A church in San Diego has appealed to the Supreme Court to intervene in its ongoing lawsuit challenging California’s heavy-handed and allegedly discriminatory restrictions on houses of worship that purport to combat the virus that causes the disease COVID-19.
Religious leaders have been emboldened since the Supreme Court last week blocked New York Gov. Andrew Cuomo, a Democrat, from enforcing tough pandemic-related restrictions on attendance at houses of worship, a dramatic departure from the high court’s recent hands-off rulings giving states free rein to limit constitutional rights while combating COVID-19.
That 5–4 decision came after constitutional conservative Justice Amy Coney Barrett recently took her seat on the court, replacing Justice Ruth Bader Ginsburg, who died Sept. 18. In the weeks leading up to that ruling, a short-handed Supreme Court deadlocked 4–4 in a series of rulings challenging pandemic-related strictures on religious worship.
The new request to roll back the curbs on church activity that were ordered unilaterally by California Gov. Gavin Newsom, a Democrat, came in a petition filed Nov. 24 with the Supreme Court in the matter of South Bay United Pentecostal Church v. Newsom. The leader of the congregation, Bishop Arthur Hodges III, is also listed as a petitioner alongside his church.
Newsom’s rules assign different colors to California counties and corresponding restrictions for all sectors of the economy. Critics say this “Blueprint for a Safer Economy” is complex, unwieldy, and difficult to understand. Religious leaders are incensed that in-person church attendance caps are low and that the rules ban singing and chanting in some places.
Such color-coding was targeted by Justice Neil Gorsuch in the Cuomo case.
In his concurring opinion, Gorsuch wrote that judges have to protect fundamental rights and “may not shelter in place when the Constitution is under attack.”
“It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques,” he wrote.
Thomas More Society special counsel Charles LiMandri, who is representing the petitioners, said in a statement that Newsom’s rules provide “disparate treatment of places of worship but [have] exacerbated the discrimination by targeting a core practice of South Bay’s religious expression—the ability to raise one’s voice to worship God in song.” The Thomas More Society is a public-interest law firm.
“While millions of Californians across the state in a wide range of industries have been able to resume working and shopping, applying new mask-wearing and social distancing protocols, church services remain a disfavored activity in the eyes of Governor Newsom and the County of San Diego,” LiMandri wrote.
According to the applicants’ brief, appellate courts are divided as to the constitutional standard to be used for reviewing free exercise clause challenges to pandemic restrictions. Courts in the 5th and 6th circuits have upheld claims under the free exercise clause, while those in the 2nd, 7th, and 9th circuits have rejected such claims, often relying on the Supreme Court’s 1905 decision in Jacobson v. Massachusetts to justify deference to the state.
After the ruling in the Cuomo case, Thomas More Society special counsel Christopher Ferrara described the Jacobson precedent as “a 115-year-old anachronism, which over the past eight months has morphed into a kind of super-precedent for any sort of restriction on constitutional freedoms governors feel like imposing during a public health crisis.”
In the case at hand, the petitioners are asking the Supreme Court to decide whether Newsom’s blueprint-based restrictions violate the church’s right to free exercise of religion and what the proper standard of review should be in similar legal challenges.
The applicants filed what is called a petition for certiorari before judgment, which means they are asking the Supreme Court to pass judgment before the 9th Circuit Court of Appeals, which is currently considering the case, makes a final disposition, because, they argue, the matter is of great importance.
According to the Supreme Court’s Rule 11, such a petition will be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”
Newsom’s office couldn’t be reached immediately for comment.