The fight over reopening churches reaches the Supreme Court

This is likely to end badly for public health.

A California church asked the Supreme Court over Memorial Day weekend for an exemption to the state’s stay-at-home order, claiming that the order violates the Constitution when applied to places of worship.

If granted, even a temporary emergency order would have sweeping national implications: It would be a clear signal that the Supreme Court, with its record of sympathy for religious conservatives, intends to expand “religious liberty” rights, even potentially at the expense of public health.

It is very likely that the Court will take up this case, South Bay United Pentecostal Church v. Newsom — or at least one like it from another place of worship that claims it has a right to hold in-person services during the coronavirus pandemic. Lower federal courts have split on whether churches have a constitutional right to hold services despite the pandemic, and the Supreme Court typically steps in to resolve conflicts among federal appeals courts.

What happens to states’ power to regulate in-person religious gatherings if the Court does rule in the church’s favor is unclear, but it is likely that more gatherings will occur that could spread the virus. Several outbreaks of Covid-19 have been traced back to churches, including an outbreak of at least 70 infections linked to a church in Sacramento, California, and an outbreak at an Arkansas church that sickened more than one-third of the congregation and killed three people.

If the Court does rule in favor of the church, many states would no longer be able to order places of worship to hold services online until the public health crisis ebbs sufficiently to allow people to gather safely for worship.

Some judges have suggested that states could issue narrower orders limiting the size of religious gatherings, but it’s unclear just how much a conservative judiciary will allow states to limit the size of church gatherings — and it is unlikely that states could effectively enforce such an order if churches are committed to defying it. There are only so many law enforcement officers in each state, and most of those officers have better things to do than to stand in the back of church services counting heads.

South Bay United arises just a few days after President Trump falsely claimed the power to order churches reopened on his own. Though Trump’s words have no legal effect, he remains the head of the Republican Party, and he wields a great deal of influence over many of his fellow partisans. So his rhetoric makes it more likely that a Republican-controlled judiciary will do something that Trump himself cannot: hold that stay-at-home orders affecting churches must be lifted.

The case should turn on whether stay-at-home orders are “neutral” with respect to religion

The Constitution guards against laws “prohibiting the free exercise” of religion, but that does not mean that any law that burdens anyone’s religious practices is unconstitutional. Rather, as Justice Antonin Scalia explained in Employment Division v. Smith (1990), “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”

That is, the government may subject religious institutions to the same regulations it opposes on others. It simply cannot single out the faithful for inferior treatment.

Lower courts, however, are bitterly divided on what constitutes a “neutral law of general applicability,” and whether it is possible for states to gradually allow different businesses and other institutions to reopen without running afoul of decisions like Smith.

California, like many states, instituted a strict lockdown order in March that closed most of the state’s workplaces, except for a small list of businesses deemed “essential.” As the spread of the disease slowed, however, the state permitted businesses to gradually start reopening. Currently, California is in “Stage 2” of this process, which allows manufacturers and some offices to reopen. Retail businesses may also reopen, although in much of the state they must offer curbside pickup.

In-person worship services, meanwhile, are grouped with movie theaters and other places where medium-sized groups of people gather for extended periods of time. Churches, theaters, and the like won’t be allowed to fully reopen until Stage 3. And the biggest gatherings, such as live concerts or sporting events, won’t resume until Stage 4.

So, to answer whether California’s stay-at-home order is “neutral” with respect to houses of worship, courts must answer a threshold question: “neutral” compared to what?

On the one hand, the California order does treat churches differently from, say, factories, in the sense that many factories are allowed to reopen sooner than churches. On the other hand, the order treats churches the same as entertainment venues, such as theaters, where people sit and gather for long periods of time, as they do in church.

The California stay-at-home order, in other words, is a “neutral law of general applicability” in the sense that it applies the same rules to both secular and religious institutions that gather medium-sized groups of people together in an auditorium-like setting. But some judges have read it as non-neutral because churches are treated differently than some businesses that do not gather people together in such a setting.

Perhaps unsurprisingly, lower court judges have largely split along partisan lines when weighing whether churches should be exempt from stay-at-home orders. In South Bay United, two federal appeals court judges appointed by Democratic presidents held that the California stay-at-home order does not run afoul of Smith.

“Where state action does not ‘infringe upon or restrict practices because of their religious motivation’ and does not ‘in a selective manner impose burdens only on conduct motivated by religious belief,’ it does not violate the First Amendment,” those two judges wrote, in an opinion quoting a 1993 Supreme Court decision.

Trump-appointed Judge Daniel Collins dissented, suggesting that the mere fact that the state has allowed some businesses to reopen, without doing the same for churches, renders the stay-at-home order constitutionally suspect. “The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, ‘religious services’ have not made the cut,” Collins wrote, adding that he is “at a loss to understand how the State’s current maze of regulations can be deemed ‘generally applicable.’”

A Republican panel of the United States Court of Appeals for the Sixth Circuit relied on similar reasoning when it held that churches must be allowed to reopen in Kentucky. That state allowed businesses such as “law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions,” but it did not permit churches to hold in-person gatherings. That rendered the Kentucky stay-at-home order constitutionally suspect, at least according to these three Republican judges.

The Supreme Court could overrule Smith

There’s also another reason to believe that the Supreme Court could favor churches and disfavor public health officials — there are probably five votes on the Supreme Court to overrule Smith and significantly expand the rights of religious conservatives who object to following particular laws.

Though Smith was authored by Justice Scalia, a conservative icon, it’s fallen far out of favor with judicial conservatives, who tend to support an expansive reading of the Constitution’s Free Exercise Clause.

In 2016, shortly after Scalia’s death temporarily deprived Republicans of a majority on the Supreme Court, Justice Samuel Alito penned a dissenting opinion arguing that pharmacy owners have a constitutional right to refuse to offer contraception, if those owners object to birth control on religious grounds. Though Alito’s opinion in Stormans v. Wiesman wouldn’t have explicitly overruled Smith, it would have narrowed it to the point of near irrelevance.

Notably, Alito’s Stormans opinion was joined by Chief Justice John Roberts and Justice Clarence Thomas. And Alito’s two newest colleagues, Justices Neil Gorsuch and Brett Kavanaugh, both have very conservative records in “religious liberty” cases. So it is likely that there are now five votes to, at the very least, significantly expand the power of religious objectors to defy generally applicable laws.

Last February, moreover, the Supreme Court announced that it would hear Fulton v. City of Philadelphia, a case asking whether religious organizations have a constitutional right to defy Philadelphia’s ban on anti-LGBTQ discrimination by government contractors. The plaintiffs in Fulton explicitly ask the Supreme Court to overrule Smith.

Even before the pandemic, in other words, the Court’s Republican majority has been eager to expand “religious liberty” rights. They even agreed to hear a case that could remove one of the primary obstacles to religious objectors who seek exemptions from state laws.

South Bay United, in other words, presents a question that the Court is already very interested in deciding: whether the rights of religious objectors should be expanded. And it is likely that a majority of the Court will vote for such an expansion.

States might be able to issue narrower orders regulating church gatherings, even if the Supreme Court does rule against the state in South Bay United

If the Supreme Court does overrule Smith, or otherwise hold that stay-at-home orders targeting churches are constitutionally suspect, there is still a constitutional safety value that could prevent churches from being freed from public health regulation altogether.

As a general rule, state governments have a broad power to regulate in ways that advance a compelling interest — such as the protection of human life from a deadly disease — so long as those regulations are narrowly tailored to impose the least possible imposition on constitutional rights. Indeed, this safety valve applies even when the government burdens many rights that are explicitly protected by the Constitution. As Justice Robert Jackson warned more than seven decades ago, the Constitution should not be read as a “suicide pact.”

But the burden is on the state to show that its order is sufficiently narrowly tailored, and it is far from clear that this Supreme Court will invoke this safety value to preserve broad stay-at-home orders like the one in California. The Sixth Circuit’s decision exempting churches from Kentucky’s stay-at-home order, for example, determined that the state’s order was not sufficiently narrowly tailored because Kentucky could have taken actions that imposed fewer burdens on churches — such as allowing churches to hold in-person services, but limiting the number of people who can attend those services.

The state would probably be able to issue a new, narrower order if a broader order is struck down. But the fate of that new order would also be in the hands of a conservative judiciary.

If the Supreme Court agrees with the Sixth Circuit on this point, that will likely set off a new round of litigation. States will likely issue new orders limiting the size of religious gatherings, and churches will likely file new lawsuits claiming those limits are also too restrictive. It is unclear how courts will resolve these challenges, and equally unclear how states will enforce limits on the number of people who can attend worship services.

But the Sixth Circuit’s rationale would, at the very least, still permit some regulation of religious gatherings that could spread the coronavirus.

There will most likely still be a great deal of legal uncertainty even if the Supreme Court does side with the church in South Bay United. But there will also almost certainly be many more public gatherings that could transmit the virus.

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