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For the fifth time, the U.S. Supreme Court has sided with religious adherents and against California’s COVID-19 restrictions. This time, the court barred the state from enforcing a rule that for now limits both religious and non-religious gatherings in homes to no more than three households.
The court’s unsigned order came on a 5-to-4 vote. Chief Justice John Roberts cast his lot with the dissenters, but failed to join their opinion. He noted simply that he would have left the lower court order in tact.
A panel of the Ninth Circuit Court Of Appeals ruled that because the state treated both secular and non-secular groups alike when it came to home gatherings, the state restriction was constitutional. The appeals court panel declined to temporarily block its own order pending appeal.
But even as home worshippers appealed to the Supreme Court, the state said it was in the process of modifying its rules as part of its ongoing process of easing restrictions by April 15.
None of that satisfied the Supreme Court majority, including Justices Clarence Thomas, Samuel Alito, and President Trump’s three appointees, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
Government regulations are not neutral when they “treat any comparable secular activity more favorably than religious exercise,” said the majority, noting that “it is no answer that a state treats some comparable…activities as poorly as…the religious exercise at issue.”
In dissent, Justice Elena Kagan, joined by Justices Stephen Breyer and Sonia Sotomayor noted that California has adopted a blanket regulation limiting all home gatherings to three households, and that just because the state does allow larger gatherings at hair salons and other retail venues does not invalidate the home gathering limit.
“The law does not require that the state equally treat apples and watermelons,” Kagan wrote, noting that people remain for longer periods in private homes, tend to gather more closely, and that homes do not typically have air purification systems or other protections that have been adopted by most businesses. The majority “once more commands California to ignore its own experts’ scientific findings, thus impairing the state’s effort to address a public health emergency,” said Kagan.
The court has done an about-face on these issues involving worship in churches, synagogues, mosques and now homes since the arrival of Justice Barrett. Until early 2021, after her arrival, the court, by 5-to-4 votes had generally deferred to the judgments of health departments and scientists when it came to state COVID-19 restrictions. Back then, it was Chief Justice Roberts who cast the fifth and deciding vote. But now it is Barrett, and Roberts is in the minority.