In a late-night order Friday, the Supreme Court voted 5-4 — with Chief Justice John Roberts siding with the Court’s three remaining liberals — to block California’s pandemic-related restrictions on in-person religious meetings at people’s homes. The ruling is yet another move by the conservative-dominated Court to place religious practice above the concerns of public-health officials since Justice Amy Coney Barrett replaced Ruth Bader Ginsburg late last year.
With the intent of limiting the transmission of the coronavirus, California had limited indoor gatherings to no more than three households. Two Californians who hold religious services in their homes mounted a legal challenge to the ban, but were unsuccessful in two lower courts. Then the Supreme Court took up the case. Longtime SCOTUS reporter Amy Howe explains what happened next:
[California pastor Jeremy Wong] and others came to the Supreme Court last week, asking the justices to be allowed to hold Bible study and prayer meetings in their homes. They told the court that by either banning such gatherings, or restricting them to no more than three households, depending on COVID rates, while allowing people to gather in various secular activities, the state was violating their right under the First Amendment to freely exercise their religion. They asked the justices for an emergency order barring the state from enforcing the policy while they continued litigating the issue in the lower courts.
In a brief filed on Thursday, California countered that its policy applied to all gatherings, whether they are secular or religious. In any event, the state added, there is no need for the justices to get involved in this dispute because COVID rates in California have improved and the policy will soon be relaxed: As of April 15, the state planned to permit these kinds of gatherings.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Barrett disagreed, and called the pending lifting of the restriction irrelevant because the state might try to impose something similar again in the future. “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants,” the unsigned majority opinion said.
That’s “apples and watermelons,” the Court’s dissenting opinion argued, per The Wall Street Journal:
Justice Elena Kagan, writing for herself and Justices Stephen Breyer and Sonia Sotomayor, accused the majority of ignoring both legal precedent and facts in the case to elevate religious exercise above other constitutional values. “California limits religious gatherings in homes to three households. If the state also limits all secular gatherings in homes to three households, it has complied with the First Amendment,” Justice Kagan wrote. “And the state does exactly that.”
Justice Kagan pointed to lower-court findings detailing the lesser risk of exposure while shopping or visiting the barber compared to gathering in private homes, where visits are likely to last longer, ventilation may be worse and social distancing is more difficult. The state need not “treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here,” she wrote. “The law does not require that the state equally treat apples and watermelons.”
The new order comes two months after the Court blocked California’s ban on indoor religious services during the pandemic, which itself followed the Court’s November ruling blocking New York State’s restrictions on religious services during the pandemic. Last year, before Justice Ginsburg died and was replaced by Justice Barrett, the Court had backed the efforts of two states, including California, to limit attendance of religious services amid the pandemic.