Looking over the nation’s pandemic landscape, it is difficult to argue that some states have treated religious worship — which enjoys unique protections in the Constitution — on an equal footing with other activities that weren’t given similar importance by the Founders. Thankfully, the U.S. Supreme Court has recognized this, first in a November decision striking down restrictions on religious gatherings in New York, and now, in an injunction late last week against a ban on indoor worship services in California.
The issue is consistency. Governments discriminate against the “free exercise” of religion, to use the First Amendment’s wording, when they allow gatherings for secular purposes, whether to shop, receive a haircut or manicure or assemble in bus or train terminals, but forbid worship services or require them to be held exclusively outdoors.
As Justice Neil Gorsuch wrote in the most recent case, which involved a Chula Vista church that challenged a state ban that forced many churches to hold meetings in outdoor parking lots, states have been constantly changing rules on gatherings during the pandemic while treating religion as less important than other things.
“Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new benchmarks that always seem to put restoration of liberty just around the corner,” he wrote. “As this crisis enters its second year — and hovers over a second Lent, a second Passover, and a second Ramadan — it is too late for the state to defend extreme measures with claims of temporary exigency, if it ever could.
“Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues and mosques, something has gone seriously awry.”
The court’s three more liberal justices dissented, arguing that the court does not have the scientific expertise to override health officials. However, some state regulations seem to have little relation to science.
Gorsuch was quick to note inconsistencies, especially involving singing. “Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield,” he wrote. “Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.”
The entertainment industry is not under such restrictions.
Before critics begin howling that people will die because of this injunction, it is important to note that the injunction allows the state to limit congregations to 25% of capacity, which the state had applied to counties it had categorized as Tier 2. It also, despite the concerns of Gorsuch, left in place a ban against singing.
But it specifically allows churches to continue arguing that restrictions are not being applied equally.
Back in November, the court’s majority said that, “in a pandemic, the Constitution cannot be put away and forgotten.”
To millions of Americans, for whom religious worship services and the ordinances and ceremonies attached to them are of vital spiritual importance, that is great news.