There are at least two cases in which we may get rulings soon from the U.S. Supreme Court on issues of religious liberty in the age of lockdown.
Both cases allege that religious groups are being treated more harshly than secular businesses and groups. This type of disparate treatment has been at issue in many lower court cases, but now cases from California and Illinois have emergency motions for injunctive relief submitted to the Supreme Court, with responses due May 28.
I would not be surprised if one or more of these cases resulted in SCOTUS action because they are fairly narrow. They do not challenge the state government’s ability to address a pandemic, they simply ask for religious groups to be treated equally as secular groups.
The 9th Circuit decision was split, with a lengthy dissent which would have granted an injunction.
Does California’s four stage Reopening Plan, which permits manufacturing, warehousing, retail, offices, seated dining at restaurants, and schools to reopen, but not places of worship, violate the Free Exercise clause of the First Amendment to the U.S. Constitution?
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Plaintiffs’ applied for injunction concerns a series of “Stay-At-Home” Orders issued by the State of California and the County of San Diego, as most recently amended on May 7 and 10, 2020, as part of an effort to curb the COVID-19 pandemic.
Plaintiffs’ application is not about whether state governments have a compelling interest in curbing pandemics. They do. Nor is it about whether state governments may limit some personal liberties. They may. Nor is it about the constitutionality of California’s prior executive orders issued in March that permitted “life-sustaining” businesses to stay open.
No, this application is about California’s modifications to its Stay-At-Home order made by California Governor Newsom’s May 7, 2020, “Resilience Roadmap,” and the County of San Diego’s May 10, 2020, order implementing it. (generally, the “Reopening Plan”). 3ER559–97.1 Under the Reopening Plan, all manufacturing and logistics (warehousing) facilities opened in full on Friday, May 8 (Stage 2a). All retail, for curbside pickup only, also opened on that day. (Stage 2a). Individual counties could open further after certifying to the state that certain statistical benchmarks were met. As a result, on May 20 in San Diego, offices, seated dining at restaurants, visiting retail, and schools opened (Stage 2b). 9th Cir. Dkt. 14, at 17.2
Places of worship will open sometime after that, alongside movie theaters as well as hair and nail salons, and tattoo parlors (Stage 3). 3ER568–69. In late April, Governor Newsom said that places of worship were “months” away from opening. 3ER325. Then, in early May he indicated that they would be able to open in early June. 9th Cir. Dkt. 20, at 2–3. But most recently, he announced that on Monday, May 25, California will release further expedited plans. 9th Cir. Dkt. 27, at 3–4. It is unclear whether places of worship will be able to immediately open on that day, or soon thereafter. In any event, every day that passes Plaintiffs are irreparably harmed, and there is a risk that restrictions will be reimposed in the fall if the virus resurfaces.
There has been a Notice filed by County of San Diego of a new County Order. I’m not sure how this impacts the legal case.
The Application for Injunctive Relief provides in part:
RELIEF REQUESTED AND GROUNDS FOR EMERGENCY
ERPC and Logos (collectively, “Churches”), pursuant to Sup. Ct. Rules 20, 22 and 23, and 28 U.S.C. § 1651, request an emergency writ of injunction before this Sunday, May 31—the Christian holy day of Pentecost—against enforcement of Governor Pritzker’s stay-at-home executive orders and Reopen Illinois plan (collectively, the “Orders”) which impose a unique 10-person limit on religious worship services that is not imposed on customers or employees of ‘big box’ retail stores, liquor stores, restaurants, office buildings, warehouses, factories, or other businesses and activities which, like worship services, have been deemed “Essential” by Governor Pritzker. The Orders’ arbitrary and discriminatory treatment of houses of worship cannot satisfy strict scrutiny, and therefore violate Churches’ rights under, inter alia, the Free Exercise and Establishment Clauses of the First Amendment to the United States Constitution, the Religious Land Use and Institutionalized Persons Act (RLUIPA), and the Illinois Religious Freedom Restoration Act (IRFRA), and Churches are suffering irreparable injury each day the Orders remain enforceable.
Local officials have enforced the Orders against Churches with criminal citations and notices to appear for hearing, and have threatened additional enforcement, even though Churches have demonstrably employed social distancing and sanitization protocols exceeding the requirements imposed on other “Essential” activities not subject to numerical limits….
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