First Amendment text of the US Constitution on old parchment paper. Image courtesy of Adobe Stock.

In two rulings late on Friday, 2/5/21, the Supreme Court issued emergency injunctions in favor of two California churches allowing them to resume in-person worship services on 2/7/21.

The longer ruling with multiple concurring or dissenting opinions was issued on behalf of South Bay United Pentecostal Church, located in San Diego. The follow-on injunction, issued after the first, is shorter. It was issued on behalf of Harvest Rock Church, with its main campus in Pasadena, California and a large number of other campus locations around the state.

The day after the rulings were issued, Gov. Newsom’s office said the state will revise its public health orders regarding indoor worship services. For a brief reference on the issue see In Valley Daily bulletin on 2/6/21 – Newsom says state will revise indoor worship guides after Supreme Court ruling.

Two comments before you dig in. You may want to get a fresh cup of coffee since this will be a long read.  Also, you may encounter a bit of sarcasm and ridicule in later part of this post. Point-and-laugh-out-loud is an appropriate response sometimes. This is one of those times.

South Bay United Pentecostal Church

Injunction reinstating a portion of South Bay United Pentecostal Church’s constitutional rights is 15 pages long. Concurring opinions were written by Justices Barrett (Kavanaugh joins), Gorsuch (Thomas and Alito join). I obviously don’t understand the process very well because Chief Justice Roberts is listed as concurring with the otherwise unsigned opinion. Don’t quite know what that means but am guessing it means he wrote the opinion. Dissenting opinion issued by Justice Kagan (Breyer and Sotomayor join).

I am a bit slow on the uptake, but realize that the joining comments indicate where each of the Justices stand who did not otherwise issued a separate opinion.

The injunction prohibits the state of California from enforcing the absolute ban on indoor worship against South Bay United Pentecostal. The state is allowed to keep in place a 25% capacity restriction for indoor worship while the specific County is in Tier 1. The ban on singing and chanting is allowed to stay in place.

From the opinion, following is a comment after another comment that federal courts defer to politician’s assessments on public health issues:

“… At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”

My paraphrase: zero attendance in a massive sanctuary is unreasonable and thus is a flagrant violation of th First Amendment.

The opinion takes a shot at snide comments from Justice Kagan:

“But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure, …, but because they are. Deference, though broad, has its limits.”

My paraphrase: the deference federal courts owe to elected politicians does not give said politicians the right to cut the Bill of Rights out of the U.S. Constitution and put them in a shredder. Neither does it give a state government a bottle of white-out which may be applied to the Constitution “as it thinks appropriate.”

Justice Barrett

Justice Barrett points out the record in the lower courts is not clear regarding the ban on singing. Apparently, there is some ambiguity on equal application of this prohibition. It seems that singing is allowed in Hollywood production studios but not churches, which does create a massive problem for the state of California. One of her comments:

“Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue.”

The Justice essentially invites the church to provide more information in court if the ban is not generally applicable to everyone.

Justice Gorsuch

As mentioned before and will be repeated regularly, I am a bit slow to catch on to things. However, one thing I’m starting to understand is that Justice Gorsuch stands ready to shred foolish arguments, particularly when it comes to freedom related issues. In his dissent, he does not disappoint.

Here is a selection of his comments which provide background on the horrible weakness of the state’s case:

“… Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. … Apparently, California is the only State in the country that has gone so far as to ban all indoor religious services. … When a State so obviously targets religion for differential treatment, our job becomes that much clearer. “

Intentionally targeting religion for harsher treatment than comparable businesses. Yeah, that’s a great plan on how to survive a First Amendment challenge.

“… Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard.”

He outlines the state’s assertions:

“… Still, California says it can thread the needle. It insists that religious worship is so different that it demands especially onerous regulation. The State offers essentially four reasons why: It says that religious exercises involve (1) large numbers of people mixing from different households; (2) in close physical proximity; (3) for extended periods; (4) with singing. “ “… But California errs to the extent it suggests its four factors are always present in worship, or always absent from the other secular activities its regulations allow. Nor has California sought to explain why it cannot address its legitimate concerns with rules short of a total ban. Each of the State’s shortcomings are telltale signs this Court has long used to identify laws that fail strict scrutiny. “

He then shreds the assertions in turn. He identifies specifics where those factors exist in other industries and ways in which those factors might not occur in all worship. Either of those situations will invalidate the state’s reasoning for a total ban.

Read the opinion for the full, devastating analysis. A few comments:

“…Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks.”

Following comment is tactful and diplomatic although its meaning is brutally clear.

“…Recently, this Court made it abundantly clear that edicts like California’s fail strict scrutiny and violate the Constitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, … . Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.

What the Justice is saying is the Supreme Court has already ruled on these issues.

There is no reason whatsoever the current case should be in front of the court.

The lower level judges should have read the guidance the Supreme Court has already provided and applied it.

This makes clear in a written Supreme Court concurring opinion what I realized after the District Court’s and two different panels of the Ninth Circuit Court of Appeals ruled contrary to the Supreme Court’s holdings in Roman Catholic Diocese of Brooklyn. Specifically, all those judges flagrantly ignored guidance from the Supreme Court. For some reason, which nobody will state in public, all those judges did not want to be bothered following the explicitly clear guidance from the Supreme Court.

Read that comment again:

“…The current ruling should be unnecessary. The lower level judges should have read the guidance the Supreme Court has already provided and applied it.”


My paraphrase: do your job.

On the final issue of singing, apparently Hollywood to include “music, film, and television studios, are permitted to sing indoors.” The district court did not address the issue and the appellate court was not convinced, in spite of partial evidence, that any singing is allowed anywhere in the state. The opinion addresses this:

“… It seems California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.

Finally, on the alleged “temporary” nature of restrictions check out tactfully shredding of government policy:

“… No doubt, California will argue on remand, as it has before, that its prohibitions are merely temporary because vaccinations are underway. But the State’s “temporary” ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. 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. 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.”

Read that discussion again on moving goalposts and the idea that restoration of freedom is just over the horizon:

“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.”

Justice Kagan

Justice Kagan dissents without considering the strict scrutiny requirement for considering actions that are particularly adverse to the free expression clause. She sees no difference between worship services and hair salons.

In fact she sees no difference between an absolute ban on indoor worship services and getting your hair permed or nails done. She sees equal treatment in an absolute ban on indoor worship services and capacity restriction for restaurants.

She asks a range of rhetorical questions raising uncertainty about the ripple effects of the ruling. For example:

“…The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? …And who knows what today’s decision will mean for other restrictions challenged in other cases? The Court’s order exempts churches only from California’s indoor ban, leaving its capacity restrictions in place (at least for now). … But the scope of the order raises questions. When are such capacity limits permissible, and when are they not? And is an indoor ban never allowed, or just not in this case? Most important—do the answers to those questions or similar ones turn on record evidence about epidemiology, or on naked judicial instinct? The Court’s decision leaves state policymakers adrift, in California and elsewhere. It is difficult enough in a predictable legal environment to craft COVID policies that keep communities safe. That task becomes harder still when officials must guess which restrictions this Court will choose to strike down.

(Wow. It is almost as if the Justice has only discovered this week that Supreme Court rulings create massive turmoil in the lives of businesses, law enforcement agencies, and everyday citizens in trying to figure out how a Supreme Court ruling will affect dozens of issues that were not addressed in the ruling.)

(Double wow. I sincerely hope she will recall in the future that every opinion she ever writes will create huge uncertainty in unexpected directions for a massive number of people.)

Behold the following forays into searingly brilliant legal reasoning:

“…So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own.”

(Actually, I think the other justices took a completely different approach in reaching their conclusions. They actually read the Bill of Rights, specifically the First Amendment.)

“…Yet the Court will not let California fight COVID as it thinks appropriate.”

(Pro tip: a state government cannot follow through on everything it wishes merely because such action “it thinks appropriate.” There is that pesky Constitution to keep in mind.)

“…In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.”

(This is in stark contrast to the armchair economics, armchair accounting, armchair financial analysis, armchair financial modeling, armchair sexual behavior analysis, armchair psychology, armchair sociology, armchair philosophy, and armchair mind-reading that is invoked by every Justice of the Supreme Court in every foray into every case they have ever considered. That is their job! If my little pea-brain understands the Constitution correctly, that is exactly why they are the Supreme Court.)

“…The Court injects uncertainty into an area where uncertainty has human costs.”

(Unlike every other ruling from every federal judge. Again, if my little pea brain is working correctly, that is why those nine people sit on the Supreme Court of the United States. That is their job – to decide legal issues that have tremendous human costs.)

“…All this from unelected actors, ‘not accountable to the people.’ “

(As if that concept does not apply to every single ruling from every single federal judge, and double so to every ruling from the Supreme Court.)

“…I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. …“

(Actually, every person of faith in the state of California is already paying. Every one of us is already suffering irreparable harm.)

(Also, I’m only a businessman sitting at my little desk in my little corner of the world, but I don’t think the argument of WE’RE ALL GONNA’ DIE is particularly helpful in a legal analysis.)

Continuing with her dispassionate, rational, logical analysis:

“… Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors.”

(Just like in every other ruling ever issued from the Supreme Court.)

“…That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. …”

(Really? Judicial edict? It is as if that is never happened before. I live in California where I am subject to routine random judicial edicts from the Ninth Circus Circuit Court of Appeal.)

“I respectfully dissent.”

Harvest Rock Church

Injunction reinstating Harvest Rock Church’s constitutional rights follow the same structure as the South Bay United Pentecostal ruling.

Injunction stayed the absolute ban on indoor worship. The state is allowed to continue the percentage capacity limitations along with the ban on singing and chanting.

Door is open to the church providing additional evidence regarding the chanting and singing issue along with evidence on unequal enforcement of the percentage capacity. Those matters were apparently not well developed in the lower court documents.


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