Worshippers at South Bay United Pentecostal Church
The United States Supreme Court has enjoined California Governor Gavin Newsom's Executive Order barring indoor worship services, but has not blocked the 25% capacity limits. Remarkably the majority cites no record evidence of opinions by epidemiologists or infectious disease experts who differ with the judgment of those on whom the California Governor relies.
Justices Thomas, Alito, and Gorsuch would have gone further.
Justice Barrett, joined by Brett Kavanaugh, agreed tentatively with the ban on singing.
Justice Kagan, writing for herself and Justices Breyer and Sotomayor, dissented vigorously. Her opinion begins with a strong statement of deference to state authority, particularly when based on expert opinion:
Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the State’s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.
SOUTH BAY UNITED PENTECOSTAL CHURCH,
ET AL., v. GAVIN NEWSOM, GOVERNOR OF
CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[February 5, 2021]
The application for injunctive relief presented to JUSTICE
KAGAN and by her referred to the Court is granted in part.
Respondents are enjoined from enforcing the Blueprint’s
Tier 1 prohibition on indoor worship services against the
applicants pending disposition of the petition for a writ of
certiorari. The application is denied with respect to the percentage capacity limitations, and respondents are not enjoined from imposing a 25% capacity limitation on indoor
worship services in Tier 1. The application is denied with
respect to the prohibition on singing and chanting during
indoor services. This order is without prejudice to the applicants presenting new evidence to the District Court that
the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner. Should the petition for a writ of
certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is
granted, the order shall terminate upon the sending down
of the judgment of this Court.
JUSTICE THOMAS and JUSTICE GORSUCH would grant the
application in full.
JUSTICE ALITO would grant the application with respect
to all of the capacity restrictions on indoor worship services
and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor
singing and chanting. JUSTICE ALITO would have the stay
lift in 30 days unless the State demonstrates clearly that
nothing short of those measures will reduce the community
spread of COVID–19 at indoor religious gatherings to the
same extent as do the restrictions the State enforces with
respect to other activities it classifies as essential.
CHIEF JUSTICE ROBERTS, concurring in the partial grant
of application for injunctive relief.
As I explained the last time the Court considered this
evolving case, federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.” South Bay
United Pentecostal Church v. Newsom, 590 U. S. ___, ___
(2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2). 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.
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.
I adhere to the view that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States.” Ibid. (internal
quotation marks and alteration omitted). But the Constitution also entrusts the protection of the people’s rights to
the Judiciary—not despite judges being shielded by life tenure, see post, at 6 (KAGAN, J., dissenting), but because they
are. Deference, though broad, has its limits.
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