In a multi-split decision made public late Friday, the Supreme Court partially struck down California’s discriminatory anti-Covid-19 regulations against church worship gatherings.
A program is almost necessary to follow all of the concurrences, exceptions and dissents in the decision in the case of South Bay United Pentecostal Church, Et. Al., v. Gavin Newsom, Governor of California, Et. Al.
The petitioners, a group of California churches, had asked the Supreme Court to declare all of California Gov. Newsom’s regulations, which effectively banned worship services in the Tier 1 areas of the Golden State that have been most affected by the Covid-19 Pandemic.
But the court majority agreed only to strike down the Tier 1 worship service ban included in Newsom’s strictest-in-the-nation regulations on worship services. The count on this point was 6-3.
For a variety of reasons expressed in multiple separate explanations, the Justices declined, for now, to put an end to Newsom’s detailed restrictions on singing, chanting (6-3) and congregational gathering sizes (5-4).
Only two of the Justices — Clarence Thomas and Neil Gorsuch — wanted to strike down Newsom’s regulations in full. In what likely surprises or shocks many supporters of Justice Amy Coney Barrett, the newest Justice, a conservative Catholic, did not side with Thomas and Gorsuch.
Instead, Barrett lined up with Justice Bret Kavanaugh in what appears to be the middle ground of the overall decision, saying she supported ending the Tier 1 ban, but not the rest of the requested relief, pending further evidence or demonstration.
“In what likely surprises or shocks many supporters of Justice Amy Coney Barrett, the newest Justice, a conservative Catholic, did not side with Thomas and Gorsuch.”
“The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record,” Barrett wrote in her concurrence.
“As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review).
“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue.
“As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.”
Justice Alito agreed with Thomas and Gorsuch but reserved a 30-day period in which California officials would have an opportunity to demonstrate “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 maintained his previous position that effectively requires the Justices to avoid second-guessing politically accountable officials like Newsom, saying “federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health.’”
“Federal courts owe significant deference to politically accountable officials with the ‘background, competence, and expertise to assess public health.'”
Roberts, however, did point out that “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.” That statement may be a signal by Roberts to the more conservative Justices that he remains persuadable on the larger issues.
Three liberal justices – Elena Kagan, Stephen Breyer and Sonia Sottomayor — summarized their dissent by noting:
“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.”
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