Chief Justice Roberts wisely defers to California governor in church challenge 

Chief Justice Roberts wisely defers to California governor in church challenge 
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A Supreme Court order on May 29, issued just before the holiday of Pentecost, upheld an executive order by California Gov. Gavin NewsomGavin NewsomCalifornia governor Newsom signs bill extending family leave to small businesses California family frustrated that governor, Harris used fire-damaged property for 'photo opportunity' Pac-12 moves toward 'return to competition' after Big Ten announces resumption of football season 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 KaganDemocrats, advocates seethe over Florida voting rights ruling Supreme Court denies push to add Green Party candidates to Montana ballot Stakes high for Supreme Court as Trump battles for reelection 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 KavanaughProgressive group to spend M in ad campaign on Supreme Court vacancy Senate Republicans face tough decision on replacing Ginsburg Trump reacts to Ginsburg's death: 'An amazing woman who led an amazing life' MORE, for himself and Justices Neil GorsuchNeil GorsuchObama calls on Senate not to fill Ginsburg's vacancy until after election Trump reacts to Ginsburg's death: 'An amazing woman who led an amazing life' McConnell says Trump nominee to replace Ginsburg will get Senate vote MORE and Clarence ThomasClarence ThomasSenate Republicans face tough decision on replacing Ginsburg Renewed focus on Trump's Supreme Court list after Ginsburg's death Justice Ginsburg dies weeks before election MORE. Justice Samuel AlitoSamuel AlitoJustice Ginsburg dies weeks before election Trump's Supreme Court list reveals influence of Clarence Thomas Supreme Court deals blow to GOP in dispute over RI absentee ballots MORE joined the dissenters in the ruling, but not in the opinion itself.

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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.

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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.