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“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” asks the 6th Circuit in an opinion quoted by Justice Kavanaugh in his dissent from the majority’s refusal to enjoin restrictions on churches in California.
According to Justices Kavanaugh, Alito, Thomas, and Gorsuch, church attendance involves quickly walking through the pew before dropping a couple of bills on the collection plate en route to the golf course. Similarly, the arrival of the Amazon delivery truck prompts an immediate congregation of neighbors to assemble in close proximity for an hour or two huddled in someone’s rumpus room, raptly absorbing her brave counsel and singing hymns of praise.
It’s quite an assumption, and one that Justice Roberts was unwilling to go along with, siding with the four liberal Justices late Friday night to uphold California’s emergency coronavirus restrictions capping church attendance at 25 percent of maximum occupancy or 100 people.
Late Friday night, the Supreme Court released a 5-4 decision in South Bay United Pentecostal Church v. Gavin Newsom, upholding the California governor’s emergency restrictions and signaling that the court is unlikely to side with the Justice Department’s push to treat stay-at-home orders as violations of the First Amendment.
“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment,” he wrote for the majority. “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.”
Which acknowledges the fact that, here on planet earth, churches are the loci of multiple “super spreader” events, and grocery stores are not. Because you’re highly unlikely to inhale enough droplets to get infected with the virus in the five seconds when you scurry past someone else in the pasta aisle, but among 61 choir members who attended a March 10 choir practice in Skagit County, Washington, 53 were diagnosed with the virus after 2.5 hours of deep breathing in a confined space.
But apparently, four Justices who haven’t assembled in the same room for months and who are taking the unprecedented step of hearing oral arguments over Zoom, disagree, writing in dissent, “In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.”
Because CHURCH is to MOVIE THEATER as GROCERY STORE is to … RELIGIOUS PERSECUTION! Indisputably.
ON APPLICATION FOR INJUNCTIVE RELIEF [SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL., 590 U. S. ____ (2020) (May 29, 2020)]
Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.