Churches are not Grocery Stores

Friday night, the Supreme Court denied an application by a California church challenging California’s COVID-19 restrictions on churches.  In South Bay United Pentecostal Church v. Newsom, the church claimed that Governor Newsom engaged in religious discrimination by limiting attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower, but allowing businesses like grocery stores to operate under looser guidelines.  The Court split 4-1-4 over whether to enjoin the California restrictions, with Justices Thomas, Alito, Gorsuch and Kavanaugh dissenting from the denial (in other words, they would have granted the application and enjoined the law).  The split on the Court was over what churches more resembled:  grocery stores, or movie theaters?
Kavanaugh, writing for himself, Thomas and Gorsuch (Justice Alito, curiously, did not join the written dissent), agreed that “California undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens,” but felt that “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Justice Kavanaugh posed the following questions (which appeared to come directly from the Church’s brief): “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”  Because Kavanaugh felt that churches were similar to and should be treated the same as grocery stores, he would have found impermissible religious discrimination.
But Chief Justice Roberts, who agreed with the four liberal justices that the application should be denied, wrote separately largely to answer Kavanaugh:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Because Roberts felt that churches were more similar to theaters, and that the question of when restrictions should be lifted was “subject to reasonable disagreement,” he concluded that such decisions “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”