Last Friday evening, by a vote of 5 to 4, the Supreme Court denied South Bay United Pentecostal Church’s application for an injunction against state and county occupancy limits on religious-worship services. As is customary on emergency applications, the majority (the liberal justices and the Chief Justice) did not issue an opinion explaining its grounds. The Chief Justice, however, issued a two-page opinion concurring in the denial. He evidently did so in order to respond to Justice Kavanaugh’s three-page dissent (which Justices Thomas and Gorsuch joined).
1. The complexion of the case had changed significantly since the Ninth Circuit’s divided panel ruling a week earlier. When the Ninth Circuit ruled, state and county orders barred churches from holding any in-person religious services. By last Friday, a new set of orders allowed churches to hold in-person religious services so long as they limited attendance to 25% of building capacity or a maximum of 100 people (whichever is lower) and implemented social-distancing measures.
According to the church, its “sanctuary seats 600 persons, and each service normally brings in between 200 and 300 congregants.” It argued that the new set of orders caused it harm because attendance at each of its services would be limited to 100 people. The state countered that the social-distancing measures that the church did not object to would likely keep occupancy below the usual levels; that the church was free to increase the number of its services; and that the ongoing pandemic might also have attendance lower than normal.
2. Given the changing state of affairs amidst the pandemic and the uncertainty over whether the orders would have any real impact on the church, I can understand why a justice would be disinclined to intervene to enjoin the orders. The Chief Justice relies on these factors in explaining his position: it “is especially true” that judges should be wary of intervening when a party “seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.” Had he confined his opinion to these considerations, I think that it would have been stronger.
Instead, the Chief, in what strikes me as a significant departure from the minimalism that he often encourages (“if it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”), makes three expansive declarations.
a. The Chief states that the restrictions that the orders place on churches are similar to, or less severe than, the restrictions that “apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The orders, he maintains, exempt or treat more leniently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
The Chief is arguing, in other words, that the orders are neutral and generally applicable and thus do not present a Free Exercise problem. But he doesn’t address the fact that factories and offices—where people often are in large groups in close proximity for extended periods—aren’t subject to the occupancy caps that churches face.
The question of what it means for a law or order to be neutral and generally applicable—in particular, which persons or activities are to be considered part of the relevant group—is sometimes a difficult one. The Chief’s apparent intuition that factories and offices aren’t relevant to the inquiry in this case might be right. But he seems to have decided the question without in fact addressing it, and I wonder whether it would have been better if he had simply said nothing on the matter.
b. In the fourth (and longest) paragraph of his opinion, the Chief sets forth his view that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” (As Josh Blackman points out, he even includes a very odd citation to Justice Blackmun’s opinion in Garcia v. San Antonio Metropolitan Transit Authority.) But there is nothing “precise” about that very broad “question,” and this case, which involves a specific claim that orders violate Free Exercise rights, is a curious occasion to invoke the broad authority over health and safety that the Constitution “principally entrusts” to state officials. I don’t see what value this paragraph adds to the Chief’s analysis.
c. The Chief frames his overall inquiry by maintaining that the burden that the church faces in obtaining “judicial intervention that has been withheld by lower courts” is especially high and that such relief should be granted only when “the legal rights at issue are indisputably clear” and “only in the most critical and exigent circumstances.” But is this really a standard that the Court, or the Chief himself, has consistently applied?
I’m unclear on how the distinction that the Chief draws between requests for injunction and requests for stays makes sense: the stay pending certiorari, for example, that the Chief and the four liberal justices granted in June Medical Services v. Gee prevented the Louisiana abortion law from taking effect and thus involved judicial intervention that had been withheld by the Fifth Circuit. (Yes, the district court had barred the law from taking effect, but surely the Chief isn’t suggesting that his vote on the emergency application in this case might have been different if the district court had granted the church relief and the Ninth Circuit had reversed the district court, is he?)