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Shelter In Place and Reopening Plan Litigation: SCOTUS Rejects Request for Judicial Intervention Regarding California’s Restrictions on Religious Services

The United States Supreme Court issued a rare late-night ruling in South Bay United Pentecostal Church v. Newsom on May 29, 2020, denying an emergency request from a mega-church in Chula Vista, California to stay Governor Newsom’s Executive Order and four-stage reopening plan. In-person religious services were initially barred and then numerically restricted. In a 5-4 decision, Justices Ginsburg, Breyer, Kagan and Sotomayor voted to deny the injunction but did not write an opinion. Chief Justice Roberts concurred in denying the injunction and filed a two-page opinion. Justice Kavanaugh filed a three-page dissenting opinion, which was joined by Justices Thomas and Gorsuch. Justice Alito also dissented but did not write an opinion.


1. Comparable Activities.  The different perspectives on what constitutes comparable secular activity as explained in Roberts’ concurring opinion versus Kavanaugh’s dissenting opinion indicates the central role this question will continue to play in these cases challenging COVID-19 restrictions.

2. Unlikely To Dissuade Plaintiffs.  Plaintiffs will likely continue to challenge restrictions on worship services because (1) the Court’s ruling only evaluated the availability of emergency injunction relief, (2) the ruling was a close 5-4 split decision and (3) the guidelines and rules in this nuanced area of law and policy continue to evolve. This case came to the Supreme Court as an emergency request to stay executive action so the Court’s finding that the plaintiffs did not meet the high bar for such an extraordinary request does not foreclose the possibility of plaintiffs eventually prevailing on the merits. The 5-4 balance could shift very quickly and plaintiffs are likely teeing up other cases for a return to SCOTUS.

3. Deference to Governmental Health and Safety Decisions.  Even though Roberts and Kavanuagh both recognize California’s compelling interest in preventing the spread of the coronavirus, they parted ways on the level of deference to afford policymakers when addressing this emergency. Roberts emphasizes that weighty decisions resting on medical science should be left to political officials, not an unelected federal judiciary, while the dissent views the orders as not narrowly tailored enough to achieve that interest. Moving forward, reopening decisions may be increasingly influenced by politics and economics rather than the scientific data and this in-turn may mean continued restrictions on worship services are more vulnerable to constitutional challenges.


In response to the COVID-19 pandemic, on March 19, 2020 Governor Newsom signed Executive Order N-33-20 that restricted gatherings other than for essential work or activities, including a prohibition on all in-person religious worship services. Prior to the pandemic, South Bay United Pentecostal Church held religious services for 200-300 persons on average, for three to five services per day. On May 8, South Bay Pentecostal filed a lawsuit against Governor Newsom, as well as local San Diego County officials who had imposed similar restrictions, on the basis that such restrictions violated the rights of Free Exercise, Free Assembly, Free Speech, among other constitutional rights. South Bay Pentecostal sought a Temporary Restraining Order barring enforcement of the restrictions, which the District Court denied. The Ninth Circuit also denied South Bay Pentecostal’s request for a stay pending appeal. On Memorial Day, Governor Newsom amended the shelter in place restrictions to allow in-person religious services if attendance is limited to 25% of building capacity or a maximum of 100 attendees. South Bay Pentecostal sought a stay from the U.S. Supreme Court, which the Court denied in a 5–4 ruling.


Comparable Secular Activities.  Roberts’ concurring opinion states that California’s guidelines “appear consistent” with the Free Exercise Clause of the First Amendment because “[s]imilar or more severe restrictions apply to comparable secular gatherings” which he specified as “including lectures, concerts, movie showings, spectator sports, and theatrical performances.” Roberts noted that the Order exempts or treats more leniently only dissimilar activities, such as grocery stores, banks, and laundromats. He explained that these are “dissimilar” to the religious services gatherings in question because they are activities “in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Deference to Governments During Emergencies.  Roberts noted that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” He focused on the “especially broad” latitude to be afforded to officials entrusted with protecting the health and safety of the people, particularly in times “fraught with medical and scientific uncertainties.” Those broad limits “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” However, it is also important to note that he stated the Order places “temporary” numerical restrictions on public gatherings to address the health emergency.


Comparable Secular Activities.  Justice Kavanaugh’s dissenting opinion contends that churches are the same as numerous named businesses and should be treated the same. His comparable secular businesses include factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. The dissent stated that these comparable businesses are not subject to the same 25% or 100 person attendance limit that is placed on religious services. By contrast, Roberts’ concurring opinion, the Ninth Circuit majority opinion, and the District Court’s ruling did not use these types of businesses as the point of comparison.  Instead, they looked to gatherings that had a communal aspect similar to religious services.

Deference to Governments During Emergencies.  Although Justice Kavanaugh states that California “undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens,” he states that the State’s Order is not narrowly tailored to achieve that interest – “What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.” In particular, Kavanaugh points out that the church has agreed to abide by the rules that apply to other comparable secular businesses, such as social distancing and hygiene. The dissenting opinion offers alternatives, including allowing religious gatherings without restrictions so long as they are subject to the same social distancing and other health requirements as other secular activities, or imposing reasonable occupancy caps across the board.


The government has restricted cherished gatherings, both religious and secular, in this emergency situation to help keep people safe and healthy during a global pandemic. The Supreme Court’s ruling in this case rejects plaintiffs’ attempts to undermine these measures. However, as the COVID-19 pandemic continues to unfold and restrictions are eased or modified, the dissenting opinion offers a cautionary note as to the challenges  faced to ensure the distinctions made in reopening plans continue to pass constitutional muster.