Supreme Court, in 5-4 Decision, Rejects Church’s Challenge to Shutdown Order - The New York Times

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WASHINGTON — The Supreme Court on Friday turned away a request from a church in California to block enforcement of state restrictions on attendance at religious services.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment,” Chief Justice Roberts wrote in an opinion concurring in the unsigned ruling.

“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,” the chief justice wrote. “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.”

Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh noted dissents.

“The church and its congregants simply want to be treated equally to comparable secular businesses,” Justice Kavanaugh wrote in a dissenting opinion joined by Justices Thomas and Gorsuch. “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”

“The state cannot,” Justice Kavanaugh wrote, quoting from an appeals court decision in a different case, “‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”

The court’s ruling was its first attempt to balance the public health crisis against the Constitution’s protection of religious freedom. And it expanded the Supreme Court’s engagement with the consequences of the coronavirus pandemic, after rulings on voting in Wisconsin and prisons in Texas and Ohio.

The case was brought by the South Bay United Pentecostal Church in Chula Vista, Calif., which said Gov. Gavin Newsom, a Democrat, had lost sight of the special status of religion in the constitutional structure.

“The Covid-19 pandemic is a national tragedy,” lawyers for the church wrote in their Supreme Court brief, “but it would be equally tragic if the federal judiciary allowed the ‘fog of war’ to act as an excuse for violating fundamental constitutional rights.”

The brief, filed May 23, asked the justices to block a ruling the day before from a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, saying that the shutdown orders did not single out houses of worship for unfavorable treatment. The majority said state officials had struck an appropriate balance.

“We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure,” the majority wrote in an unsigned opinion that went on to quote a famous dissent from a 1947 Supreme Court decision. “In the words of Justice Robert Jackson, if a ‘court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’”

In dissent, Judge Daniel P. Collins wrote that California had failed “to honor its constitutional duty to accommodate a critical element of the free exercise of religion — public worship.”

“I do not doubt the importance of the public health objectives that the state puts forth,” Judge Collins wrote, “but the state can accomplish those objectives without resorting to its current inflexible and overbroad ban on religious services.”

The appeals court ruled on May 22. That same day, President Trump made remarks on the subject at a news briefing.

“Today, I’m identifying houses of worship — churches, synagogues and mosques — as essential places that provide essential services,” he said, adding: “The governors need to do the right thing and allow these very important, essential places of faith to open right now, for this weekend. If they don’t do it, I will override the governors.”

Three days later, Mr. Newsom issued additional guidance for houses of worship, requiring them to “limit attendance to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower.”

In a second Supreme Court brief, the church said the guidance again discriminated against religious groups.

“Plaintiffs’ sanctuary seats 600 persons, and each service normally brings in between 200 and 300 congregants,” the brief said. “Some of the larger houses of worship in California can seat 1,000 congregants or more. But under California’s guidelines, plaintiffs will only be permitted to welcome 100 congregants, with no explanation as to the justification for this arbitrary cap. In contrast, there is no percentage limitation for manufacturing and warehousing facilities — simply a social distancing requirement.”

“A review of California’s sector-specific guidelines shows that the only two industries with percentage caps are retail and houses of worship,” the brief said, “and retail is set at a 50 percent cap. Offices, manufacturing, food packaging, museums, and every other sector has no percentage cap.”

The court also acted on a second case on Friday, that one brought by two Chicago-area churches, Elim Romanian Pentecostal Church and Logos Baptist Ministries. They said an order from Gov. J.B. Pritzker, a Democrat, discriminated against houses of worship.

The Coronavirus Outbreak

• Frequently Asked Questions and Advice

  Updated May 28, 2020

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The order, lawyers for the churches told the Supreme Court, imposes “a unique 10-person limit on religious worship services that is not imposed on customers or employees of ‘big box’ retail stores, liquor stores, restaurants, office buildings, warehouses, factories or other businesses and activities which, like worship services, have been deemed ‘essential’” by Mr. Pritzker.

Lower courts had refused to block the order, saying the distinctions it drew were sensible.

“Gatherings at places of worship pose higher risks of infection than gatherings at businesses,” wrote Judge Robert W. Gettleman of the Federal District Court in Chicago. “The congregants do not just stop by Elim Church. They congregate to sing, pray and worship together. That takes more time than shopping for liquor or groceries.”

A unanimous three-judge panel of the United States Court of Appeals for the Seventh Circuit, in Chicago, refused to stay Judge Gettleman’s ruling while the churches pursued an appeal.

In a preliminary and unsigned assessment of the case, the panel wrote that “the executive order does not discriminate against religious activities, nor does it show hostility toward religion.”

“It appears instead to impose neutral and generally applicable rules,” the panel wrote. “The executive order’s temporary numerical restrictions on public gatherings apply not only to worship services but also to the most comparable types of secular gatherings, such as concerts, lectures, theatrical performances or choir practices, in which groups of people gather together for extended periods, especially where speech and singing feature prominently and raise risks of transmitting the Covid-19 virus.”

“Worship services,” the panel wrote, “do not seem comparable to secular activities permitted under the executive order, such as shopping, in which people do not congregate or remain for extended periods.”

On Thursday, Mr. Pritzker announced that he was lifting the 10-person limit on religious gatherings. That made the case moot, the state’s lawyers wrote in a Supreme Court brief.

In response, the churches urged the court to rule, saying the governor remained free to change his mind. “Churches are one whim away from being once again subjected to the restrictions they challenge in this case and which the governor obviously still favors,” lawyers for the churches wrote.

In its order turning down the churches’ request on Friday, the Supreme Court noted the new guidance, adding that it would allow the churches to file “a new motion for appropriate relief if circumstances warrant.”

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