Singing is an especially dangerous activity during this pandemic because it is unusually likely to spread Covid-19.
Less than five months ago, the plaintiffs in South Bay United Pentecostal Church v. Newsom, would have had little chance of prevailing. They seek exemptions from a California public health order requiring many institutions — including houses of worship — to gather outside to avoid spreading Covid-19. They also seek an exemption from a statewide ban on singing or chanting indoors.
But a lot has happened in the last five months which suggests that the South Bay plaintiffs are now likely to prevail. Justice Ruth Bader Ginsburg died, and was replaced by the hardline conservative Justice Amy Coney Barrett. Then, on the night before Thanksgiving, the Supreme Court handed down a revolutionary decision that upended decades of precedent distinguishing between laws that discriminate against people of faith (which are typically not allowed) and laws that apply to religious and secular institutions alike (which were typically permitted).
That case, Roman Catholic Diocese of Brooklyn v. Cuomo (2020), halted New York state’s rules that placed strict limits on how many people could gather inside houses of worship, at least in areas with particularly severe outbreaks. So the Court’s 5-4 decision in Roman Catholic Diocese could foreshadow a Supreme Court decision blocking California’s rules requiring many religious services to be conducted outdoors.
The state’s ban on indoor singing and chanting, however, presents a novel question. As one of California’s expert witnesses testified to a trial court that left that ban in place, “most scientists believe that group singing, particularly when engaged in while in close proximity to others in an enclosed space, carries a high risk of spreading the COVID-19 virus through the emission of infected droplets.”
Significantly, the state’s ban on indoor singing applies not just to religious institutions, but also to secular activities such as political protests and school functions.
Thus, for reasons I’ll explain below, the South Bay plaintiffs’ challenge to the indoor singing ban tests even the extraordinarily favorable regime for religious objectors that the Court laid out in Roman Catholic Diocese. That doesn’t mean that those plaintiffs will fail in their quest for an exemption from this ban, but it does mean that South Bay could expand the Court’s solicitousness towards religious conservatives even more than its Roman Catholic Diocese decision.
The Roman Catholic Diocese case was a revolutionary change to the Court’s approach to religion.
Prior to Roman Catholic Diocese, the Court drew a line between cases involving religious discrimination, and cases brought by religious plaintiffs who sought an exemption from a broadly applicable law, under the Constitution’s safeguards for the “free exercise” of religion.
Under the Court’s decision in Employment Division v. Smith (1990), state laws may be enforced against people with religious objections to those laws, so long as the challenged policy is a “neutral law of general applicability.” Laws that single people of faith out for inferior treatment are suspect, but state laws that treat such individuals the same as everyone else were typically upheld — even if they imposed some burdens on religious exercise. (It’s worth noting that a federal statute applies a stricter rule to federal laws that burden religious exercise, but that statute is not at issue in South Bay and does not apply to California.)
Meanwhile, a state law that discriminates against a particular religion, or against religious institutions generally, will normally be struck down.
But what constitutes discrimination? Prior to Roman Catholic Diocese, the Supreme Court’s precedents indicate that states were only required to treat religious activity the same as “analogous non-religious conduct.” Indeed, this was the rule that the Supreme Court followed last May, in an earlier challenge to California’s public health rules brought by the same plaintiff that is now before the Court in South Bay.
In this first South Bay case, the Court voted 5-4 to uphold a public health order placing a cap on the number of people who could attend a worship service. As Chief Justice John Roberts explained in a concurring opinion, while the public health rules at issue in the first South Bay case did burden houses of worship, “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.”
Thus, because houses or worship were treated similarly to, or better than, other institutions where people gather in auditorium-like settings for extended periods of time, the cap on attendance at worship services was upheld.
But four months after the first South Bay case, Justice Ginsburg died, and Barrett’s confirmation gave the dissenters in the South Bay case the votes they needed to drastically change the law.
Like the first South Bay case, Roman Catholic Diocese involved state public health rules that placed a cap on attendance at worship services in certain parts of the state. Also like the first South Bay case, New York’s rules did not treat places of worship worse than other, similar institutions. Indeed, while New York allowed houses of worship to hold services for a limited number of people, public gatherings such as lectures, concerts, or theatrical performances were outright banned in the relevant parts of New York.
And yet the Supreme Court’s new majority blocked New York’s restrictions on religious services, pointing to the fact that some businesses, including “acupuncture facilities, camp grounds, [and] garages,” were allowed to admit more people than places of worship.
Roman Catholic Diocese, in other words, effectively abandoned the rule that states may regulate religious institutions so long as those institutions must follow the same restrictions that are applied to “analogous non-religious conduct.” After Roman Catholic Diocese, a law regulating a religious institution might be struck down if the state imposes fewer burdens on any secular business, no matter how different that business may be from that religious institution.
The South Bay plaintiffs hope to take advantage of Roman Catholic Diocese’s highly restrictive approach to state lawmaking.
If you accept the Court’s decision in Roman Catholic Diocese, then the South Bay plaintiffs have a very strong case against California’s restrictions on indoor services.
One frustrating thing about court cases challenging Covid-related public health orders is that the substance of those orders frequently change while the case is still pending — often becoming more restrictive during severe outbreaks and less restrictive as outbreaks subside. California relaxed some of its restrictions shortly after the South Bay plaintiffs filed their request for relief in the Supreme Court.
Currently, places of worship in most of the state are required to conduct services outdoors. Similar outdoor-only restrictions apply to movie theatres, gyms, restaurants, and “family entertainment centers.” Live audiences are prohibited at sporting events.
Under the law that existed prior to Roman Catholic Diocese, these severe restrictions on worship services would have been upheld. Requiring all such services to be held outdoors is a serious constraint, but similar secular venues such as movie theaters and professional sports are subjected to similar — or even more restrictive — limits.
After Roman Catholic Diocese, however, the South Bay plaintiffs have a very strong case against the restriction on worship services. Though California’s rules close some businesses, they allow retail stories such as groceries to remain open at limited capacity.
Of course, there are obvious distinctions between a church and a Kroger. As a federal trial judge noted in an opinion upholding California’s restrictions, people attending worship services tend to engage in high-risk activities such as gathering together in groups, socializing for prolonged periods of time, and singing. People typically do not congregate together and sing at the grocery store.
But, after Roman Catholic Diocese, it is far from clear that these obvious differences between houses of worship and retail stores matter, at least in the eyes of the Supreme Court. It’s possible that the Court will uphold California’s restrictions, under a doctrine that permits burden of religion that use the “least restrictive means” to advance a “compelling state interest,” but that outcome seems unlikely in this very conservative Court.
The ban on indoor singing and chanting, meanwhile, presents a somewhat novel question. As noted above, California does not single out religious singers and chanters for inferior treatment. The same restriction applies to political protesters, to school music recitals, or to drunken gatherings that break out into spontaneous renditions of “Wellerman.”
Nevertheless, the South Bay plaintiffs claim that the indoor singing ban is discriminatory because, they claim, “speaking loudly or shouting” is still allowed in Hollywood television studios or in locker rooms for professional athletes. (Although live audiences are prohibited at sporting events, professional teams aren’t required to shut down entirely.)
If the Supreme Court accepts this argument, that could be tantamount to a decision holding that there’s no such thing as a “neutral law of general applicability” which can be applied to religious institutions. It would mean that religious objectors would gain a broad power to challenge virtually any law, so long as they can show that any secular business anywhere is allowed to engage in activity that is vaguely similar to the conduct that the religious objector wishes to engage in — no matter dissimilar that business may be from a religious institution.
Roman Catholic Diocese was a clear sign that the Supreme Court is willing to increase the risk of spreading Covid, if doing so also benefits religious conservatives. South Bay could show us just how far the Court is willing to go in tearing down public health orders — and, potentially, many other laws — in service of its ideological view of “religious liberty.”
Author: Ian Millhiser