The Story: The Supreme Court recently rejected a challenge to a California pandemic policy restricting occupancy in churches to 25 percent of building capacity or no more than 100 attendees.
The Background: South Bay United Pentecostal Church and their senior pastor, Bishop Arthur Hodges III, sought an injunction to prevent enforcement against them of various “stay at home” orders issued by the State of California and the County of San Diego to help mitigate the effects of the COVID-19 pandemic. The Southern District of California and the Ninth Circuit both denied the injunction, but since other federal courts had responded to similar issues differently, the Supreme Court was asked to decide the case.
The church didn’t contest that state governments have a compelling interest in curbing pandemics that might require limiting personal liberties. They contended that the state was allowing other entities to reopen, such as retail (for curbside pickup only) and all manufacturing and warehousing facilities. The church considered the restriction “a severe deprivation of religious liberty.” (The sanctuary of their church building seats up to 600 people, but is usually only a third-, or half-filled, with 200–300 congregants.)
Four justices (Thomas, Alito, Gorsuch, and Kavanaugh) would have granted the injunction, but five others (Roberts, Ginsburg, Breyer, Sotomayor, and Kagan) voted to deny the request.
Chief Justice Roberts wrote in the majority opinion that California’s guidelines placing restrictions on places of worship appear consistent with the Free Exercise Clause of the First Amendment. “Similar or more severe restrictions apply to comparable secular gatherings,” Roberts said, “including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
Why It Matters: Is a church gathering more like a movie theater or a marijuana dispensary?
While that may seem like an odd choice of comparisons, that question was at the core of the issue the Supreme Court was asked to decide. The state of California’s four-stage reopening plan permits certain offices, schools, and businesses (including cannabis dispensaries) to reopen. But places of worship could not. Does that violate the Free Exercise clause of the First Amendment to the U.S. Constitution?
The answer to this judicial question depends not only on who you ask, but when you ask. As Walter Olson notes, “Over the last 60 or so years liberals and conservatives have switched places on the question of religious accommodation. Few foresaw this development.” From the 1960 to the 1990s, the Court’s more liberal justices championed the idea of a constitutional right to religious accommodation, Olson says.
A shift in religious liberty jurisprudence occurred in the 1963 case Sherbert v. Verner when the Supreme Court adopted the “constitutional exemption model,” under which sincere religious objectors had a presumptive constitutional right to an exemption to generally applicable laws because of the Free Exercise clause. This decision was reaffirmed in the 1972 case Wisconsin v. Yoder. During this period the Court used what is called “strict scrutiny” when the law imposed a “substantial burden” on people’s religious beliefs. Under this strict scrutiny, religious objectors were to be given an exemption, unless denying the exemption was the least restrictive means of serving a compelling government interest.
This was the standard until it was challenged in 1990 by conservative justices. In Employment Division v. Smith, the Court claimed the First Amendment is not violated when neutral, generally applicable laws conflict with religious practices. Justice Antonin Scalia, writing for the majority, said the Court had never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate. Allowing exceptions to every state law or regulation affecting religion, he wrote, “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind.”
That ruling motivated Congress to pass the Religious Freedom Restoration Act (RFRA), a federal law intended to prevent other federal laws from substantially burdening a person’s free exercise of religion. RFRA restored the prior standard of religious exemptions that existed before 1990. It was intended to apply to all branches of government, and both to federal and state law. But in 1997 in the case of City of Boerne v. Flores, the Supreme Court ruled the RFRA exceeded federal power when applied to state laws. In response to this ruling, some individual states passed state-level Religious Freedom Restoration Acts that apply to state governments and local municipalities.
California does not have a RFRA law, so the Supreme Court had to decide whether the California law had treated worship services neutrally (that is, similar to other relevant gatherings) or was being excessively burdensome.
Both sides of the court appear to have a reasonable argument. As Roberts said, “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.” Yet as Kavanaugh points out, a 25 percent occupancy cap is imposed on religious worship services but not imposed on those comparable secular businesses.
While states like California may not be intentionally discriminating against churches, their pandemic restriction policies have often been applied in a way that is inconsistent and less than neutral. As TGC Council member Russell Moore says, “Chief Justice Roberts is correct to say that a large gathering of people is not the same as a small business where people can socially distance one by one. And yet, in many states, that’s not where the distinction is being made. In some places, casinos are open while houses of worship are not. That is not sound public policy, and it sets a bad precedent.”
“States should set their policies according to the behaviors that can and cannot happen safely, the numbers of people that can be gathered, not on whether the assembly is a church or not a church, and they should apply those standards equally and neutrally,” Moore added. “This pandemic is a perilous time. We need to emerge from it with both our public safety and our First Amendment intact.”