CHELSEA LANGSTON BOMBINO
Editor's Note: This article first appeared in Religion Unplugged in a column from Sacred Sector Director Chelsea Langston Bombino that explores religious freedom in the United States.
(ANALYSIS) The Supreme Court recently reversed California’s discriminatory ban on indoor worship in a case brought by two churches against Governor Gavin Newsom.
The churches claimed the state’s extreme prohibitions on all indoor religious services discriminated against religious institutions while permitting other large indoor venues to open, like Hollywood soundstages and large, nonessential department stores.
The Feb. 6 ruling in these two cases, South Bay United Pentecostal Church v. Newsom and Harvest Rock Church v. Newsom, allow California churches, synagogues, temples and mosques to resume worship indoors with much of the same COVID-19 restrictions that restaurants and stores face. California can limit indoor religious services to 25% of the space’s capacity, according to the Court order.
The Court also ruled that, for now, the state’s ban on indoor singing and chanting during religious services can remain. California had initially enacted the singing ban because studies show COVID-19 spreads more quickly without proper air circulation and singing makes the likelihood of virus spread higher.
“We are glad this extreme violation of our first freedom has finally come to an end,” stated Eric Rassbach, vice president and senior counsel at Becket, which represented the churches in the suit. “When every other state in the country has figured out a way to both allow worship and protect the public health, maybe you are doing it wrong. We are glad this extreme violation of our first freedom has finally come to an end.”
The Supreme Court justices gave differing reasons following the Court’s injunction. Chief Justice Roberts stated that California’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.”
Justices Thomas and Alito joined Justice Gorsuch in noting that since the beginning of the pandemic, California has put disproportionately harsh restrictions on religious institutions, as opposed to many businesses. Justice Gorsuch stated: “When a State so obviously targets religion for differential treatment, our job becomes that much clearer.”
For example, California cited as one of its reasons for a total ban on indoor worship the length of time people are gathered together indoors. Yet, as Gorsuch pointed out: “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.”
Gorsuch and Thomas stated the state’s singing ban during indoor religious services should also have been overturned. Justice Barrett, joined by Justice Kavanaugh, disagreed. Justice Barrett wrote that the singing ban should be upheld for the time being because it remains uncertain, based on the facts presented, whether California was targeting religious institutions for unequal treatment in issuing the prohibition.
Justice Barrett stated: “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain...the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.”
In contrast, the Court’s three liberal justices dissented. Justice Kagan, joined by Justice Sotommayor and Justice Breyer, stated: “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 Supreme Court’s injunction comes on the heels of the Supreme Court’s overturning of the state of New York’s rigid numerical restrictions on indoor worship in Agudath Israel of America v. Cuomo. In this case, New York Governor Cuomo enforced strict 10 and 25-person ceilings on indoor religious services, while permitting businesses to open at a percent of their total capacity. Following the Supreme Court’s ruling in this case, the Justices “told a federal court to reexamine California’s restrictions in light of the ruling.”
This case ultimately came down not to whether congregations should meet in person, but whether they legally can meet indoors. If it were up to my personal discretion, and not the Constitution, neither congregations nor Hollywood studios would be open right now. I’ve watched close family members suffer from COVID-19. I know over a dozen people who have succumbed to this horrific virus, including several religious leaders in Black churches and Native American spiritual communities.
But that is not what this case is about. Congregations were being treated differently than secular entities in California. This is unconstitutional. Period. One can still advocate that their church or synagogue or mosque should, voluntarily, remain closed or highly restricted if they are in an area with severe COVID-19 numbers. And they can recognize the unconstitutionality of California’s total ban on indoor services that targeted religious institutions.
One needs simply to tune into primetime television or scroll the latest offerings on Netflix to conclude that a similar ban did not apply to the profitable film and television industry in California. The studios continued filming, with dozens of people gathered indoors for our entertainment. And yet, churches were denied this same ability, even though they were gathering to honor and praise God, not make a profit. As Gorsuch simply put it: “California no longer asks its movie studios... to wait.”
Can we really expect synagogues and mosques and churches to be held to more restrictive standards than Hollywood studios? What does that say about the altar upon which much of our society is bowing down?
Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.
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