Roberts’s 5-4 decision is a loss for the religious right and a victory for public health.
Late Friday night, the Supreme Court handed down a 5-4 decision establishing that states still have some power to regulate how many people are allowed to gather in churches during a deadly pandemic.
The case, South Bay United Pentecostal Church v. Newsom, began on May 11, when a California church sought a lower court order allowing it to hold in-person services, despite a state order requiring places of worship to hold services online to avoid spreading the coronavirus. While the case was pending before the Supreme Court, however, California relaxed its order to allow such in-person services, so long as the number of attendees did not exceed 25 percent of the building capacity or 100 worshipers.
That relaxation did not put an end to the case, however. The church still sought a broad order exempting it from much of the state’s power to regulate public health.
The general rule when a state is accused of abridging “religious liberty” is that churches and other religious institutions may be subjected to the same laws as everyone else, but they cannot be singled out for inferior treatment. Churches must comply with the fire code, follow most labor laws, obey the criminal law, and so forth. As the Supreme Court explained in Employment Division v. Smith (1990), people of faith must still obey “neutral” state laws of “general applicability.”
Under that rule, California’s public health order is constitutional. Indeed, if anything, places of worship receive superior treatment to similar institutions in California.
As the public health crisis diminishes, California plans to open up businesses and other institutions in four stages. Currently, the state is in “Stage 2,” which allows retail businesses and many workplaces to reopen, albeit with restrictions. Places of worship were originally grouped with movie theaters, and other places where medium-sized groups of people gather in auditorium-like settings, in Stage 3. The largest gatherings, such as live concerts and sporting events, may not reopen until Stage 4.
Yet, while South Bay United was pending, the state modified its order to allow places of worship to open at limited capacity, even though theaters and the like may not do the same.
