California has released new guidelines that allow houses of worship to reopen while minimizing the spread of Pandemic Protocol. But some churches are in no rush to resume in-person services that require masks, social distancing and frequent cleaning. (May 27)
WASHINGTON – A deeply divided Supreme Court refused Friday night to allow churches in California and Illinois to reopen amid the Pandemic Protocol pandemic with more worshippers than state plans permit.
Chief Justice John Roberts, who cast the deciding vote in the more consequential California case announced just before midnight, said choosing when to lift restrictions during a pandemic is the business of elected officials, not unelected judges. He was joined in the vote by the court’s four liberal justices.
Roberts, the only one of the five to explain his vote, compared in-person church services to other forms of assembly. His conservative colleagues who dissented compared the services to secular businesses.
“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment,” Roberts wrote. “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.”
Writing for three of the four conservative justices who dissented, Associate Justice Brett Kavanaugh said California’s current 25% occupancy limit on churches amounted to “discrimination against religious worship services.”
“The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries,” Kavanaugh wrote.
The legal battle reached the nation’s highest court days before Pentecost Sunday, when churches that have been restricted to virtual or drive-by services since before Easter are eager to greet congregants.
In the California case, the court sided with Gov. Gavin Newsom’s decision to limit in-church gatherings to 25% of capacity, and no more than 100 people.
In a second, separate case arising in Illinois, the justices earlier denied two Romanian American churches’ petition because Gov. J.P. Pritzker lifted his state’s restrictions Friday, making the complaint essentially moot. The court said the churches could file “a new motion for appropriate relief if circumstances warrant.”
The religious disputes over governors’ reopening plans are most heated in states that impose limits on religious gatherings. While 30 states no longer have prohibitions, 20 and the District of Columbia impose restrictions, according to the Becket Fund for Religious Liberty. They are most severe in California, Maine, Nevada, New Hampshire, New York, Oregon, Rhode Island and Washington.
President Donald Trump, Vice President Mike Pence and many religious leaders have demanded that state and local governments treat churches the same as most businesses. Last week, Trump labeled churches, synagogues and mosques “essential places that provide essential services.”
But some states and public health authorities, including the Centers for Disease Control and Prevention, have linked religious services to outbreaks of COVID-19. In one example, the CDC said 38% of those attending a rural Arkansas church in early March caught the virus, resulting in four deaths.
The churches have become the latest protesters against strict state Pandemic Protocol restrictions. Legal battles have stretched from California to Virginia and from Minnesota to Mississippi.
The petitions that reached the high court came from a Pentecostal church in southern California and two Romanian American churches in Illinois. In California, Gov. Gavin Newsom retreated during the dispute and agreed to allow churches to reopen at 25% capacity, with a limit of 100 parishioners. In Illinois, Pritzker’s reopening plan initially carried a 10-person limit.
“With each passing Sunday, churches are suffering under the yoke of the governor’s unconstitutional orders prohibiting churches from freely exercising their sincerely held religious beliefs requiring assembling themselves together to worship God,” lawyers for the Illinois churches had argued in court papers.
Illinois noted in response that its strict limit was expiring Friday, to be followed by no mandatory restrictions but with public health guidance about best practices. For that reason, the attorney general’s office said, the churches’ challenge was moot.
In the California case, the South Bay United Pentecostal Church warned in court papers that planned church reopenings in defiance of state orders could lead to “widespread civil unrest” and a “constitutional crisis.”
But the state countered that its reopening guidelines were measured in light of the pandemic’s risk to public health.
“When the attendance restriction proves unnecessary, the state will lift it or loosen it,” the attorney general’s office said in court papers. “In light of the tremendous uncertainty continuing to surround this new and deadly virus, however, it would be rash to do so today.”
En route to the Supreme Court, federal district and appeals court judges ruled against the churches in both states. The U.S. Court of Appeals for the 9th Circuit noted that the Pandemic Protocol is “a highly contagious and often fatal disease for which there presently is no known cure.”
The Supreme Court’s slim conservative majority, with Roberts in agreement, has come down on the side of religious liberty consistently in recent years. In the next few weeks, the high court will decide if state funds can be used to help pay religious school tuition, if employers with religious or moral objections can refuse to offer insurance coverage for contraceptives and if religious employers can sidestep job discrimination laws.
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