A 5-4 vote with Chief Justice John Roberts dissenting.
This February, Professor Jacobson reported that the U.S. Supreme Court issued an Order partially enjoining California’s total ban on indoor church services, but leaving in place restrictions on “singing and chanting” during services.
The Court was busy this week, once again, trying to protect religious liberty in this state. This time, the order focused on restrictions related to household religious gatherings.
For the fifth time, the U.S. Supreme Court has sided with religious adherents and against California’s COVID-19 restrictions. This time, the court barred the state from enforcing a rule that for now limits both religious and non-religious gatherings in homes to no more than three households.
The court’s unsigned order came on a 5-4 vote. Chief Justice John Roberts cast his lot with the dissenters, but failed to join their opinion. He noted simply that he would have left the lower court order intact.
The order blasted the 9th Circuit for its repeated rulings, which have supported limitations on religious activities beyond those established for secular ones.
“This is the fifth time the court has summarily rejected the 9th Circuit’s analysis of California’s COVID restrictions on religious exercise,” they said in Tandon vs. Newsom. In the most significant of the rulings, the court in early February said churches in California may open for indoor worship services, so long as they enforced limits on how many people gathered together.
Repeatedly in these cases, judges in California and the justices in Washington have disagreed over how to compare, for example, people gathering in a restaurant or hair salon to people gathering for a worship service. The state has enforced stricter limits on indoor gatherings such as in theaters or churches where people sit together for an hour or more while allowing retail stores where people go in and out to remain open.
In the latest order, the conservative justices again noted that the state has opened public businesses while restricting religious gatherings. And they said the state regulators are violating the 1st Amendment’s protection for the free exercise of religion “whenever they treat any comparable secular activity more favorably than religious exercise.”
“California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time,” they said in an unsigned order. “The 9th Circuit did not conclude that those activities pose a lesser risk of transmission than applicants’ proposed religious exercise at home.”
The order spoke for Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett.
Justice Elena Kagan wrote the dissent for herself, Breyer, and Sotomayor, asserting that the court’s majority was hurting state officials’ ability to address a public health emergency.
“California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not … treat at-home religious gatherings the same as hardware stores and hair salons,” she wrote. She added that “the law does not require that the State equally treat apples and watermelons.”
The case before the justices involved two residents of Santa Clara County in the San Francisco Bay Area, who want to host small, in-person Bible study sessions in their homes. California had defended its policy of restricting social gatherings as “entirely neutral.”
To put Kagan’s fear-based reason for supporting the liberty-crushing rules in perspective, here are some of the latest tracking graphs from the Centers for Disease Control and Prevention for the state:
Clearly, this is not some Black Death-scale medical crisis. And with vaccinations continuing, natural immunity developing, and the hospitals being far from overwhelmed (i.e., the curve is totally flattened), there is no logic to clinging behind the excuse of a public health crisis.
The Supreme Court says the order will go into effect next week. It should never have had to get that far.DONATE
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