The U.S. Supreme Court weighed in for the first time on a COVID-19 related issue that recently has divided federal and state courts: whether restrictions on religious gatherings during the pandemic can be constitutional. As we previously wrote, some courts have held that these restrictions are unconstitutional. They found that precluding indoor religious gatherings even in cases where social distancing and other precautions are observed, while allowing grocery stores, retailers, and similar secular entities to allow individuals if social distancing and other precautions are taken to be unconstitutional discrimination against religious groups. Other courts have held that the restrictions are constitutional because religious gatherings are not akin to exempted entities like grocery stores and pharmacies, but are more similar to secular entities such as movie theaters and concert venues, which are subject to the same restrictions.
In a 5-4 decision, the Court refused to enjoin enforcement of California’s restrictions on religious gatherings, thus siding with those courts that have upheld these restrictions. There was no majority opinion. But Chief Justice John Roberts, in the majority, provided his reasoning in a concurrence.
The Chief Justice stated that California’s “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.” By contrast, the California restrictions “exempt or treat 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.”
The Chief Justice noted that it is the role of elected branches of government, rather than the courts, to protect “[t]he safety and health of the people.” Their “latitude” to act in such matters “must be especially broad,” and courts should not second-guess officials acting within “those broad limits.” Courts, he said, lack “the background, competence, and expertise to assess public health” and are “not accountable to the people.” The Chief Justice concluded that it would be particularly inappropriate to enjoin California’s gathering restrictions based on an application for emergency relief without a full record, and in the face of “changing facts on the ground.”
Justice Brett Kavanaugh wrote a separate opinion on behalf of himself and the other three dissenters. He argued that “[t]he basic constitutional problem is that comparable secular businesses are not subject” to the California restrictions, including “factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” Justice Kavanaugh stated that although the government had a compelling interest in combating the pandemic, it had failed to provide “a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.” He quoted a Sixth Circuit decision that we wrote about here: “[a]ssumming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew?”
Justice Kavanaugh concluded by stating that although California “has substantial room to draw lines, especially in an emergency . . . the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.” Justice Kavanaugh did not directly respond to the Chief Justice’s opinion or his argument that religious gatherings are not similar to the secular entities he listed in the dissent.
This is one of several pandemic-related constitutional issues that have already made their way to the Supreme Court (you can read more about the Court’s rejection of an application to stay Pennsylvania’s “stay at home order” here).
 Available at https://www.supremecourt.gov/opinions/19pdf/19a1044_pok0.pdf.
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 Id. (brackets in original) (internal quotation marks omitted).
 Id. (internal quotation marks omitted).
 Id. at 2-3.
 Id. at 1.
 Id. at 2.
 Id. at 3 (internal quotation marks omitted).
 Id. at 4.