Gateway City Church v. Newsom, No. 20A138 (U.S.) February 26, 2021.

In early February the United States Supreme Court enjoined California’s wholesale preclusion of indoor worship, while leaving in place percentage of capacity limitations and restrictions on singing and chanting indoors during services. South Bay United Petecostal Church v. Newsom, No. 20A136, 592 U.S.       (February 5, 2021).   Four opinions issued, as outlined below

• Justices Thomas and Gorsuch would grant all the relief sought by the church.  
• Justice Alito would enjoin the capacity and vocalizing restrictions but would stay the injunction on percentage of capacity restrictions to give California an opportunity to demonstrate that only the restrictions in controversy could halt indoor contagion to the same degree as those in place in activities the state deems essential.  
• Chief Justice Roberts wrote to reiterate the Court’s earlier expression of the importance of deference to political officials in fashioning pandemic relief, but concluded that “deference has its limits,” observing that the issue of singing indoors may be founded in public health but the conclusion that all indoor public worship is unsafe seems ill-considered.
• Justices Barrett and Kavanaugh opined that the church had not established entitlement to relief from the singing ban, the scope and applicable tests for which are not, in their views, clear.
• Justice Gorsuch, with Justices Thomas and Alito, would grant all injunctive relief as California’s imposition of more stringent restrictions on churches than on secular activities cannot survive Free Exercise challenge.
• Justice Gorsuch opined that California could not demonstrate that its unequally applied measures — including a ban on all indoor worship — were the least restrictive means to achieve the government’s inarguably compelling interest in inhibiting the spread of disease.
• California cannot demonstrate any cognizable difference between personal crowding and mingling in church versus commercial settings and cannot support a total prohibition of worship, Justice Gorsuch concluded.  
• The inexplicable imposition of more stringent measures on religious activities than on secular gatherings cannot survive strict scrutiny, Justice Gorsuch opined, commenting that the present case ought not have come before the Court, as the Court’s earlier decisions on the same questions compelled the same results in this case.
• Justice Gorsuch noted that the focus of the present order is on the wholesale preclusion of indoor worship and that additional challenges might be brought concerning other measures.
• Justice Gorsuch cautioned against championing the singing exclusion as a reasonable deterrent to disease where the entertainment industry has obtained an exemption from it. 
• Nor is the scope of the singing exclusion comprehensible:  even if an entire congregation singing together might raise risks, what of a single cantor?  California’s confusing regulations do not deserve particular deference. 
• Whie California offers that some enterprises have adopted self-help in the form of testing requirements, Calfirnai fails to explain why such adaptations would not be permitted to churches. 
• In all, Justice Gorsuch concluded, Californaita “must do more to tailor the requirements’ of public health to the rights of its people.”  Statement of Gorsuch, J., slip op. at 6.
• The ”temporary” justification proffered by California rings hollow where “temporary” bans have been in place for months and the nation is entering a second year of restrictions.
• Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, observing that as justices they are neither scientists nor experts in public health, into which territory the majority wrongly ventured in this case. The state granted worship parity with similar secular assemblies:  the Court erred in compelling the state to apply rules to churches that apply to less risky gatherings. 
• The dissenting justices observed that while those who are similarly situated ust be treated similarly, it is not true that those who are not must be compelled to conform to each other, as the Court has done here.  The dissenting justices assert that the same measures such as masking, distancing, singing, and capacity apply to religious and secular activities alike in California.
• The determination that Free Exercise principles must prevail is faulty in fact, for some religious and secular gatherings are similarly treated, and in law, for the Court has impeded the state in meeting its obligation to promote the health and safety of its people  
• The Court’s earlier decisions do not compel the present result, the dissent found, because no group was singled out here for inferior treatment  
• Moreover, as a practical matter, the intrusion of the Court into California’s operations open up entirely new questions to be addressed when time and resources are scarce. If the Court has erred and lives are endangered, the Court will pay no price, the dissent observed, as the justices are insulated by lifetime tenure and physically protected against harm.  

One week after the order was entered in South Bay United Pentecostal Church v. Newsom, supra, the Ninth Circuit denied relief to Gateway City Church, upholding the ban on indoor worship, and concluding that where secular and religious entities were subject to the same restrictions, no constitutional violation could be found, particularly, where houses of worship were not singled out for unfavorable treatment.  Gateway City Church v. Newsom, No. 21-15189 (9th Cir.) February 12, 2021. 

Moreover, the Ninth Circuit found that there had been no showing that the prohibition on indoor gathering was other than a neutral and generally applicable law, requiring no more than rational basis review.  Id.  

Gateway City Church sought relief from the Ninth Circuit’s order in the Supreme Court.  The request was opposed but one day after the opposition was filed that state advised the Supreme Court that the challenged regulations would soon end.

The Supreme Court declined the tacit invitation to allow the church’s request to become moot, and issued an order declaring the Ninth Circuit to have erred, and in particular erred in denying relief to the church when a contrary result was “clearly dictated” by the decision in South Bay United Pentecostal Church.  

South Bay United Pentecostal Church v. Newsom No. 20A136 , 592 U.S. ___(February 5, 2021)

Gateway City Church v. Newsom, 9th Cir. Order February 12, 2021

Gateway City Church v. Newsom, No. 20A138 , U.S. Sup.Ct. Order February 26, 2021