US Supreme Court denies church’s challenge to Gov Newsom’s stay at home order

The COVID-19 pandemic finally reached the U.S. Supreme Court last week. Unfortunately, it got there with a case, South Bay United Pentecostal Church et al. v. Newsom, et al., 19A1044 (May 29, 2020), that was poorly positioned and which changed dramatically before the Supreme Court decided it, making it easier for the court to deny relief and avoid deciding the pressing legal questions the pandemic has created.

On its face, the South Bay case raised compelling questions about the scope of government power during a pandemic. The South Bay plaintiffs resisted California Gov. Gavin Newsom's stay-at-home order, which barred them from holding in-person religious services, even if they promised to comply with hygiene requirements that governed secular businesses. Those rules included limitations on the size of gatherings and requirements that individuals stay at least six feet away from each other. Although he let businesses like Target, Costco and Walmart (among others) operate by those rules -- because they were deemed "essential" -- Newsom repeatedly refused to let churches operate by them and he threatened to prosecute those that didn't follow his order.

The South Bay church followed Newsom's order for a month but then sued to challenge it. The case raised compelling arguments under the First Amendment because Newsom's order discriminated against religious services. It treated them differently than secular activities in which people gather in a single place for a common purpose, such as a grocery store or an airport. Nonetheless, a federal district judge ruled for the government. So did a divided panel of the 9th U.S. Circuit Court of Appeals -- which, in a show of utter cluelessness, said: "We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure." (For the record, as of June 1, only 5.6% of COVID-19 tests performed in California were positive, and only 4,251 people have died with the virus. The virus is not highly contagious or often fatal.) The majority offered little analysis for its decision.

Circuit Judge Daniel Collins wrote a moving dissent. It focused on the state's argument "that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in 'good faith' and has 'some factual basis' for his edicts." South Bay Pentecostal Church v. Newsom, 2020 DJDAR 4844 (9th Cir. May 22, 2020). Judge Collins blasted that argument, which was based on the 1905 case Jacobson v. Massachusetts, 197 U.S. 11 (1905), writing: "Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards."

Rather than defer to the governor, Judge Collins applied the traditional free exercise clause analysis from Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). He found that Newsom's order was not a law "that is neutral and of general applicability" because it discriminated against in-person religious activities, treating them different than some in-person secular activities. And Judge Collins correctly noted that, "[i]n framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities." In Judge Collins' view, assigning in-person religious activities to "Phase 3" of the re-opening explicitly discriminated against those activities, in violation of the First Amendment.

With such a strong dissent, the South Bay plaintiffs could have asked the 9th Circuit to rehear the case en banc. Instead, they went straight to the Supreme Court, on an emergency application for a writ directing the lower courts to grant the plaintiffs' request for a temporary restraining order. The Supreme Court rarely issues such orders, doing so only where "the legal rights at issue are indisputably clear" and "only in the most critical and exigent circumstances." S. Shapiro, K. Geller, T. Bishop, E. Hartnett & D. Himmelfarb, Supreme Court Practice Section 17.4, p. 17-9 (11th ed. 2019) (quotations omitted).

That standard is hard enough to satisfy on its face. But, to make things even harder, Gov. Newsom modified his re-opening order to permit in-person worshiping so long as churches adhered to hygiene and distancing requirements and limited capacity to 25%. Although that did not end the case, it made it much harder to justify the extraordinary relief the South Bay plaintiffs were seeking.

The Supreme Court picked up on that and, on May 29, denied the South Bay plaintiffs' request in a 5-4 vote. In a concurring opinion -- the lone opinion written by the five justices that voted to deny relief -- Chief Justice John Roberts said: "Our Constitution principally entrusts '[t]he safety and the health of the people' to the politically accountable officials of the States 'to guard and protect'" (quoting Jacobson v. Massachusetts, 197 U. S. at 38). "Where those broad limits are not exceeded, they should not be subject to second-guessing by an 'unelected federal judiciary,' which lacks the background, competence, and expertise to assess public health and is not accountable to the people."

Of course, while the chief justice acknowledged that there are limits to the powers that government officials can exercise during an emergency, he did not talk about what those limits are. At minimum, the government should have to respect constitutional rights. It should not be able to trample on those rights, indefinitely, based on vague predictions of harm -- predictions, by the way, that have turned out to be wildly inaccurate, such as Newsom's claim that 500,000 Californians would die from the coronavirus by mid-May.

First Amendment rights are especially important during a pandemic. How are people supposed to exert pressure on "politically accountable officials" if the government restricts their ability to speak, gather, protest and worship?

Like in the 9th Circuit, the Supreme Court's decision included an inspired dissent from Justice Brett Kavanaugh, which Justices Clarence Thomas and Neil Gorsuch joined. (Justice Samuel Alito voted to grant the application but did not join the dissent.) Justice Kavanaugh noted, correctly, that California discriminated against religious activities by treating them differently than secular activities. The state's motive did not matter. Creating a different set of rules for a different activity is discrimination, whether it's done in good faith or not. To that end, Kavanaugh quoted a recent decision from the 6th Circuit involving the same issue, saying: "What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification. The Church has agreed to abide by the State's rules that apply to comparable secular businesses. That raises important questions: '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?'" (quoting Roberts v. Neace, 958 F. 3d 409, 414 (6th Cir. 2020) (per curiam)).

As Kavanaugh and his fellow dissenters recognized, California officials do not have good answers for those questions. Indeed, Gov. Newsom's attempts to explain the restrictions on religious activities have been bumbling affairs that, if anything, show a disregard for religion, especially the importance of in-person worship. (I was married in a Scottish cathedral and can't understate the importance of having a place to worship and celebrate; Zoom just doesn't cut it.)

Unfortunately, the South Bay plaintiffs' decision to bring the challenge through an emergency proceeding, instead of through a regular petition for a writ of certiorari, killed their chances. The chief justice cares less about deciding important constitutional issues than he does about protecting the court from criticism. That's a shame because the South Bay case raised important questions about the scope of government power. It could have given the court the chance to reconsider Jacobson, an outdated case that should be limited or overruled. And it only takes four votes for the Supreme Court to take a case. With four justices willing to grant the emergency application, the court likely would have granted a regular cert petition.

That should be a reminder: process matters. Even good cases can be ruined by a poor strategy. 