A divided U.S. Supreme Court gave two California churches a victory on Friday by ruling that the state cannot ban indoor religious services.
Amid a flurry of individual opinions by the justices, the court ruled 6-3 that the churches can hold services at 25 percent of capacity, and that — for now — restrictions on singing during services can be upheld pending further action by the churches to address that prohibition.
Justice Neil Gorsuch wrote the main opinion, with which Justices Clarence Thomas and Samuel Alito concurred.
“Consider California’s arguments in turn,” Gorsuch wrote. “The State presumes that worship inherently involves a large number of people. Never mind that scores might pack into train stations or wait in long checkout lines in the businesses the State allows to remain open.”
“Next, the State tells us that worshippers are sure to seek close physical interactions. It touts its mild climate, too, suggesting that worshippers might enjoy more space out- doors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks,” he wrote.
Gorsuch said that the state changed the rules when it came to churches.
“California worries that worship brings people together for too much time. Yet, California does not limit its citizens to running in and out of other establishments; no one is barred from lingering in shopping malls, salons, or bus terminals. Nor, yet again, has California explained why more narrowly tailored options, like a reasonable limit on the length of indoor religious gatherings, would fail to meet its concerns,” he wrote.
In summary, he wrote, “California singles out religion for worse treatment than many secular activities.”
The singing ban, which was upheld for now, troubled Gorsuch, who noted that “California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites during a pandemic.”
“Once more, too, the State has not explained how a total ban on religious singing is narrowly tailored to its legitimate public health concerns. Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in,” he wrote.
Justice Amy Coney Barrett, in her first separate opinion and one joined by Justice Brett Kavanaugh, said the singing ban might well be discrimination, but the churches had not made the case sufficiently.
“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral,” Barrett wrote, noting that the churches are free to file yet another suit to address the point.
Chief Justice John Roberts gave the ban on singing a pass, but not the ban on indoor worship.
“The state has concluded, for example, that singing indoors poses a heightened risk of transmitting Covid-19,” Roberts wrote. “I see no basis in this record for overriding that aspect of the state public health framework.”
“At the same time, the state’s present determination — that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero — appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake,” he wrote.
Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor, filed a dissent.
“Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services,” Kagan wrote.
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