Today the Supreme Court of The United Stated (SCOTUS) issued a splintered opinion on a case that pits California’s government against a church in CA. Here’s the basics of what the case was about:
CA is pretty much in lockdown. Like many places across the country, they shutdown when COVID-19 hit and we didn’t know what was going on with it. We did not know how deadly it was, how easily transmissible it was, etc… So, the country pretty much shut down for a while. These stay at home, close your businesses that are not essential rules were applied across the board.
Fast forward to now. CA is lifting some restriction. They are allowing places of business to open back up, with limited capacity. They have made some glaring exceptions to some rules for entertainment industry activities. But churches were included in the must remain closed, no indoor activity group.
So, South Bay United Pentecostal Church sued Gavin Newsom, the Governor of CA. The church argued that to restrict them when other businesses are open is wrong, and they should not be treated differently. The state said they are treated differently because they do different things- gather inside in groups from multiple families, stay there for a long time, and sing or chant.
SCOTUS released their splintered opinion on this case. The gist is this, churches can open up to the capacity limits of other businesses, but cannot sing or chant- at all. There’s quite a bit of discussion on which justice said what in these opinions. I want to focus on the fundamental ruling, and where I think SCOTUS approached it all wrong.
Justice Kagan wrote the dissent, and her first two sentences sets this up: “Justices of this Court are not scientists. Nor do we know much about public health policy.”
But the court made its decision based on science, not the Constitution.
No one is denying that governments can issue stay at home orders. The issue is whether churches can be treated differently than other secular groups. To me, this is clear: if you single out a church for restriction, but allow other, similar activity to occur, you are in violation of the 1st amendment, which stops government from making rules that prohibit the free exercise of religion.
It’s one thing to say there is a public health hazard and everyone must do the same thing. It’s another to say that movie studios and recording venues can sing with precautions, but churches cannot follow the same precautions and sing in worship.
Now, a couple of the Justices (Barret and Kavanaugh) hinted that they would have allowed (might still allow) singing if they can show, in court, there is a different standard applied. But the applicant for relief did not prove this. If this were proven, they may be open to change, but that’s only 4 justices, with Alito as probably 5th after a 30 day period he favored. The failure to show this disparity falls on the lawyers for the church.
Of course, these opinions are based on what they think science has said. They are not looking at the Constitution first. Instead, they look to see if science can justify the difference in behavior. Keep in mind, CA’s position is that church’s should be closed, indoors. These justices are allowing them to open up some, but not all, because of their understanding of science and virus transmission.
Is it smart for churches to gather and sit close, and sing without masks? No.
Is it the government’s job to protect my health or protect my rights more? CA says health, and 6 or 7 SCOTUS Justices agree, though they may disagree with how CA interprets the science.
Churches and people who attend should be as free to worship, gather, sing, etc… as any other business in the governed area. A church may choose to follow stricter guidelines, as many do across the nation- but it’s their choice. If any business can be opened, the church should be as free as they are. To do otherwise, as the government, is to prohibit the free exercise of religion. That is a violation of the First Amendment.
As Justice Kagan said, they are inserting themselves into places where experts should advise. SCOTUS should simply rule that churches must be afforded the same rules as any other secular place of business. Instead, we have unqualified scientists disagreeing about how to prevent transmission of COVID.
[Photo by Ian Hutchinson on Unsplash]