Two weeks ago, the US Supreme Court handed churches and synagogues in New York a stunning victory over their governor’s discriminatory COVID-19 restrictions on indoor services. The 5-4 majority declared “even in a pandemic, the Constitution cannot be put away and forgotten.”
Despite the victory, it was unclear how the New York decision would affect lawsuits California churches had filed against similar restrictions imposed on singing and indoor services by Governor Gavin Newsom. That all changed yesterday morning when the Supreme Court told the US Ninth Circuit Court of Appeals to reevaluate a federal lawsuit, filed by Pasadena’s Harvest Rock Church, in light of its New York decision.
So what does this mean? National Center for Law and Policy President Dean Broyles explains. “Yesterday, the U.S. Supreme Court, in vacating the lower court’s ruling against Harvest Rock Church and ordering the court to reconsider its ruling in light of Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, expects federal courts in the Ninth Circuit to carefully follow its ruling as binding precedent,” he said. “This is very good news for beleaguered churches in California, including our clients in the four federal church lawsuits in which I am involved.”
The attorney for Harvest Rock Church in Pasadena enthusiastically agreed with Broyles assessment. “Today’s ruling by the Supreme Court provides great relief for churches and places of worship. The handwriting is now on the wall,” said Liberty Council Founder and Chairman Mat Shaver. “The final days of Governor Gavin Newsom’s ‘color-coded executive edicts’ banning worship are numbered and coming to an end. It is past time to end these unconstitutional restrictions on places of worship.”
Harvest Rock Church with multiple campuses throughout California was threatened by City of Pasadena officials with criminal charges, fines, and closure for being open for worship against the governor’s orders and local health orders. The letters threaten up to one year in prison, daily criminal charges, and $1,000 fines against the pastors, staff, and parishioners.
And just like the restrictions imposed on churches in New York, California restricts churches differently than similar secular businesses and services designated as “essential.” These include laundromats, warehouses, liquor stores, and big box businesses. See chart.
According to the 5-4 decision last Friday, the Supreme Court declared this type of discrimination against churches unconstitutional. Justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh voted in the majority with justices Roberts, Breyer, Sotomayor and Kagan dissenting. In his own concurring opinion Justice Neil Gorsuch explains in emphatic terms why the Constitution does not allow states to treat religious organizations differently than secular ones.
The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Justice Niel Gorsuch
“Government is not free to disregard the First Amendment in times of crisis,” Gorsuch begins. “At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available. … Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles.”
New York Governor Andrew Cuomo limited religious congregation indoor services to 10 or 25 people at a time. “At the same time,” Gorsuch wrote. “the Governor has chosen to impose no capacity restrictions on certain businesses he considers ‘essential.’ And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too.”
“So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?” the justice wrote.
Gorsuch continues, “People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides.
The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.”
Gorsuch concludes with this final paragraph:
“It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.” he wrote.