By Lisa Soronen
Last Friday night, close to midnight, the U.S. Supreme Court in a 5-4 decision rejected a request from a number of California churches to strike down the portion of California governor’s stay-at-home order limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.
Chief Justice John Roberts wrote a brief, concurring opinion explaining his vote. First, he noted that the churches face a high bar in obtaining relief in this case because they were asking for an injunction of a lower court ruling: “An injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.”
Next, he rejected the argument that California’s restrictions on places of worship appear to violate the Free Exercise Clause of the First Amendment. “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. And the order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Finally, he reasoned that given the “pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement,” state and local government elected officials should be making the difficult judgment calls rather than unelected judges who lack the “background, competence, and expertise to assess public health and is not accountable to the people.”
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanuagh would have granted the injunction. Kavanaugh opined in his dissenting opinion, which Thomas and Gorsuch joined, that the “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.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.