The Supreme Court blocked California’s Covid-19 restrictions on religious gatherings in private homes in a late-night order on Friday, saying that the law infringes on constitutionally protected religious rights in a 5-4 vote.
The decision, in which Chief Justice John Roberts voted with the three dissenting liberal justices, marks the fifth time that the Supreme Court has sided with religious adherents protesting California’s laws designed to slow the spread of the coronavirus. And it underscores how Justice Amy Coney Barrett’s replacement of the late Justice Ruth Bader Ginsburg in November has tilted the high court toward overruling state Covid-19 restrictions on religious services.
The unsigned majority opinion argued that California’s law — which limits both religious and non-religious gatherings in homes to no more than three households — treats religious gatherings unfairly in light of allowances for gatherings in commercial spaces. “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 opinion said.
But in her dissent, Justice Elena Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, wrote that the majority opinion was making the wrong comparison between unlike activities: “The First Amendment requires that a state treat religious conduct as well as the state treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today.”
The courts split on how California’s law treats commercial spaces differently than private homes
In her dissent, Kagan explained that California’s law doesn’t single out religious gatherings but simply treats all at-home gatherings differently than commercial spaces.
“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. And the state does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike,” she wrote.
The reason for the restrictions on households that don’t apply to commercial spaces, she wrote, is that gatherings in private homes are considered categorically riskier because of the more intimate way people gather in them.
That argument was in line with the majority opinion from the 9th Circuit Court of Appeals that the Supreme Court ultimately rejected.
In that opinion, judges Milan Smith Jr. and Bridget Bade wrote that it made sense for California law to treat commercial and non-commercial spaces differently: “The state reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting; that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.”
The case that prompted the decision was brought by two Santa Clara County residents who said that Covid-19 restrictions violated their free speech rights by preventing their Bible study and prayer sessions with eight to 12 individuals.
Barrett has shifted the Supreme Court’s outlook on religious services
The Supreme Court’s decision in their favor is a reminder of how Barrett’s arrival has shifted the ideological makeup of the court, and its outlook on clashes between states and advocates for minimizing Covid-19 state restrictions on religious gatherings.
As legal analyst Adam Liptak notes at the New York Times, before Ginsburg’s death last year, the Supreme Court allowed California and Nevada to restrict religious service attendance, and Roberts, the chief justice, was siding with what was then a liberal contingent made up of four justices.
But that pattern shifted after Barrett’s arrival last fall, and the Supreme Court blocked New York’s restrictions on religious services.
Conservative activists rankled by Covid-19 restrictions hailed Friday’s Supreme Court ruling as a victory for the right and for freedom to worship.
That the state of California thinks it should be able to regulate who can pray together inside private homes is almost as appalling as the desire of all the brainwashed Fauci worshipping sheep for more arbitrary authoritarian COVID rules to keep them “safe” https://t.co/55fy62CyHc— Buck Sexton (@BuckSexton) April 10, 2021
Meanwhile, commentators on the left have said the issue at hand is not religious liberty but rather an emerging culture war over the status of religion in American life. In a New Republic piece about the trend of the new conservative majority’s rulings on Covid-19 and religion, Katherine Stewart writes that the Supreme Court’s recent legal interventions are designed to “validate a false underlying narrative of religious persecution” in America.