The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is granted in part. Respondents are enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari. The application is denied with respect to the percentage capacity limitations, and respondents are not enjoined from imposing a 25% capacity limitation on indoor worship services in Tier 1. The application is denied with respect to the prohibition on singing and chanting during indoor services.
…JUSTICE THOMAS and JUSTICE GORSUCH would grant the application in full.
JUSTICE ALITO would grant the application with respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the per- centage attendance caps and the prohibition against indoor singing and chanting. JUSTICE ALITO would have the stay lift in 30 days unless the State demonstrates clearly that nothing short of those measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.
CHIEF JUSTICE ROBERTS, concurring in the partial grant of application for injunctive relief.
As I explained the last time the Court considered this evolving case, federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.” South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2). The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework. At the same time, the State’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.
JUSTICE BARRETT, with whom JUSTICE KAVANAUGH joins, concurring in the partial grant of application for injunctive relief.
I agree with JUSTICE GORSUCH’s statement, save its contention that the Court should enjoin California’s prohibi- tion on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record. As the case comes to us, it remains unclear whether the singing ban ap- plies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). 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, and the decisions below unfortu- nately shed little light on the issue. As the order notes, however, the applicants remain free to show that the sing- ing ban is not generally applicable and to advance their claim accordingly.
Statement of JUSTICE GORSUCH, with whom JUSTICE THOMAS and JUSTICE ALITO join.
Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law re- flects “‘subtle departures from neutrality,’” “‘religious gerrymander[ing],’” or “impermissible targeting” of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534–535 (1993). But not here. Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many busi- nesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. See App. to Emergency Application for Writ of Injunction, App. G–3. At “Tier 1,” applicable today in most of the State, California forbids any kind of indoor worship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% oc- cupancy or more. See ibid; see also ___ F. 3d ___, 2021 WL 222814, App. A (CA9, Jan. 22, 2021). Apparently, Califor- nia is the only State in the country that has gone so far as to ban all indoor religious services. See Brief for Becket Fund for Religious Liberty as Amicus Curiae, 5–6.
When a State so obviously targets religion for differential treatment, our job becomes that much clearer. As the Ninth Circuit recognized, regulations like these violate the First Amendment unless the State can show they are the least restrictive means of achieving a compelling government interest. ___ F. 3d, at ___, 2021 WL 222814, *9.
In cases implicating this form of “strict scrutiny,” courts nearly always face an individual’s claim of constitutional right pitted against the government’s claim of special ex- pertise in a matter of high importance involving public health or safety. It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests. Of course we are not scientists, but neither may we abandon the field when government of- ficials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard. See Lukumi, 508 U. S., at 546. Even in times of crisis—perhaps especially in times of crisis—we have a duty to hold governments to the Constitution.
Still, California says it can thread the needle. It insists that religious worship is so different that it demands espe- cially onerous regulation. The State offers essentially four reasons why: It says that religious exercises involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing.
No one before us disputes that factors like these may in- crease the risk of transmitting COVID–19. And no one need doubt that the State has a compelling interest in reducing that risk. This Court certainly is not downplaying the suffering many have experienced in this pandemic. But Cali- fornia errs to the extent it suggests its four factors are al- ways present in worship, or always absent from the other secular activities its regulations allow. Nor has California sought to explain why it cannot address its legitimate con- cerns with rules short of a total ban. Each of the State’s shortcomings are telltale signs this Court has long used to identify laws that fail strict scrutiny. See, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 793 (1978) (The State’s proffered “purpose is belied, however, by the provi- sions of the statute, which are both underinclusive and overinclusive.”).
Consider California’s arguments in turn. The State pre- sumes that worship inherently involves a large number of people. Never mind that scores might pack into train sta- tions or wait in long checkout lines in the businesses the State allows to remain open. Never mind, too, that some worshippers may seek only to pray in solitude, go to confes- sion, or study in small groups. See Harvest Rock Church, Inc. v. Newsom, App. to Emergency Application for Writ of Injunction, No. 20A137, Exh. A, No. 20–56357, p. 4, n. 1 (CA9, Jan. 25, 2021) (O’Scannlain, J., specially concurring). Nor does California explain why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses.
Next, the State tells us that worshippers are sure to seek close physical interactions. It touts its mild climate, too, suggesting that worshippers might enjoy more space out- doors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks. And California allows people to sit in relatively close proximity inside buses too. Nor, again, does California explain why the narrower options it thinks adequate in many secular settings— such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here. Es- pecially when those measures are in routine use in religious services across the country today.
California worries that worship brings people together for too much time. Yet, 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 ter- minals. Nor, yet again, has California explained why more narrowly tailored options, like a reasonable limit on the length of indoor religious gatherings, would fail to meet its concerns.
When it comes to each of the first three factors, California singles out religion for worse treatment than many secular activities. At the same time, the State fails to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interests. Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, ante, at ___ (per curiam). Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.
If I have a quibble with the Court’s order, it is with how it addresses California’s final factor, singing. While the Court’s order requires California to allow churches to open, it also permits California to enforce, for now, a categorical ban on singing during services. This much might seem un- derstandable. California has sensibly expressed concern that singing may be a particularly potent way to transmit the disease, and it has banned singing not just at indoor worship services, but at indoor private gatherings, schools, and restaurants too.
But, on further inspection, the singing ban may not be what it first appears. It seems California’s powerful enter- tainment industry has won an exemption.2 So, once more, we appear to have a State playing favorites during a pan- demic, expending considerable effort to protect lucrative in- dustries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful. See, e.g., Cal- vary Chapel Dayton Valley v. Sisolak, 591 U. S. ___, ___ 2020) (GORSUCH, J., dissenting from denial of application for injunction relief ).
Once more, too, the State has not explained how a total ban on religious singing is narrowly tailored to its legitimate public health concerns. Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in. The Ninth Circuit sought to defend California’s uneven regime by observing that the entertainment industry has adopted COVID–19 testing protocols. See ___ F. 3d., at ___, 2021 WL 222814, *13. But, if that’s true, it is unclear why California’s religious institutions might be denied a similar opportunity. Rather than assume such testing is infeasible, California might have at least offered the option, or sought to adapt it to churches. In my view, the State must do more to tailor the requirements of public health to the rights of its people. The Court’s order today at least allows the applicants to press these points on remand.
No doubt, California will argue on remand, as it has before, that its prohibitions are merely temporary because vaccinations are underway. But the State’s “temporary” ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. Government actors have been moving the goalposts on pan- demic-related sacrifices for months, adopting new bench- marks that always seem to put restoration of liberty just around the corner. As this crisis enters its second year— and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry. Read more»
SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL., v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL February 5, 2021.
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