//  2/6/21  //  Quick Reactions

In South Bay United Pentecostal Church v. Newsom, the Supreme Court enjoined (one of) California’s restrictions on in-person gatherings, as it applied to churches. The decision reflects a lot of the issues with the Supreme Court’s “shadow docket” (the set of cases and applications for emergency relief that it decides without full briefing and argument). It also confirms what was evident from the Supreme Court’s earlier stay decision in Roman Catholic Diocese v. Cuomo (another case involving coronavirus restrictions enjoined on religious liberty grounds)—namely, that the new supermajority conservative Court is already changing the law on religious liberty, which has implications for at least one of the cases on the Court’s regular docket.

In South Bay United Pentecostal Church, a divided Supreme Court enjoined California’s “Tier 1” prohibition on in person gatherings, which prohibits all gatherings of large groups of people who are in close proximity for extended periods of time. (The prohibition applies to all gatherings in certain areas based on COVID rates in the area.)

We don’t really know why the Court enjoined the requirement since there was no opinion for the Court. There are instead separate opinions from the Chief Justice, Justice Barrett (joined by Justice Kavanaugh), and Justice Gorsuch (joined by Justice Thomas), as well as an indication about the different scope of relief that Justice Alito would have granted.  (Justices Gorsuch and Thomas also would have enjoined the restrictions that limit gatherings to 25% capacity and the restrictions on singing and chanting. Like Justices Gorsuch and Thomas, Justice Alito  would have enjoined those requirements, but he would have stayed the injunction for 30 days during which time the State would have the opportunity to “demonstrate[] clearly that nothing short of those measures will reduce the community spread of COVID-19.” Justice Barrett and Justice Kavanaugh indicated that they “agree with Justice Gorsuch’s statement, save its contention that the Court should enjoin California’s prohibition on singing and chanting during indoor services.” They noted that the churches still had the opportunity to prove that California was selectively enforcing the prohibition on singing and chanting in ways that disadvantaged churches relative to other groups.)

The opinions and order were issued without argument, without full briefing, and without any advance notice to any of the parties involved (even the minimal advance notice that comes with the Court announcing that it will release opinions on a given day).

The opinions that did issue confirm that the Supreme Court has already refashioned the law on religious liberty. Under what used to be the law – and still is the law, at least on paper, since the Court hasn’t bothered to release an opinion of the Court actually explaining or saying what it is doing—a statute or regulation that is facially neutral (i.e., does not single out religious institutions for less favorable treatment) is generally constitutional so long as the statute or regulation was not enacted in order to intentionally disadvantage religious institutions.

In the California case, the regulation is clearly facially neutral: it applies to religious institutions and non-religious institutions. And no one thinks that restrictions on in-person gatherings that are tied to the rates of covid in an area are intentionally designed to prohibit church gatherings.

But the various opinions are clear that that no longer is the end of the matter.  The Chief Justice’s statement claimed he saw “no basis in this record for overrriding … the state public health framework” about “singing indoors.” But “[a]t the same time, the State’s present determination—that the maximum number of adherents who can safely worship … is zero … appears to reflect … insufficient appreciation or consideration of the interests at stake. 

That’s not about whether the regulation treats non-religious and religious institutions the same. It is instead about the extent of the burden on the religious institution – and whether, in the Court’s eyes, that burden is too great in light of the state’s purpose. And it would provide religious institutions with an exemption from some facially neutral generally applicable regulations—those that courts deem too burdensome.

That used to be the test for determining whether laws or regulations violated the free exercise. But that hasn’t been the test since Justice Scalia’s 1990 opinion for the Court in Employment Division v. Smith. To be sure, some Justices on this Court have already called for the Court to revisit—and likely overturn—Smith. But the Court hasn’t pulled the trigger on that yet, except for (rather obviously) refusing to apply Smith in cases on its stay docket, like South Bay United Pentecostal.

Justice Gorsuch’s separate opinion (joined by Justice Thomas and Justice Alito, and with which Justice Barrett and Justice Kavanaugh indicate that they agree, except for the conclusion), asserts that “California has openly imposed more stringent regulations on religious institutions than on many businesses.” But to reach that conclusion, he repeats the error from his separate writing in Roman Diocese: He equates religious services with (among other things) “retail operations” and “other businesses” that do not involve large groups of people congregating for extended periods of time. That is, in order to say that California treats religious institutions worse than other institutions, he compares religious institutions to institutions that aren’t all that similarly situated, such as a single stop convenience store, where someone could go in by themselves for a few minutes, or an office that conducts one-on-one visits. He doesn’t compare the restrictions on religious institutions to (say) restrictions on a political meeting or organizational board meeting, which would also involve large groups of persons gathering for extended periods of time.

If Justices get to make these kinds of choices about what makes an entity “similarly situated” to a church, then Smith would also be pretty meaningless. As Justice Gorsuch’s decision to equate churches to retail operations suggests, the Justices could always find a reason why a church or religious institution isn’t similarly situated to some places, including reasons and comparisons that aren’t particularly good ones.

Imagine, for example, a statute that imposes an obligation on religious institutions and non-religious institutions alike—say a duty not to discriminate on the basis of sex. Now imagine that a Justice insists that the law doesn’t actually treat religious institutions equally because, unlike the other entities subject to the law, the religious institutions have religious objections to the law. That’s a similar kind of move that Justice Gorsuch is making – identifying distinctions between religious institutions and non-religious institutions that don’t really go to the reasons why a law applies to them in the first place.

The Court has on its regular docket a case that involves the applicability and continued force of Employment Division v. SmithFulton v. City of Philadelphia. In that case, some religious adoption agencies are arguing that the City cannot require, as a condition for receiving a contract with the city to certify that prospective foster care parents satisfy the city’s criteria for foster parents, that agencies do not discriminate on the basis of sexual orientation. Basically, the agencies are asking for an exemption from the rule that contractors not discriminate on the basis of sexual orientation.

Under Smith, the condition is perfectly constitutional – it’s generally applicable and applies to any contractor whether the contractor is a religious institution or not. But as South Bay United Pentecostal and Roman Catholic Diocese make clear, the Court is no longer really applying Smith. And Fulton may provide the first opportunity for the Court to make clear what it is doing in an opinion of the Court in an argued case. (Since it’s now clear that there are at least five Justices who are no longer applying Smith.)

A PS: Justice Kagan's dissent is really good. In particular, this ending: "I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict." 


Update: As Mark Joseph Stern noted, the Court's opinion is so sloppy and the "shadow docket" norms and procedures so few that it's not entirely clear where the fifth vote to uphold the 25% cap comes from, even though the Court says it's denying the application to enjoin the 25% capacity cap.

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