The U.S. Supreme Court rejected an appeal on Friday by a southern California church to lift the state-imposed limits on the size of its worship services.
In a 5-4 vote, Chief Justice John Roberts sided with the four liberal justices to keep the state’s limits of 25% capacity or 100 people in place. The South Bay United Pentecostal Church in Chula Vista, California, in the San Diego area wanted to allow 200 to 300 people to attend each service.
The church argued that limits on attendees violate constitutional religious freedom guarantees. They were asking for an emergency ruling in time for services on Sunday.
In a brief opinion, Roberts said that the limits “appear consistent” with the First Amendment and are similar to limits placed on secular businesses, like movie theaters and shopping malls.
The court also rejected a similar challenge to Illinois’ ban on church gatherings larger than 10 people, but Illinois Governor Jay Pritzker (D) had already modified the order to allow up to 100 people before the case was heard.
Strong dissent from Kavanaugh
The dissenting view pointed out that churches are in a different category from secular businesses, and said that the limits violate the First Amendment. Justice Brett Kavanaugh pointed out that many secular businesses in the state were not subject to such limits, writing:
The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.
There are many laws involved in how the majority opinion was rendered, but it comes down to whether the justices thought churches were treated equally with other organizations. This basis stems from a 1990 opinion by the late Justice Antonin Scalia that determined “that religious people and institutions cannot get a religious exemption from a neutral law of general applicability,” conservative legal activist Michael Farris explained in a lengthy Facebook post.
Before Scalia’s 1990 opinion, First Amendment rights were treated as “fundamental” rights, so the “equal” treatment aspect did not apply. Religious groups are working to reverse Scalia’s decision, and Farris previously helped advance the Religious Freedom Restoration Act (RFRA) through Congress. However, the RFRA does not apply to states.
Other grounds to fight coronavirus executive orders
Farris also called the COVID-19 lockdown orders by governors “arbitrary and capricious” and said they could be fought legally on that basis.
Another way to fight such orders is to point out that there are no standards for the level of disease that warrants an executive order that limits the First Amendment, Farris said, which means that those orders are actually executive law-making — an illegal action.
So far, the U.S. Supreme Court has not overturned any governor’s lockdown orders, although state supreme courts have done so on several occasions.
Most notably, the Wisconsin Supreme Court overturned that state’s stay-at-home order on May 13. Oregon’s Supreme Court stayed a lower court judge’s order to overturn its stay-at-home order, but is still reviewing the case.