Last night the Supreme Court declined to intervene in challenges by churches in southern California and the Chicago area to stay-at-home orders issued as a result of the COVID-19 crisis. The churches had asked the justices earlier this week to lift restrictions on crowds in time for them to hold services on Sunday, when Christians celebrate the holy day of Pentecost. But the justices turned them down. The court issued only a terse order in the Illinois case that referred to the new guidance issued by the state earlier this week. But the justices were closely divided in the California case, with Chief Justice John Roberts casting the deciding vote and writing a late-night opinion to explain his decision to deny relief.
The California case was filed on Tuesday by the South Bay United Pentecostal Church, which is located in Chula Vista, California – just south of San Diego. The church argued that the reopening plan outlined by California Governor Gavin Newsom and San Diego County discriminated against houses of worship by keeping them closed while allowing retail stores, offices, restaurants and schools to open. The church asked the justices to issue an order that would allow it to hold services this Sunday, May 31.
On Wednesday, two Romanian-American Christian churches in the Chicago area asked the justices to issue a similar order for them. The churches in that case argued that Illinois’ stay-at-home and reopening plan, which imposed a 10-person limit on worship services, violated the Constitution.
California (along with San Diego County) and Illinois urged the justices to deny the churches’ requests. They began by explaining that indoor worship services are different from retail stores or businesses because people are more likely to gather in close proximity for longer periods of time. Moreover, they added, the singing and speaking at worship services “increases the danger” that people who are infected with the COVID-19 virus will “project respiratory droplets that contain the virus,” passing the infection on to others. Indeed, they noted, there have been several examples linking significant COVID-19 outbreaks to worship services.
But in any event, California and Illinois continued, there was no need for the justices to intervene because the restrictions had been lifted. In California, the San Diego County Health Department issued an order (following new guidance from the state) on May 26 that allows churches in the county, including South Bay, to hold services, as long as they limit attendance to 25 percent of their building capacity or a maximum of 100 people and practice social distancing. Although the church argues that it is also harmed by the new guidance, because its building seats 600 and its attendance is normally somewhere between 200 and 300, the state emphasized that the church had not asked for an order blocking the enforcement of the new guidance in the lower courts. Moreover, the state observed, the church could add more services if it wants to ensure that everyone can attend.
In Illinois, the order banning gatherings with more than 10 people expires on May 29; “after that date religious gatherings will no longer be subject to mandatory restrictions.” Any concerns about whether the state will limit the size of worship services after May 29 are, Illinois told the justices, merely “speculative.”
At approximately 6:30 p.m. ET, the justices turned down the request from the Illinois churches without any public dissents. In a brief two-paragraph order, the court noted that the state’s public health department had “issued new guidance on May 28,” and it added that tonight’s order did not bar the churches from returning to the court “if circumstances warrant.”
The justices did not act on the California case until nearly midnight on Friday. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicated that they would have granted the church’s request; Kavanaugh also wrote a dissent from the denial of the church’s request.
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, Roberts explained, a high bar. And in Roberts’ view, the church could not meet that bar. The restrictions appear, Roberts wrote, 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, Roberts observed, 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.