A Supreme Court order on May 29, issued just before the holiday of Pentecost, upheld an executive order by California Gov. Gavin NewsomGavin NewsomDon't break California's recall by 'fixing' it Equilibrium/Sustainability — Presented by Altria — Walrus detectives: Scientists recruit public to spot mammal from space Top Latino group endorses Padilla for full Senate term MORE that limits occupancy of houses of worship under the state’s COVID-19 reopening plan to 100 people or 25 percent occupancy. A San Diego-area Pentecostal church challenged the order as a violation of religious free exercise.
It is one of a number of cases around the nation brought against state executive orders that do not allow special exceptions for houses of worship, against a backdrop of troubling evidence of high risk of transmission of COVID-19 through just the type of activities that make in-person religious services so comforting and intimate — their substantial duration and the singing, close physical connection, shared collection plates and rituals involving chalices, washing implements and holy scrolls.
The ruling came as an order from the justice assigned to the Ninth Circuit, containing California, Elena KaganElena KaganSupreme Court considers Kentucky AG's power to defend abortion restriction Alito bristles over criticism of Supreme Court's 'shadow docket' North Carolina voting rights ruling offers a model of anti-racist jurisprudence MORE. Justice Kagan did not write for the majority at all; Chief Justice John Roberts Jr. wrote a short concurrence. The only other opinion is a dissent by Justice Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE, for himself and Justices Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE and Clarence ThomasClarence ThomasLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Two conservatives resign from Biden's Supreme Court commission Sotomayor says recent changes were made because male justices interrupted female colleagues MORE. Justice Samuel AlitoSamuel AlitoLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Sen. Whitehouse blasts Alito speech: 'You have fouled your nest, not us' MORE joined the dissenters in the ruling, but not in the opinion itself.
The brevity belies the importance of the opinion — the first to reach the court on the scope of governors’ powers to issue executive orders during the pandemic. It signals that governors and state public health agencies likely will win cases. While the court has upheld rules of neutral application in the context of free exercise cases, religious expression historically has received special deference from the court. Protection of the exercise of religious expression has been upheld even in the context of jailhouses and military service. This decision makes it clear that the court, or at least five members of it, accord very significant deference to governors and public health authorities in the context of the pandemic.
The chief justice’s concurrence is completely consistent with past Supreme Court decisions on the centrality of executive authority in response to public health emergencies and other disasters, and is a vote of confidence in the competence that governors in many states, both Democrats and Republicans, have shown in leading the public health response to COVID-19.
This means that other challenges — from recreational facilities, personal service businesses and business associations — are likely to be rejected as well. What remains to be seen is how closely the justices will scrutinize the various states’ authorizing provisions for the executive orders themselves, and how rigidly they will interpret the duration and scope of those authorizations, the requirements they may include for consultation with state legislatures, or adherence to state administrative procedure requirements.
Chief Justice Roberts’ concurrence was terse, at just over two pages. He noted that the restrictions on church services are more like those the executive order imposes on theatrical performances and movie theaters, where people gather in close proximity for extended periods of time. By contrast, religious services are dissimilar to grocery shopping and other commercial interactions, which are brief and transient, involving minimal contact between individuals. He specifically defers to “politically accountable officials” to make assessments on areas “fraught with medical and scientific uncertainty” where there are “changing facts on the ground.”
Justice Kavanaugh’s dissent notes the special deference accorded to religious observance and restates that the state must have a “compelling governmental interest” and create only restrictions “narrowly tailored” to achieve that interest. He reasons that worship services are treated more restrictively under the governor’s order than “comparable secular businesses” and so it “indisputably discriminates against religion” — language that the chief justice specifically disputes in the concluding paragraph of his concurrence.
A review of Gov. Newsom’s order on churches certainly does not reflect arbitrariness. The 13-page guidelines created by his Department of Public Health are detailed, refer frequently to Centers for Disease Control and Prevention (CDC) guidelines, and were drafted with input from interfaith leaders. In some ways they give houses of worship a great deal of discretion; other than the density guidelines, they leave most matters to their judgment, while encouraging a continuation of remote services for three more weeks. This is distinct from the specific directives for other sectors and the detailed executive orders in states such as North Carolina and Ohio.
The chief justice’s commonsense approach gives a nod to several instances of “super spread” of COVID-19 at church services in Arkansas, California and Kentucky. In Washington, where Justice Roberts works, the revelation that its pastor tested positive for the virus led dozens of parishioners of Christ Church to voluntarily quarantine themselves in March, early in the pandemic’s U.S. spread. This factual backdrop, not cited by the dissent, undermines with facts the claim that church services and grocery runs are indistinguishable as potential sources of infection.
The dissenting opinion also fails to address what appears to be another key factual issue: how much of a burden the California restriction imposes. Does the South Bay United Pentecostal Church host more than 100 people on Pentecost Sunday? Could it have staggered services to accommodate more? Without answers, the position of the dissent seems more polemical than practical.
Pentecost has come and gone as of the writing of this post, and the governor’s office in California — like most state and local governments — is working with businesses and houses of worship to open them as quickly as is consistent with safety.
The Supreme Court’s guidance on who leads in this public health response is good news and allows communities to get back to the business at hand. Rather than retreating to polarizing ideological positions, faith leaders at churches such as South Bay should engage in a dialogue based on goodwill with government leaders who are pledged to preserve life and health, a value that U.S. houses of worship surely share.
Meryl J. Chertoff is the executive director of Georgetown Project on State and Local Government Policy and Law and an adjunct professor of law at Georgetown Law.