The Supreme Court Stands Up Again for Worship During the Pandemic
Gavin Newsom’s bad 2021 got worse late last week when the U.S. Supreme Court, in South Bay United Pentecostal Church v. Newsom, issued emergency relief suspending California’s months-long ban on indoor religious services for violating the First Amendment. California’s ban was the most sweeping in the country, and the Court was right to stand up for the right of Californians to worship. The federal courts have mostly shown the proper respect, throughout the COVID-19 pandemic, for allowing public-health decisions to be made primarily by state and local elected officials. States and local governments have broad police powers, are responsive to local conditions, are accountable directly to voters, and are charged with evaluating the advice of scientific experts and balancing that advice against other vital public interests such as individual and community liberty, equality, commerce, education, law enforcement, and mental health. Deference to democracy, however, is never a blank check to override explicit constitutional guarantees set forth in the Bill of Rights. Last we checked, the free exercise of religion is still one of those. Under longstanding precedent, states typically may enact religiously neutral, generally applicable laws without running afoul of the First Amendment, even if those laws sometimes burden religious practices. But if a law that burdens religion is not generally applicable, it must satisfy “strict scrutiny,” i.e., it must be narrowly tailored to promote a compelling government interest using the least restrictive means available. Newsom’s ban on all indoor worship gatherings of any size or spacing, while allowing Hollywood to continue indoor film and television production, is neither generally applicable nor narrowly tailored. California argued that the state’s good weather made it feasible for services to be held outdoors. Never mind that the ban applied even during winter storms over the Christmas holidays, or that not every faith considers outdoor services to be an adequate substitute for gatherings in their sacred spaces. The state argued that worship is problematic because it may involve singing (which it banned separately), never mind that the entertainment industry appeared not to fear enforcement of the singing ban. All of this was too much even for Chief Justice John Roberts, who joined the ruling against Newsom after having dissented when the Court struck down Andrew Cuomo’s church-capacity restrictions in November. Roberts, who often decides whether to defer to the elected branches based on whether he believes they have done their homework, found Newsom’s ban too blunt an instrument: “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.” By contrast, the Court’s three dissenting liberals, led by Justice Elena Kagan, wrapped themselves in the mantle of “science-based policy,” but without much regard for either the analytical rigor of that policy or the value of the core constitutional liberty at stake. We share Justice Neil Gorsuch’s concern that “it is too late . . . to defend extreme measures with claims of temporary exigency” where states have been “playing favorites” and “moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner.” Revisiting those measures as more of the public is vaccinated should mostly be the job of the political branches, but there is a role for the courts where the Constitution’s fundamental guarantees are at issue. The Court may not be done protecting worshippers from Newsom. Justice Gorsuch, who would have overturned the singing ban as well, observed, “Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.” Four other justices signaled interest in revisiting the singing ban, with Justices Amy Coney Barrett and Brett Kavanaugh asking for more evidence of whether the ban discriminated against religious singing: “If a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.” It is heartening, in a climate of elite skepticism of religious liberty, to see the Court not only reach the right results but demonstrate a vigorous commitment to revisiting the question as many times as is necessary to get the point across. We hope Governor Newsom and other California policy-makers are paying attention.