice Roberts wrote a late-night individual concurrence, deferring to elected officials responsible for protecting the health of their constituents and citing the fact that California’s limits on the size of in-person activities affect not only worship services but also secular groupings like concerts, lectures and sporting events.
Late Friday night, May 29, 2020, the Supreme Court denied a motion by Chula Vista’s South Bay United Pentecostal Church (Church) to enjoin California Governor Newsom’s Executive order (Order) limiting attendance at places of worship to 25% of the building occupancy or a maximum of 100 people.
On May 4, 2020, Governor Newsom had announced a group of activities that would move to Phase 2 of the state’s reopening plan. Houses of worship were not included. The Church rapidly moved for a temporary restraining order in the Southern District of California. That motion was denied. On May 22, 2020, the Ninth Circuit denied the Church’s motion for injunction in a 2-1 ruling (South Bay United Pentecostal Church v. Newsom, no. 20-55533 (9th Cir May 22, 2020)) in a brief opinion upholding the Order because churches are a “higher risk workplace” and because it was not targeting religious expression:
Where state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment.
The dissenting Ninth Circuit vote came come from Judge Daniel Collins, a May 2019 Trump appointee, in a scathing 18-page critique which asserted that the Order unambiguously targets religion.
The Church and Bishop Arthur Hodges III then sought relief at the Supreme Court, alleging that Governor Newsom and other state and local elected officials “intentionally denigrated California churches and pastors and people of faith by relegating them to third-class citizenship.”
A 5-4 majority of the Court declined to intervene, without opinion. Presumably responding to Justice Kavanaugh’s dissent, discussed below, Justice Roberts wrote a lone concurrence in support of Justices Kagan, Sotomayor, Ginsburg and Breyer, citing the heightened threshold required to enjoin an executive action: “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.”
Roberts found that “Although California’s guidelines place restrictions on places of worship, they appear to be consistent with the Free Exercise Clause of the First Amendment.” The limitations were not aimed at religious expression but at a wide range of “comparable secular gatherings” (an implicit rebuttal to Kavanaugh’s use of that phrase) where the public would come together for sustained timeframes:
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.
Roberts cited Jacobson v. Massachusetts, 197 U. S. 11 (1905) which upheld the right of that state’s municipalities to mandate smallpox vaccinations for all persons over 21 years old. In that decision, Chief Justice John Marshall Harlan, writing for a 7-2 majority, articulated that individual freedoms in the Constitution are not absolute:
[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand . . . Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.
(In his Ninth Circuit dissent, Trump appointee Collins had explicitly targeted Jacobson: “Even the most ardent proponent of a broad reading of Jacobson must pause at the astonishing breadth of this assertion of government power over the citizenry, which in terms of its scope, intrusiveness, and duration is without parallel in our constitutional tradition.”)
Roberts acknowledged 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.” Given that the Constitution “principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect,’” the latitude of those officials “must be especially broad” when they act in matters “fraught with medical and scientific uncertainties” (citing Marshall v. United States, 414 U. S. 417 (1974)). And so long as those officials do not exceed the broad scope of their powers, “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.” (referencing Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985)).
Roberts cautioned that the power of the judiciary to enjoin such executive action is wielded solely where “the legal rights at issue are indisputably clear” and even then, “only in the most critical and exigent circumstances.” Here, South Bay United Pentecostal Church had not made such a showing: “The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”
DISSENT: Justice Kavanaugh dissented, in an opinion joined by Justices Thomas and Gorsuch (Justice Alito dissented, but did not join Kavanaugh).
Kavanaugh characterized the Order as restricting “one group” while commercial establishments were not limited by a similar occupancy cap: “California undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens. But ‘restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.’ Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam).”
The Kavanaugh dissent made no mention of the comparators cited by Justice Roberts involving large groups in stationary contact for extended periods of time—concerts, lectures, sporting events, movies and the like. All of these activities would be subject to occupancy caps under the Order, similar to those imposed on in-person worship. Instead, Kavanaugh categorized churches with “comparable secular businesses” which had been allowed greater flexibility: “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” Given that the Church was willing to abide by the Order’s lesser restrictions that applied to these secular businesses, Kavanaugh posed questions including: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew?”
Having placed worship services and “comparable secular businesses” on the same plane (a transposition that may well have instigated Justice Roberts’ concurrence), Kavanaugh found the Order unsustainable: “What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification.”
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