This post was authored by Otten Johnson summer associate Laura Salter.  Laura is a rising third-year law student at the University of Colorado Law School.

In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19.  The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.

The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination.  The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order.  The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated.

Four justices of the Supreme Court–Breyer, Ginsburg, Kagan, and Sotomayor–voted to deny the requested relief, without any written opinion.  Chief Justice Roberts concurred in the decision, but wrote a brief concurring opinion.  In his  opinion, the Chief Justice noted that while some activities were exempt from the order or treated with more leniency than religious services, the activities allegedly favored by the state (such as grocery shopping) differed from worship services in that they did not typically encourage large groups of people to be in close proximity for extended periods of time. Secular gatherings that did encourage prolonged contact in close quarters, such as concerts, were subject to similar or even more severe restrictions, leading the Chief Justice to conclude that the guidelines were consistent with the Free Exercise Clause.  Roberts’ opinion ultimately rested on the Court’s deference to state governments and public health authorities, noting that state authority is further broadened by the scientifically, socially, and politically complicated landscape of COVID-19.  What’s more, the Chief Justice observed that the plaintiff sought injunctive relief–not a more limited stay–and thus had a heightened burden to establish that the executive order was unconstitutional.

Justice Kavanaugh, joined by Justices Thomas, Alito, and Gorsuch, acknowledged in his dissent that responding to COVID-19 was indisputably a compelling governmental interest, but agreed with the plaintiff that the order’s discrepancy in treatment between secular and religious gatherings is unconstitutionally discriminatory. The dissent, unmoved by the Chief Justice’s justification for the state’s differences in caps, held firmly to absolutes in uncertain times:  “The State … has substantial room to draw lines, especially in an emergency. But … the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.”

The Court’s order caps a whirlwind of requests for temporary restraining orders by religious and nonreligious entities seeking to challenge state limitations on non-essential businesses and public gatherings.  While it seems that, following the Court’s decision, it will be more difficult for plaintiffs to obtain temporary restraining orders or preliminary injunctions against state public health orders issued in response to COVID-19, the Court’s decision does not automatically end these cases.  We fully expect that many of these cases will be fully litigated, with the added benefit of discovery and additional briefing.

South Bay United Pentecostal Church v. Newsom, No. 19A1044, 590 U.S. ___ (May 29, 2020).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private…

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.