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Religious Liberty Lockdown Cases Reach SCOTUS

Religious Liberty Lockdown Cases Reach SCOTUS

The issue in each is narrow: May a State treat religious groups more harshly than secular groups in implementing pandemic restrictions?

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.

South Bay United Pentecostal Church v. Gavin Newsom

The 9th Circuit decision was split, with a lengthy dissent which would have granted an injunction.

The Application for Injunctive Relief (Supplement here) provides in part:


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?

* * *


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.

Elim Romanian Pentecostal Church v. J. B. Pritzker

The Application for Injunctive Relief provides in part:


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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The 2 little Shrimps in the middle of the back row are the problem.


UnCivilServant | May 27, 2020 at 9:36 pm

So, freedom of association is still a dead letter then.

They should leave the blue states and go somewhere in “flyover” where they are wanted and appreciated.

Let my people go.

Besides, they won’t like the next few plagues that hit the blue targets.

These cases leave me feeling conflicted. Not about the ruling from SCOTUS but reason behind the ruling.

My inner optimist tells me SCOTUS will uphold essential liberties for all the right reasons.

My inner cynic tells me SCOTUS will do so not because that is the clear ruling to make based upon our constitution and precedent, but because if they refuse the American People might just recognize that their liberties have been voided and rise up in opposition.

    UnCivilServant in reply to CommoChief. | May 27, 2020 at 9:45 pm

    Rather than go “No, you never had the authority to do this” the court always hems and haws and finds the smallest quibble by which it can avoid actually ruling on the meat of anything.

      Milhouse in reply to UnCivilServant. | May 28, 2020 at 1:49 am

      That’s what they’re supposed to do. The doctrine of constitutional avoidance requires it.

        UnCivilServant in reply to Milhouse. | May 28, 2020 at 6:22 am

        So which article is this doctrine outlined in? Oh wait, it was a rule the court wrote for itself to avoid addressing the root issues.

    Olinser in reply to CommoChief. | May 27, 2020 at 10:18 pm


    As long as they abide by the same restrictions as the businesses allowed to open, there is ABSOLUTELY ZERO legal justification to keep them closed.

    This should be one of the easiest 9-0 decisions they’ve ever faced. There is NO legal reason that churches have to close when they are granting countless exemptions for non-essential businesses.

    But given the liberals are ludicrously biased against religion, I fully expect this to be probably a 6-3.

thad_the_man | May 27, 2020 at 9:57 pm

I understand that SCOTUS now live streams audio from oral arguments. If so please let us know when they are scheduled.

No, no, a thousand times no

I wonder what would have happened if one of the religious institutions had been a Mosque.

    JOHN B in reply to CKYoung. | May 27, 2020 at 10:59 pm

    You have your answer. The riots in Minneapolis have hundreds or thousands of people ignoring social distancing rules (while they assault people and loot stores, by the way) and no one in the mainstream media is concerned that they might spread the virus.

    Now if they were peacefully going to church-now that is a problem and they will be arrested ot fined.

      The Friendly Grizzly in reply to JOHN B. | May 28, 2020 at 11:27 am

      The police aren’t doing much, either. It is easier to go to law abiding parts of town and harass people not wearing masks, or sitting closer than six feet from one another on their own front porches.l

    Milhouse in reply to CKYoung. | May 28, 2020 at 1:53 am

    Exactly the same would have happened with a mosque. I challenge you to cite even one case, anywhere in the USA, of a government entity treating mosques more favorably than other houses of worship. It just doesn’t happen. It’s a figment of certain right-wing bloggers’ imaginations. What they’re really complaining about is mosques getting the same treatment as Xian churches.

      CKYoung in reply to Milhouse. | May 28, 2020 at 4:02 am

      Let’s play “Spot the Ad Hominem.”

      “Right-wing bloggers'”

      We have a winner.

      “And just because it’s a theme song doesn’t make it not true.” -Lincoln Oziris (Kirk Lazurus/RDJr.)

      If the SCOTUS did not harbor blatantly political animals versus Constitutional Adherents, my question would be moot, IMO. But who am I, except another “Right-Wing blogger I suppose.”

        Milhouse in reply to CKYoung. | May 28, 2020 at 7:47 am

        Identifying who it is that tells a lie is not an ad hominem. It’s a lie because it is one, not because of who tells it. You still can’t come up with even one example of a government entity in the USA treating Islam better than other religions.

      Subotai Bahadur in reply to Milhouse. | May 28, 2020 at 3:58 pm

      Had to delay posting this by an hour because I had to be somewhere, but in reference to catering to Muslims, noting that there is no mention of Kosher meals or other meals IN THE RELIGIOUS CONTEXT THAT THE HALAL MEALS ARE DISCUSSED:

      It being from CNN, it should be from a source you accept. At the same time, De Blasio was threatening to permanently close synagogues.

      Subotai Bahadur

        Milhouse in reply to Subotai Bahadur. | May 28, 2020 at 7:11 pm

        You are wrong. The city has been providing kosher meals on exactly the same basis as halal ones. Obviously a Ramadan message aimed at the Moslem community wouldn’t mention the kosher meals, just as all messages aimed at the Jewish community didn’t mention the halal ones.

        The mayor’s threat to close down synagogues that were open illegally was specifically in reaction to ones that had been caught doing just that. There were no such cases of mosques or churches or gurdwaras or whatever being caught opening illegally; either they all kept the law, or else nobody informed on them. But there is no possible doubt that illegally opne mosques would have got the exact same treatment.

    The Friendly Grizzly in reply to CKYoung. | May 28, 2020 at 3:52 am

    Maybe muslims fight and threaten mayhem if their rights are messed with, while Christians “turn the other cheek”. It might be time to have less of that and more Onward Christian Soldier.

    The Friendly Grizzly in reply to CKYoung. | May 28, 2020 at 3:52 am

    Maybe muslims fight and threaten mayhem if their rights are messed with, while Christians “turn the other cheek”. It might be time to have less of that and more Onward Christian Soldier.

Reminded of Peter and John who were thrown into prison. Ordered to stop preaching Peter replied: “… What do you think is right? What would God want? Should we obey you or God?” (Act 4:19 ERV)

Is it any different if government tells people of faith to stop assembling together? I view Romans 13 as relevant only when the laws of men do not trespass on God’s law. Accordingly if God says ‘assemble together’ and man says no, believers need to tell ‘the man’ to pound sand.

What irks me even more for believers, there are numerous assurances of God’s divine protection of his children in the scriptures … Psalm 91:6, Mark 16:18 (though I still hate snakes), et al. When this started I was reminded of Psalm 91 and have not worried since.

    notamemberofanyorganizedpolicital in reply to MrE. | May 27, 2020 at 10:33 pm

    However, I consider my life worth nothing to me; my only aim is to finish the race and complete the task…..

    Acts 20:24

How it it “reaches” the rest of us and we abandon the GOP to the trash heap, and put our energy, money and trust into PDJT ONLY??

Wow, nice to see that the Court is so free to surrender American liberties without bothering to ask any Americans about it.

Nor is it about whether state governments may limit some personal liberties.

This is a far cry from asserting that the populace should ever be subject to arbitrary executive fiat. The way a government interacts with the population, with corporations, with organized crime, etc is through a particular language. That language consists entirely of laws, and some occasional PR like that silly video of the life of “Julie”. American laws originate in noisy debating societies, called “legislatures”. In the classical world, when a situation seemed to require quicker action than a debating society could manage, the legislature would appoint a temporary “tyrant”. US state governments seem to have done the same, with some “improvements”—nobody bothered to have the legislaures involved, and nobody’s honest enough to use the proper job title “tyrant”.

Nor is it about the constitutionality of California’s prior executive orders issued in March that permitted “life-sustaining” businesses to stay open.

This one sentence is the seed of disaster. “Executive orders” are not dictatorial powers. The Court seems to be rather casually awarding the government a very peculiar notion of constitutionality. Written constitutions are intended to obviate exactly this. Executive orders are the way the head of a corporation (a government) runs the routine affairs of that corporation, not a magical way for one person to run everything. Again we’re talking “tyranny” here. Whether anyone thinks it’s a good idea in any particular set of circumstances is irrelevant. US governments were never intended to be tyrannies, which are the dead opposite of “participatory” (or democratic, or republican) forms of government.

    notamemberofanyorganizedpolicital in reply to tom_swift. | May 28, 2020 at 12:17 am

    Hear Hear.

    Milhouse in reply to tom_swift. | May 28, 2020 at 1:55 am

    Wow, nice to see that the Court is so free to surrender American liberties without bothering to ask any Americans about it.

    What on earth is this about? What court has done that? You’re not quoting any court.

    Milhouse in reply to tom_swift. | May 28, 2020 at 1:58 am

    “Executive orders” are not dictatorial powers. The Court seems to be rather casually awarding the government a very peculiar notion of constitutionality.

    You seem to forget that these orders derive their authority entirely from the statutes that authorize them. And those statutes were made by the legislatures.

    Barry Soetoro in reply to tom_swift. | May 29, 2020 at 2:53 am

    I assume every state has a statute passed by its legislature authorizing its governor to exercise specific powers during an emergency. My state, WA, does. In WI their supreme court terminated the governor’s lockdown because he strayed outside the limits the emergency powers statute specified. In MI some of the governor’s actions have been deemed unlawful because they were arbitrary and capricious in regard to any relation to viral infection abatement.

    Our Founders did not give us anarchy, but sovereignty with ordered liberty. This means police powers can be responsibly used in emergencies. In war one can even be lawfully be drafted and ordered to risk life and limb in combat for the good of the country. Pretending muh rights trump everything is naive and unAmerican.

It is depressing that the best we can probably hope for is a favorable narrow 5-4 decision that avoids as much as possible the question of religious liberty. Even a 5-4 decision that strongly affirms the Bill of Rights would be a welcome surprise, but Roberts probably will not allow it (he might not get invited to the very best Washington dinner parties).

The malevolent spirit of Lavrentiy Beria is the patron saint of much of the Federal judiciary (see Ruth Bader Ginsburg, Emmet Sullivan and much of the 9th Circuit).

I would dearly love to see the Supreme Court smack down Pritzker. He has kept the entire state locked down because Chicago is a mess.
And that knothead who is the mayor of Chicago sent armed police out to a black church to shut them down and issue citations. The minister would not open the door and they finally went away. I cannot believe that this is acceptable or in compliance with the Constitution and our civil rights. So long as churches abide by the rules placed on other entities, they should be allowed to reopen.

Either there is a pandemic or there is not. If there is, then the state may curb personal liberties but they have to be uniformly applied. If there is not, then deeming businesses or organizations “essential” is unconstitutional absent legislation. Keep in mind, however, the constitution makes no provision for “emergencies” to interfere with the right to freely practice ones religion.

Moreover, businesses that engage in interstate commerce cannot be regulated by a state to interfere in such commerce. If downstream business in other states are open, then California is violating another provision.

    rabidfox in reply to George S. | May 28, 2020 at 6:41 pm

    And at thin point in the disease’s arc, can anyone really say that it is still a pandemic? Or even a serious threat if you keep it out of LTC facilities?