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A few moments ago, I blogged about South Bay United Pentecostal Church v. Newsom. Here, I will make three more observations about Chief Justice Roberts’s concurrence.

First, Roberts’s concurrence brought to mind his Obergefell dissent. Roberts didn’t cite Holmes’s dissent from Lochner v. New York (1905), but he may as well have. He relied on Jacobson v. Massachusetts (1905):

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).

The citation to Jacobson is inapt under longstanding precedent. That case concerned (what we would today call) a substantive due process challenge to a mandatory vaccination law. Jacobson relied on the same sort of liberty-based argument raised in Lochner and other Progressive Era cases. Jacobson is still good law for other substantive due process cases, such as those involving abortion. Indeed, Roe v. Wade favorably cited Jacobson, as well as Buck v. Bell. But Jacobson has no relevance in a case concerning an enumerated provision of the Bill of Rights. Longstanding concerns about unelected judges creating free-floating rights is not a problem with the First Amendment. Footnote Four of Carolene Products (for those who find that dictum useful) specifically treats enumerated rights differently than unenumerated rights. (That disparity is inconsistent with the Ninth Amendment, but that debate is for another day.)

Judge Collins, who dissented from the 9th Circuit decision, recognized why Jacobson should be limited to substantive due process cases:

Nothing in Jacobson supports the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards. As the Second Circuit has recognized, Jacobson merely rejected what we would now call a “substantive due process” challenge to a compulsory vaccination requirement, holding that such a mandate “was within the State’s police power.” …

Jacobson had no occasion to address a Free Exercise claim, because none was presented there. (That is unsurprising, because the Free Exercise Clause had not yet been held to apply to the States when Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct….

After applying Jacobson to reject the plaintiffs’ substantive due process challenge to New York’s vaccination requirement, the court then addressed (and rejected) the plaintiffs’ Free Exercise challenge by applying not Jacobson, but the familiar Lukumi framework that governs all Free Exercise claims.

Collins is right. The relevant framework is Lukumi. Not Jacobson. And that’s the standard Justice Kavanuagh followed. Roberts is forever haunted by the ghosts of Lochner, so much so, that he is willing to discard the usual standards for First Amendment cases. Holmes is not relevant here.

Second, Roberts cites Marshall v. U.S. (1974).

When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974).

I’ll admit, I had never heard of this case. Indeed, California did not cite this case in its brief. It came from Roberts’s own research. Why did he cite it? I’m not certain. Marshall did not concern any sort of emergency powers case. Rather, the facts were mundane. The syllabus offers this description: “Petitioner, who had three prior felony convictions, moved for commitment as a narcotic addict pursuant to Title II of the Narcotic Rehabilitation Act of 1966 (NARA), following a fourth felony conviction.” Yawn. Here is the relevant passage that Roberts cited:

When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices.

I don’t know why Roberts pulled out this Burger-authored decision. A statute that passes through bicameralism and presentment during the regular process is far from the Governor’s emergency order in this case. Really, the most on-point citation would be Buck v. Bell, but Holmes’s spirit doesn’t travel quite that far.

Third, Roberts cites Garcia v. San Antonio Metropolitan Transit Authority (1985):

Where those broad limits are not exceeded, they 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. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

This citation is like a constitutional Rorschach test. First, some background. In National League of Cities v. Usery (1976), the Supreme Court held that the Fair Labor Standards Act could not be applied to state governments. This significant decisions signaled the Court’s burgeoning federalism jurisprudence. Critically, Justice Harry Blackmun–a recent Nixon appointee–joined Justice Rehnquist’s majority opinion. Usery signaled that the Court would take federalism seriously.

However, nine years later, Blackmun reversed course. In Garcia, he cast the deciding vote to overrule Usery. Blackmun explained that the Usery test was “unsound in principle and unworkable in practice,” and should be abandoned. Critically, he said that the political process, and not the courts, should be responsible for maintaining the principles of federalism. Here it the passage that Roberts cites:

The essence of our federal system is that within the realm of authority left open to them under the Constitution, the States must be equally free to engage in any activity that their citizens choose for the common weal, no matter how unorthodox or unnecessary anyone else—including the judiciary—deems state involvement to be. Any rule of state immunity that looks to the “traditional,” “integral,” or “necessary” nature of governmental functions inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes. “The science of government … is the science of experiment,” Anderson v. Dunn (1821), and the States cannot serve as laboratories for social and economic experiment, see New State Ice Co. v. Liebmann (1932) (Brandeis, J., dissenting), if they must pay an added price when they meet the changing needs of their citizenry by taking up functions that an earlier day and a different society left in private hands.

(And to continue the ode to Holmes, Blackmun cited Brandeis’s dissent in New State Ice.)

Rehnquist wrote a now-famous dissent in Garcia that proved prescient:

 I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.

Roberts, the former Rehnquist clerk, must have realized the significance of citing Blackmun’s decision. Here, the citation was completely unnecessary and gratuitous. Garcia said nothing at all about “public health.” The case was about the Fair Labor Standards Act and the Tenth Amendment. The citation to Jacobson would have been enough. There are so many other decisions that discuss “unelected judges.” Roberts could have even cited his Obergefell dissent. But why Garcia? Or, Roberts could have written nothing at all.

Roberts seems really, really annoyed with his colleagues, in a very passive aggressive fashion. He accused the other conservatives with Lochnerism. He accused them of acting like “unelected” and “unaccountable” judges. And his charge is directed at the Court’s newest member, Justice Kavanaugh. Perhaps Justice Alito didn’t join the Kavanaugh dissent to stay out of Roberts’s fire. If so, Alito’s move ,may prove shrewd.

Roberts may be laying down a marker. Is this decision Chief Roberts’s Harry Blackmun moment? Is he signaling that he will now go full-bore judicial restraint? Is he breaking up with the conservatives on the Court? I  hope I am not reading too much into a few citations. But Roberts can say a lot with few words.This concurrence is an inauspicious sign for conservatives, as this term draws to a close.

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Early Saturday morning, the Supreme Court denied an application for injunctive relief in South Bay United Pentecostal Church v. Newsom. (Eugene blogged about it here). A California church challenged state guidelines that limited “attendance at places of worship to 25% of build-ing capacity or a maximum of 100 attendees.”

The Court split 5-4. Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application. Chief Justice Roberts, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan would have denied the application.

Chief Justice Roberts wrote a two-page opinion, concurring in the denial of the application. Justice Kavanaugh wrote a three-page opinion, dissenting from the denial of the application. He was joined by Justices Thomas and Gorsuch. Justice Alito, who would have granted the stay, did not join Justice Kavanuagh’s dissent.

Roberts and Kavanaugh disagreed on a basic point: what types of businesses are “comparable” to houses of worship?

Roberts said houses of worship are “comparable” to other “secular gatherings” that are subject to restrictive guidelines. But houses of worship are “dissimilar” from “dissimilar” secular businesses.

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.

Justice Kavanaugh reached the exact opposite conclusion. His opinion quoted length from the Sixth Circuit’s decision in Roberts v. Neace. (I wrote about a related Sixth Circuit decision here–and I am fairly confident that Judge Sutton wrote both opinions.)

The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “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?” Ibid. [Neace]

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” [Neace]

Robert’s concurrence may be read somewhat narrowly. The final paragraph of his decision highlights this appeal’s unique posture:

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

In a run-of-the-mill case, Plaintiffs asserting a Free Exercise violation do not have to show an “indisputably clear” claim to relief. The standard is much more forgiving. I think Roberts is hinting at the fact that this case would come out differently on a petition for a writ of certiorari. Of course, these sort of emergency measures are unlikely to be appealed in the normal process. The Governor’s closure order will probably be repealed in short order. Any possible claims for relief will be mooted. Perhaps a damages claims could keep the case alive, but I am not familiar with the specifics of the case.

I will draw three further conclusions about the Roberts concurrence in another post.

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In today’s South Bay United Pentecostal Church v. Newsom, the Court denied an application for injunction relief. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny; Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to grant.

Chief Justice Roberts wrote a concurrence, and Justice Kavanaugh (joined by Justices Thomas and Gorsuch) wrote a dissent. The heart of their disagreement had to do with whether the entities not covered by the cap were sufficiently different from churches; Chief Justice Roberts said yes:

[T]he 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.

Justice Kavanaugh said no:

The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.

Here is Chief Justice Roberts’ opinion:

The Governor of California’s Executive Order aims to limit the spread of COVID-19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency. State guidelines currently limit attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.

Applicants seek to enjoin enforcement of the Order. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” This power is used where “the legal rights at issue are indisputably clear” and, even then, “sparingly and only in the most critical and exigent circumstances.”

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.

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts (1905).

When those officials “undertake[] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Where those broad limits are not exceeded, they 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.

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

And here’s Justice Kavanaugh’s:

I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.

In response to the COVID-19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. South Bay United Pentecostal Church has applied for temporary injunctive relief from California’s 25% occupancy cap on religious worship services.

Importantly, the Church is willing to abide by the State’s rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene. But the Church objects to a 25% occupancy cap that is imposed on religious worship services but not imposed on those comparable secular businesses.

In my view, California’s discrimination against religious worship services contravenes the Constitution. As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” This Court has stated that discrimination against religion is “odious to our Constitution.”

To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” California undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens. But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” What California needs is 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.

California has not shown such a justification. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions:”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?”

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

California has ample options that would allow it to combat the spread of COVID-19 without discriminating against religion. The State could “insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities.” Or alternatively, the State could impose reasonable occupancy caps across the board. But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.

The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.

In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment. The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities. I would therefore grant the Church’s request for a temporary injunction. I respectfully dissent.

Thanks to Prof. Marty Lederman (Georgetown) for the pointer; he also adds that California offered this justification for the distinction in its brief:

In the view of state public-health officials, large public gatherings pose a heightened risk of spread because attendees are “stationary in close quarters for extended periods of time.” Moreover, at religious services, “congregants are often speaking aloud and singing, which increases the danger that infected individuals will project respiratory droplets that contain the virus,” “thereby infect[ing] others.” As James Watt, M.D., M.P.H., an epidemiologist with the California Department of Health, explained in a declaration submitted to the district court, there “have been multiple reports of sizable to large gatherings such as religious services, choir practices, funerals, and parties resulting in significant spread of COVID-19.” Defendants pointed, for example, to a worship service in Sacramento tied to 71 COVID-19 cases; a choir practice in Seattle linked to 32 cases; a Kentucky church revival tied to 28 cases; and a religious service in South Korea where over 5,000 cases were traced back to a single infected individual in attendance.

[California’s limit on religious and political gatherings to 25% of building capacity with a 100-attendee cap] is informed by the practical recognition that, “in gatherings of large numbers of people, it may be very hard to maintain physical distancing” and that “measures that depend on individual behavior … are difficult to sustain.” It is also based on evidence that the risk of infection increases rapidly with group size: in a larger group, there is not only a greater chance that one or more people will be infected, but also a larger number of people present and potentially exposed to the virus.

Plaintiffs nonetheless contend that California’s attendance cap is “arbitrary” because “there is no percentage limitation for manufacturing and warehousing facilities.” But these workplaces are not comparable to in-person religious services. Labor in manufacturing facilities, warehouses, and offices does not typically involve large numbers of people singing or reading aloud together in the same place, in close proximity to one another, for an extended duration.

And the State prohibits workplace activities that resemble in-person religious services—for example, meetings of numerous workers in an “auditorium,” “large conference room,” or “meeting hall.” While the State’s new guidance lifted restrictions on in-person worship services and political protests to accommodate core First Amendment-protected activity, the general ban on large gatherings remains in place.

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