Late Friday night, Feb. 5, the Supreme Court responded to California’s ban on all indoor religious gatherings by granting injunctive relief to the churches challenging the overburdensome pandemic restriction. The Court’s 6-3 order overturned the ban, replacing it with a 25% capacity limit on indoor worship. However, litigation will continue on the state’s ban on singing and chanting, as the justices were split on that particular policy.
“This is a reasonable and good decision by the Supreme Court,” said Russell Moore, president of the ERLC, on the Saturday morning following the Court’s order. Moore’s comments continued:
The decision respects the inviolable constitutional rights to religious freedom as well as the legitimate role of the government in fighting a deadly virus. It ensures that churches are not penalized because they are religious as opposed to being members of the business or entertainment industries. I hope that now all states will focus on working with, and not against, religious communities on our common goal: caring for the sick, protecting the vulnerable, and ending this pandemic.
As the ERLC has advocated for since the beginning of this long road to find balance between public health policy and foundational First Amendment-secured freedoms, churches must be treated the same as other similar gatherings. Last year in May, just three months into the pandemic, when the justices rejected California church’s challenge, Moore said he, “wished the Supreme Court had acted to bring more constitutional clarity to this pressing question.”
This weekend’s order on California advances religious freedom because Governor Gavin Newsom’s policy was the last total ban on houses of worship in the country as the pandemic enters its second year. The state’s restrictions were also non-neutral, similar to the non-neutral policies struck down in Nevada by the 9th Circuit and the District of Columbia by the federal District Court. Most recently, and most significantly for religious liberty jurisprudence during the pandemic, the Supreme Court overturned New York’s non-neutral restrictions the Wednesday before Thanksgiving.
Six justices joined to strike down California’s total ban on indoor religious services. Explaining his own reasoning in this case, Chief Justice Roberts argued that California had failed to respect the fundamental rights held by houses of worship: “The State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
Justice Gorsuch also wrote separately, joined by Justices Thomas and Alito, arguing that California had targeted houses of worship for worse treatment than the entertainment industry and other businesses. He also rebuked the Ninth Circuit for failing to follow the Court’s recent ruling in Roman Catholic Diocese of Brooklyn v. Cuomo:
Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution. Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.
Three justices would have struck down California’s ban on singing and chanting. Justice Gorsuch pointed out that while California’s ban on indoor singing does technically apply to all businesses and organizations, California has made exceptions:
It seems California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.
The Court left in place, however, California’s ban on singing and chanting during religious services. Justice Barrett wrote separately—her first written opinion—to argue that the record in the case was insufficiently clear to support overturning California’s ban on singing. Justice Kavanaugh joined in her opinion.
The two churches in this case will now have to go back to the lower courts to present more evidence to overturn California’s singing and chanting ban. However, Justices Barrett and Kavanaugh did both express skepticism about this ban, writing in their opinion, “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”
Just as we articulated in a July 2020 piece on singing during Covid-19, we would urge California to see these signals from the Court and work with houses of worship to create an exemption similar to that offered to the entertainment industry. We will continue to engage with these cases as litigation over this issue continues.
The California cases will now go back down to the lower courts for further consideration in light of the Court’s decision. As with Roman Catholic Diocese of Brooklyn v. Cuomo, the Court again showed its willingness to step in and provide much-needed clarity for lower courts during the pandemic.
Concluding his separate opinion, Justice Gorsuch urged California and other states to draft narrowly tailored regulations, especially considering how long the pandemic has worn on. In an especially poignant passage, he concluded:
As this crisis enters its second year— and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But 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.