Hitting reset on pandemic restrictions?
Religious Liberty | Supreme Court directs lower court to reconsider indoor worship ban
by Steve West
Posted 12/04/20, 03:38 pm
The Supreme Court on Thursday called into question a second state’s COVID-19 restrictions, setting aside a federal court ruling upholding California Gov. Gavin Newsom’s near-total ban on indoor worship.
Southern California’s Harvest Rock Church has multiple campuses in and around Los Angeles, and Harvest International Ministry has 162 member churches throughout the state. The churches sued in July, arguing Newsom’s executive order treated houses of worship unfairly. The district court ruled against the churches, but in a short, unsigned order, the Supreme Court without dissent vacated the decision. It instructed the Ninth U.S. Circuit Court of Appeals to send the case back to the district court for reconsideration in light of its Nov. 25 decision that blocked New York Gov. Andrew Cuomo’s COVID-19 restrictions on places of worship.
In the New York case, the court’s conservatives put the brakes on governors’ pandemic health orders. Justice Neil Gorsuch issued a particularly sharp critique: “Government is not free to disregard the First Amendment in times of crisis.” He added that “certain states seem to have ignored these long-settled principles”—implying that not only New York but other states had transgressed the religious liberty guarantee of the First Amendment.
Similar to the New York restrictions, the California “Blueprint” prohibits indoor worship for 99 percent of the state’s worshippers while allowing many businesses to open with either no capacity or numerical limits. The justices apparently saw enough similarity between California’s restrictions and the ones they struck down in New York to throw out the district court decision.
“The handwriting is now on the wall,” said Liberty Counsel’s Mat Staver, who represented the California churches. “The final days of Governor Gavin Newsom’s ‘color-coded executive edicts’ banning worship are numbered and coming to an end.”
It remains to be seen whether other states’ restrictions will fall. The court is considering an emergency petition challenging Kentucky Gov. Andy Beshear’s closure of the state’s private religious schools for in-person instruction. And two houses of worship in New Jersey—one Catholic, and one Jewish—are asking the court to block Gov. Phil Murphy’s order limiting indoor worship services to 150 people or 25 percent of the building’s maximum occupancy, whichever is less.
“The court’s new message is that lower courts should take a closer look at these orders,” said Thomas C. Berg, a professor at the University of St. Thomas School of Law in Minneapolis.
But the Supreme Court’s order does not assure that the churches will ultimately win their case, nor that the justices will allow every challenge, Berg said: “The California churches say the order there resembles New York’s by allowing too much latitude for businesses to operate while restricting churches—although that case could also be argued the other way, and it remains unclear how closely courts will scrutinize governors’ orders.”
What is clear is that the tide has turned, and governors may be more likely to pause before restricting worship.
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.