US Supreme Court declines to lift restrictions on crowds at church services

From SCOTUSBlog May 30, 2020 (excerpt)

… Chief Justice John Roberts wrote a short opinion to express his agreement with (and to explain) the denial of the church’s request. He began by noting that COVID-19 “has killed thousands of people in California and more than 100,000 nationwide,” but there is “no known cure, no effective treatment, and no vaccine.” Moreover, he added, people “may be infected but asymptomatic” and therefore can infect others unknowingly. The California order at the heart of this case, he observed, temporarily restricts the number of people who can gather in public “to address this extraordinary health emergency.”

The relief that the church had asked for – an order blocking the state from enforcing the restrictions on gatherings – faces a high bar, Roberts explained. And in his view, the church could not meet that bar. The restrictions appear to be constitutional: The state has limited the size of similar, non-religious gatherings like plays, concerts and sporting events. Although the state treats activities like grocery stores and banks differently, Roberts continued, those activities are in fact different, because they do not involve large groups of people coming together in close proximity for extended periods of time. “The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts reasoned, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” It is also a question the Constitution has primarily delegated to politicians, which courts should normally not second-guess. “That is especially true,” Roberts explained, in a case like this one, in which the church is seeking emergency relief “while local officials are actively shaping their response to changing facts on the ground.” The idea that it is so clear that the restrictions are unconstitutional that the Supreme Court should step in, Roberts concluded, “seems quite improbable.”

In a three-page dissent joined by Thomas and Gorsuch, Kavanaugh argued that the restrictions on attendance imposed on the church do violate the Constitution. In his view, the businesses that are not subject to the restrictions – which, he noted, include malls, pet groomers, hair salons and marijuana dispensaries – are comparable to gatherings at houses of worship, and California has not shown a good reason for treating houses of worship differently. Because the church “would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Kavanaugh would have granted the church’s request for relief….

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PDF: Supreme Court Opinion