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Kagan, Breyer, and Sotomayor Dissent as Supreme Court Forces California County to Allow Indoor Church Services


In a lawsuit by a group of churches who wish to partially reopen for worship amid the COVID-19 pandemic, the Supreme Court late Friday criticized the Ninth Circuit Court of Appeals while issuing an injunction against restrictions on gatherings enacted by California state and county governments.  Though the churches had asked for emergency relief in time for last weekend’s services, the Supreme Court ultimately granted their requests.

The Friday decision involves litigation launched by Gateway City Church, The Home Church, The Spectrum Church, Orchard Community Church, and Trinity Bible Church. The named defendants are California Gov. Gavin Newsom (D); Sandra Shewry, the Acting Director of the California Department of Public Health; Dr. Sara H. Cody, the Santa Clara County Health Officer; and the County of Santa Clara itself.

The Supreme Court’s order follows months of jockeying between public health officials and local churches in California and in Santa Clara County in particular. According to an emergency application for a writ of injunction submitted to the nation’s high court, the churches first had to follow a 0% capacity restriction on indoor gatherings (in other words, they could not open).  Then, after the Supreme Court allowed other churches to open earlier this month, a federal district court judge allowed the churches in this case to open at 25% capacity.  The government then limited the churches to 20% capacity.  It then once again ordered 0% capacity for indoor gatherings.  The process ground quickly through the courts yet again; the Ninth Circuit Court of Appeals allowed the government’s shutdown orders to remain in effect despite the Supreme Court’s order allowing different churches to open in early February.

“The County public health order allows houses of worship to meet at 20% capacity for any purpose except worship services,” the churches told the Supreme Court — highlighting the alleged absurdity of the government’s position.  “In a state stretching nearly 800 miles, all houses of worship are allowed to meet at 25% capacity. The lone exception is Santa Clara County where there remains a 0% capacity allowance for indoor worship services.”

The churches asked Circuit Justice Elena Kagan for relief.  Requests for emergency intervention arising from the 9th Circuit must procedurally go through her before reaching the entire Supreme Court.

The full Court agreed late Friday that an injunction against the government was necessary.

“The application for injunctive relief presented to Justice Kagan and by her referred to the Court is granted pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought,” the Supreme Court wrote in a one-page order which functionally shuts down any government attempts to enforce limits on worship gatherings.

Then, the Court rubbished the often-critized Ninth Circuit Court of Appeals for failing to abide by the Supreme Court’s order earlier this month in a related case brought by other churches in the Golden State.

“The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom,” the Court said.  “Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.”

In that earlier case, referenced in short as South Bay United II, the Supreme Court on Feb. 5th enjoined various California governments “from enforcing [a] prohibition on indoor worship services” until the Court decided whether it should up take the case on the merits. However, the Court also said the government would still be allowed to “impos[e] a 25% capacity limitation on indoor worship services” and to ban “singing and chanting.”  The Court’s partial grant of injunctive relief in South Bay United II was filled with rancorous concurrences and dissents from the various justices.

This time around, the court stuck to its logic without much concomitant verbal jockeying on the specifics. Justice Elena Kagan dissented with but one line referencing her previous thoughts on South Bay United II. Justices Stephen Breyer and Sonia Sotomayor joined Kagan’s dissent.

The churches in the newer Gateway City Church litigation and the government framed their arguments in rather opposite terms.

“Does the County of Santa Clara’s 0% capacity public health order on indoor worship services violate the Free Exercise clause of the First Amendment?” the churches queried.

“Does the First Amendment compel the County of Santa Clara to create a special religious exemption for indoor worship gatherings from its uniform, temporary prohibition on all indoor gatherings of any kind or type, whether public or private, religious or secular?” the county government countered in its own question.

The county argued that its restrictions should remain in place because they applied evenly to all large indoor gatherings.

“The County of Santa Clara and County Health Officer Dr. Sara Cody (collectively, the “County”) have issued content-neutral public health restrictions prohibiting indoor gatherings of all kinds, regardless of purpose — secular or religious — to thwart the most deadly pandemic in more than a century,” the county argued. “The public health restrictions at issue are fundamentally different from the other COVID-19 restrictions this Court has considered. The County has carefully crafted its public health directives to conform to the evolving science and scale of the pandemic and to respect the Constitution’s commands. These public health directives do not impose special restrictions on religious institutions. Nor do they single out or impose unique burdens on religious gatherings. Instead, they prohibit all indoor gatherings of all kinds at all places.”

The county government continued by saying the churches misunderstood the numbers:

Under these carefully calibrated directives, places of worship are not closed or limited to 0% capacity, as Applicants falsely assert. The County’s directives allow religious and secular establishments alike to operate at 20% capacity for any purpose other than hosting gatherings. Thus, individuals can enter religious facilities—and throughout this pandemic have done so—to pray, go to confession, seek spiritual guidance, make offerings or donations, purchase or obtain religious items, manage administrative affairs, or engage in any other non-gathering activity. Critically, retail stores and other secular establishments are subject to precisely the same rules as religious facilities: shoppers may purchase items indoors, for instance, but they cannot attend an indoor gathering such as a book reading, product demonstration, or presentation when visiting stores and other secular establishments. The County’s directives, in short, apply the exact same rules across the board, regardless of purpose, whether an activity is secular or religious, at a church or in a store.

The county government then disagreed with the churches’ reliance on South Bay United II.

“That holding and analysis do not apply here because the County has no restrictions that are specific to religious worship services or religious facilities,” the government wrote. “Although the County’s restrictions on indoor gatherings mention worship services as one example of a gathering’ — alongside many others, such as conferences, movie showings, political events, and banquets — those restrictions apply equally to any indoor gathering, whether religious or secular in nature.”

The Supreme Court disagreed.

The decision came the day Santa Clara County announced the loosening of some outdoor mask requirements and said further reopenings might be allowed by next week.

[image via Drew Angerer/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.