Yes, states can limit how many people can gather in churches, right along with placing limitations on how many people can gather at concerts, theaters, and other places where crowds may gather and spread disease.
So say the four liberal justices of the U.S. Supreme Court and Chief Justice John Roberts in a ruling issued last night on a California Pentecostal Church’s emergency appeal of Governor Gavin Newsom’s order that churches restrict their indoor gatherings to 25% of capacity or 100 people, whichever is less. Chief Justice Roberts explains:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. 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. 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.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically ac-countable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “une-lected federal judiciary,” which lacks the background, com-petence, and expertise to assess public health and is not ac-countable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985) [Chief Justice John Roberts, South Bay United Pentecostal Church, et al., v. Gavin Newsom, Governor of California, et al., Supreme Court of the United States, 2020.05.29].
The public health precautions of California and other sensible states aren’t targeting or discriminating against religion. They aren’t stopping anyone from praying to or believing in the flying spaghetti monsters of their choice. Sensible states are targeting social events with a clear propensity for spreading coronavirus. The White House may be pressuring churches into reckless reopenings and redacting CDC guidance to downplay health risks and emphasize First Amendment claims, but the Supreme Court recognizes that states can balance freedom of religion with the urgent, practical need to prevent a pandemic from overwhelming their hospitals and killing their people.
Related Polling: The public is less split than the Supreme Court on restricting church services amidst pandemic. A University of Chicago Divinity School and AP-NORC Center for Public Affairs poll found at the beginning of this month that 48% of Americans support a complete ban on face-to-face church services and 42% support restrictions on church services to prevent contagion. The difference between believers and non-believers wasn’t as big as one might think: 57% of people not claiming a religious affiliation supported a total ban; 45% of believers took the same position. The radical fringe who want church with no restrictions numbered 10% among believers and 3% among non-believers.
This is akin to and no more dramatic than the fire marshall limiting the room capacity in meeting rooms in an effort to improve safety in the case of a fire.
A few quick observations about this decision.
First, it does not appear to be a full blown final opinion after completion of normal briefing and oral argument. Rather it is a summary decision merely denying emergency injunctive relief. It appears that no Petition for cert was even filed, nor any other document that would lead to full consideration of the case. As such, it is probably of extremely limited use as a precedent for future disputes.
Second, it appears the majority speaking through Roberts and the dissent speaking through Kavanaugh both agreed on the proper legal test, namely whether the restriction applies across the board to similarly situated secular institutions or singles out religion for unique treatment. The disagreement was about the factual background,
Roberts said the rule applied to similarly situated secular groups, such as “lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
Kavanaugh, on the other hand, said churches were singled out for different treatment, comparing the rules applicable to groups such as “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.”
This suggests that there is not great legal issue here at all, rather a mundane factual question about whether the rule applies to similarly situated groups or whether a church has been singled out.
Third, it is highly unusual for the SCOTUS to write opinions about, or even ever get involved in, factual disputes. The Court normally will only deal with questions of law where the facts are agreed upon by both sides and the dispute is whether the applicable legal rules are settled, or should be modified. Likewise, published opinions explaining the denial of emergency injunctive relief are rare
While the majority and dissenting opinions each expressly seems to suggest they agree upon an identical legal rule, but only disagree on the underlying facts, perhaps this implicitly raises a legal question about how to determine what constitutes a “similarly situated” secular group or institution when judging whether a church has been treated differently. In such a case the opinion might have value in convincing the Court to grant cert in a future case that expressly raises that legal issue.
Seems obvious to me , under this regime and court, churches get favored treatment over other similarly situated what evers.
Just found this and haven’t the time to read it now so i will post it here because it sounds like a fun time on the SPOTUS.
Roberts Upholds COVID-19 Restrictions on Churches, Scolds Kavanaugh
By MARK JOSEPH STERN
Thank for that link mfi. Stern generally seems to agree with my analysis, but clarifies that Roberts appears to have summarily rejected the legal issue I thought the case implied since Roberts declared that courts must defer to policy makers to decide which churches, groups and institutions are in fact similarly situated rather than have un-elected, and inadequately informed, judges second guess that decision.
Roberts’ position strikes me as much more conservative than Kavanaugh’s, especially considering the frequent claim that conservatives oppose so-called activist judges. Perhaps that is another reason explaining why Alito did not join Kavanaugh’s dissent, along with being uncomfortable with Stern’s observation about Kavanaugh’s somewhat dishonest description of reality.
Throughout all the Kennedy retires, Kavanaugh and Gorsuch replace, I have held just a little bit of conviction in my heart that Chief Justice Roberts would act like a man committed to the Constitution and particularly the First Amendment. Or maybe it was just a faint hope based on what, I don’t know. Probably on wishful thinking.
Kaveman seems to have an ongoing problem with reality, past and present.
Here’s some bad news. The only fellow out there who could hold a candle to Dr. McT and grudznick as a true scientist, Mr. Gibilisco, has passed on. Mr. Gibilisco lived here in the Black Hills, as you may know, and was a prolific author and teacher of many things #4Science.
Generally the federal courts must be defended from rank politicization. The right’s systemic Federalist Society ect. machine grooming and seating conservative judges has overwhelmed constitutional nomination, advice and consent processes. The rule of law is fragile. Recompense for Garland’s stolen seat must occur. A successful 2020 election will not be enough. ACS, (American Const. Society’s) Pres. Sen. Russ Feingold, Slate podcast “Amicus” interview (2.26.20). Kaveman-i like that.
And Citizens United must be overturned.