J. Scott Applewhite/AP
Updated at 4:58 p.m. ET
A deeply divided Supreme Court doubled down on religious rights late Friday night, ruling that California can no longer continue with a ban on indoor church services put in place to fight to the coronavirus pandemic. But the court said that the state, for now, can keep in place restrictions on singing and chanting inside.
The two cases at the center of Friday’s ruling marked a test of how far states can go to safeguard public health before running afoul of constitutional protections for the free exercise of religion. In response to suits brought by the South Bay United Pentecostal Church in Chula Vista and the Harvest Rock Church in Pasadena, the court said California cannot bar in-person services altogether, but can limit attendance to 25% of capacity.
Last year the high court, by a 5-to-4 vote, upheld such bans in California and elsewhere. But with the arrival of new Justice Amy Coney Barrett in place of the late Justice Ruth Bader Ginsburg, the balance of power on the question switched, and this latest order is fresh evidence of the court’s willingness to second-guess both epidemiologists and elected officials who are fighting a once-in-a-century pandemic when it comes to questions of religious liberty.
The churches argued that California violated their religious rights when the state moved last year to place limits on attendance at in-person worship services based on COVID-19 infection rates. In the hardest-hit areas of the state, in-person services were put on hold completely. So too was singing and chanting inside, given that the coronavirus is not only more transmissible in enclosed spaces, but that singing releases tiny droplets that carry the virus through the air.
Though the conservative wing of the court prevailed decisively in the case Friday night, it was deeply split, with the conservative justices filing four separate opinions. In a concurring opinion, Chief Justice John Roberts wrote that federal courts owe “significant deference” to state officials when it comes to matters of public health, but he said such deference can only go so far.
“The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework,” wrote Roberts. “At the same time, 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.”
The chief justice’s opinion marked a middle ground of sorts among the court’s conservatives. Justices Neil Gorsuch and Clarence Thomas said they would have lifted California’s restrictions in full. While acknowledging that the state has a “compelling interest” in reducing the spread of COVID-19, they said California had effectively given preferential treatment to “lucrative industries” such as the film industry, adding that the state had “openly imposed more stringent regulations on religious institutions than on many businesses.”
“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,” they wrote in an opinion that was joined by Justice Samuel Alito.
Justice Amy Coney Barrett, in her first signed opinion since joining the court in October, focused on the state’s restrictions on singing and chanting. In an opinion joined by Justice Brett Kavanaugh, Barrett said that it was up to churches to demonstrate that they were entitled to relief from the singing ban, but that in this case, they had not. Still, she said, it remains unsettled as to whether the ban applies evenly across the board in California or if it favors certain sectors.
“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral,” Barrett said.
Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan said they would have left California’s restrictions in place. In a stinging dissent for the three, Kagan noted that none of the justices is a scientist, and she accused the majority of substituting its own judgment for the epidemiologists and elected officials who are “desperately trying to slow the spread of a deadly disease.” Kagan disputed the notion that the state is somehow treating religious institutions worse than secular entities. The only secular conduct the state treats better, she said, “is the kind that its experts have found does not imperil” the battle against the pandemic.
“I cannot imagine that any of us [on the court] has delved into the scientific research on how COVID spreads, or studied the strategies for containing it,” she said. “So it is alarming that the court second guesses the judgments of expert officials and displaces their conclusions with its own. … In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.”
Friday’s orders seemed to further cement a shift in the court’s view on the issue following the death of Justice Ruth Bader Ginsburg. Twice before Ginsburg’s death in September, the court voted 5-4 to allow restrictions on attendance at church services put in place by California and Nevada, with Chief Justice Roberts joining the court’s liberal members in both cases. In November, with Barrett on the court, the justices ruled 5-4 to block New York from enforcing strict limits on attendance limits on places of worship in coronavirus hot spots.