The Supreme Court rejected legal challenges to pandemic-related restrictions on religious assemblies in California and Illinois in a pair of late Friday orders.
Two Christian churches, one in San Diego and one in Chicago, asked the justices to block state rules that set limits on attendance at liturgies, even as both states have made concessions to houses of worship in recent days. Both churches asked the Court to act as quickly as possible so that they could resume regular attendance and warned that houses of worship around the country plan to revert to regularly scheduled liturgies this weekend.
Chief Justice John Roberts joined with the liberal bloc on a 5-4 vote to reject the challenge from California. The Illinois church’s appeal was rejected without dissent. In a rare move, Roberts explained his rationale in a short separate opinion.
"Our Constitution principally entrusts ‘the safety and the health of the people’ to the politically accountable officials of the states," Roberts wrote in a separate opinion. "When those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health."
President Donald Trump, elected in part on the strength of his support from religious believers, pressed local authorities to accommodate houses of worship even before the California and Illinois churches turned to the Supreme Court. The Centers for Disease Control released new reopening guidelines for houses of worship on May 22, after the president deemed religious spaces "essential" during a press conference. Attorney General William Barr issued a memo in April directing U.S. attorneys and a senior Justice Department official to monitor state and local pandemic responses for violations of the First Amendment.
The disputes reached the Court as the justices weigh other pressing questions concerning religion and public life. By summer, the justices will decide on the scope of a religious exemption from employment nondiscrimination laws, the Trump administration’s sweeping conscience exemption from the Obamacare birth control mandate, and state tax credit programs that support church-affiliated schools.
There are no state level prohibitions on worship in 30 states, according to the Becket Fund for Religious Liberty. Twenty states do have such restrictions.
In California, South Bay Pentecostal Church is challenging guidance Gov. Gavin. Newsom (D) issued Monday that allows worship to resume at 25 percent sanctuary capacity or with a maximum of 100 congregants, whichever is lower. The state says the new rules are a reasonable accommodation, particularly since it is in the early phases of its reopening plan. The church says it's unfairly being held to a higher standard than other sectors of the population.
"A review of California’s sector-specific guidelines shows that the only two industries with percentage caps are retail and houses of worship and retail is set at a 50% cap," a supplement to the church’s application reads. "Offices, manufacturing, food packaging, museums, and every other sector has no percentage cap."
The church also notes that California’s reopening plan contains numerous exceptions. The Court tolerates state rules that interfere with religion, but only if they are neutral and apply to everyone.
Illinois governor J.B. Pritzker was enforcing a ban on assemblies over 10 persons until Thursday, when a state agency relaxed the restriction. The Elim Romanian Pentecostal Church in Chicago nonetheless asked the justices to bar reversion to the old policy.
Lawyers for the state countered that worship services are an especially dangerous vector for infection. They feature large numbers of people in a confined space for an extended period, during which time there is speaking or singing, thereby spreading respiratory droplets that could contain the virus. The lawyers pointed to a southern Illinois county that experienced a surge in coronavirus cases, most of which were connected to a local church.
Courts have generally taken an unassuming approach to the coronavirus pandemic. In a foundational 1905 case, the Supreme Court recognized that local officials may take such steps "as the safety of the general public may demand" during a public health crisis. But as infections subside, judges are likely to take a more assertive role. Questions over restrictions on worship have already divided the federal courts.
In a short, unsigned opinion, the divided Ninth Circuit panel said it was satisfied with California’s guidance. The decision invoked the famous construction of Justice Robert Jackson, who warned that the Constitution is not a "suicide pact." Judge Daniel Collins, a Trump appointee, dissented.
The Sixth U.S. Circuit Court of Appeals went the other way, and allowed a Baptist church in Kentucky to hold drive-thru services.
"Restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom," the unsigned decision reads. "Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew?"
"While the law may take periodic naps during a pandemic, we will not let it sleep through one," the decision adds.
Justice Brett Kavanaugh endorsed that view in a short dissent in the California case. Justices Clarence Thomas and Neil Gorsuch joined the Kavanaugh opinion.
"California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The state cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings,’" he wrote, citing the Sixth Circuit opinion.
The Supreme Court generally takes up legal questions over which multiple courts disagree.
The cases are No. 19A1044 South Bay United Pentecostal Church v. Newsom and No. 19A1046 Elim Romanian Pentecostal Church v. Pritzker.