“Justices of this court are not scientists,” she said. “Nor do we know much about public health policy. Yet today the court displaces the judgments of experts about how to respond to a raging pandemic.”
Kagan argued that the court was not treating worship services “like activities found to pose a comparable COVID risk, such as political meetings or lectures.” Rather, it was wrongly treating this type of communal gathering “like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store.”
“The state is desperately trying to slow the spread of a deadly disease,” she said. “It has concluded, based on essentially undisputed epidemiological findings, that congregating together indoors poses a special threat of contagion. So it has devised regulations to curb attendance at those assemblies and — in the worst times — to force them outdoors.”
Kagan noted that the Supreme Court itself is conducting business by phone rather than in person because of the epidemic.
Eric Rassbach, vice president and senior counsel at the Becket religious liberty legal group, welcomed the decision.
“California had no right to declare itself a religion-free zone,” Rassbach said. “When every other state in the country has figured out a way to both allow worship and protect the public health, maybe you are doing it wrong. We are glad this extreme violation of our first freedom has finally come to an end.”
Becket had submitted an amicus brief in the case.
“When it comes to First Amendment rights, courts should not rubber-stamp public health restrictions,” said Rassbach. “That is especially so as we near the one-year anniversary of the lockdown orders. Instead, courts should carefully balance the right to worship and public health.”
Archbishop Cordileone called the ruling “a breath of fresh air in dark times.”
“I want to thank all those who have worked tirelessly to affirm that the worship of God is the most essential service of all, especially the leaders of South Bay and Harvest Rock churches. I’d like also to thank warmly those Catholics who joined me in standing up against abuses of power by signing the petition at FreeTheMass.com,” he said.
The Supreme Court’s injunction in South Bay United Pentecostal Church v. Newsom cited its November ruling which overturned New York State’s 10- and 25-person limits on in-person worship. The Orthodox Jewish group Agudath Israel and the Roman Catholic Diocese of Brooklyn had challenged Gov. Andrew Cuomo’s strict limits.
(Story continues below)
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That 5-4 decision said there are “many other less restrictive rules that could be adopted to minimize the risk to those attending religious services.”
“Even in a pandemic, the Constitution cannot be put away and forgotten,” the court said. “The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
In May 2020, in the early months of the epidemic, the court had rejected the South Bay church’s emergency appeal challenging the coronavirus rules. Since that decision, Justice Amy Coney Barrett has replaced Justice Ruth Bader Ginsburg.