U.S. Supreme Court Overturns California’s Ban on Indoor Religious Services but Leaves Open Singing/Chanting Ban

In late Friday evening orders, the Supreme Court on February 5, 2021 issued rulings on applications for injunctive relief in both South Bay United Pentecostal Church, et al. v. Newsom, et al. and Harvest Rock Church, et al. v. Newsom, et al. In a partial victory for the church plaintiffs, the rulings allow for indoor religious services at up to 25% capacity, but SCOTUS did not stop the State’s ability to enforce the singing and chanting ban or the Tiers 2, 3, and 4 occupancy restrictions for indoor religious services under the State’s Blueprint for stopping the spread of COVID-19. Both orders issued limited temporary injunctive relief pending further decisions by the Ninth Circuit or the Supreme Court. South Bay United included several separate opinions, laying out patchwork guidance for lower courts and revealing significant divisions among the Justices. Harvest Rock reached the same conclusion without analysis.

What’s Next for Rulings on Tiers 1, 2, 3, and 4?
Although the injunctions in South Bay United and Harvest Rock are temporary, the procedural posture of these two cases means these orders may be SCOTUS’ last word on the Tier 1 occupancy restrictions before the State may lift them. The Court will be considering the petition for writ of certiorari by April 1, 2021 and, if it is granted, the matter will not be decided on the merits until after briefing by the parties and oral arguments which would push out a final decision until the fall of 2021 or later. However, in the meantime, the Court may have additional opportunities on an emergency basis to examine the singing and chanting ban along with the occupancy restrictions in Tiers 2, 3, and 4 because religious institutions are already moving forward in the district courts with challenges to the ban and occupancy restrictions.

Analysis of South Bay United Opinions

Majority Opinion

• The four concurring and dissenting opinions provide the only guidance, while the majority opinion simply lays out the Court’s order: the State and San Diego County are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship, but they may impose a 25% capacity restriction and enforce the singing and chanting ban. The order is without prejudice to the church’s right to submit additional evidence to the District Court in support of the challenge to the singing and chanting ban.

Concurring Opinions

• Chief Justice Roberts’ concurring opinion reflects the Court’s middle of the road approach. While Roberts notes that “federal courts owe significant deference to politically accountable officials” with expertise in public health, he states that courts are entrusted with protecting the people’s rights, including the right to free exercise. Roberts concludes that the State’s total ban on indoor worship “appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
• Justice Gorsuch’s concurring opinion, joined by Justices Thomas and Alito, states that California “so obviously targets religion for differential treatment” that the restrictions are subject to strict scrutiny analysis. The opinion explains that the State cannot pass this constitutional test because it cannot show that dangers posed by religious services (large number of people mixing, in close proximity, for extended periods, with singing) cannot be mitigated by less onerous restrictions such as plexiglass dividers or limiting the duration of indoor religious gatherings. The opinion notes that train stations, hair salons, and some retail have similar risk factors but are still allowed to operate with restrictions. Justice Gorsuch also notes the record was unclear as to whether the singing and chanting ban is generally applicable or if the State allows the entertainment industry an exception. Finally, Justice Gorsuch challenged the contention that any restrictions were “temporary” in light of the vaccinations that are now underway, arguing that the State has continued to move the goalposts such that the “restoration of liberty [is] just around the corner.”
• Justice Barrett’s concurring opinion agreed with Justice Gorsuch’s as to the capacity restrictions, but she notes the church failed to meet its burden with regard to the singing and chanting ban and therefore concurred in the denial of the injunction on that issue.

Dissenting Opinion

• Justice Kagan’s dissent, joined by Justices Breyer and Sotomayor, disagrees with the majority on almost every issue, starting with the standard of review. Kagan notes that the State had demonstrated the restrictions were neutral, because neutrality requires only that similar activity is treated similarly, and the Blueprint treats religious services like other activity where “large groups of people [come together] in close proximity for extended periods of time,” such as political meetings, going to the movies, or dining at a restaurant. Justice Kagan harshly criticizes the majority opinion for its lack of explanation, noting that the opinion “leaves state policymakers adrift, in California and elsewhere” because there is no explanation as to whether the injunction entered is based on the record evidence or “naked judicial instinct.”

Looking Ahead
The Court’s rulings in South Bay United and Harvest Rock follow its decision in a case late last year from New York which barred the State of New York from enforcing certain limits on attendance at churches and synagogues. In a 5-4 decision just before midnight on Thanksgiving Eve, the Court issued its ruling in Roman Catholic Diocese v. Cuomo which stayed the enforcement of restrictions on indoor worship services that capped attendance at 10 or 25 persons in designated geographic zones. The rulings in South Bay United, Harvest Rock, and Roman Catholic Diocese now set a higher bar in order for pandemic-related restrictions on worship services to survive constitutional First Amendment analysis.

On Saturday, February 6, 2021, Governor Newsom’s office issued revised guidelines for indoor church services reflecting the Supreme Court’s rulings in South Bay United and Harvest Rock. The new interim State guidelines limit attendance at indoor services in areas with widespread or substantial virus spread to 25% of a building’s capacity. Indoor services in areas with moderate to minimum spread are limited to 50% capacity. Before the ruling, indoor worship services were banned in purple-tiered counties — those deemed to be at widespread risk of coronavirus transmission.