Hate Speech, Public Order, Religious Expression
Chettiar v. Naicker
In Progress Mixed Outcome
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The United States (U.S.) Supreme Court granted an injunction in part over the California Governor’s enforcement of an executive order aimed at combatting COVID-19. The applicants, South Bay United Pentecostal Church and Harvest Rock Church, claimed that they were disproportionately impacted by restrictions that banned indoor worship services and indoor singing and chanting while secular businesses and activities were not subject to the total bans, violating the Free Exercise Clause of the First Amendment. Injunctions were declined by U.S. district courts and the Court of Appeal for the Ninth Circuit. The U.S. Supreme Court found that the total ban on indoor worship services did not reflect a sound determination by the State of restrictions narrowly tailored. Some of the Justices focused in on the discrepancy in treatment between religious institutions and other businesses, noting how COVID-19 risk factors were not always present in religious activities and absent in secular activities. By a 6-3 majority, the respondents were enjoined from enforcing the Tier 1 ban on indoor worship services against the applicants but were not enjoined from enforcing the ban on singing and chanting during indoor services. The Court also upheld capacity restrictions that would come into effect where indoor services were permitted. The dissenting opinions argued that worship services were actually treated just as favorably as secular activities with comparable COVID-19 risks and no relief was necessary.
The applicants in this case were South Bay United Pentecostal Church and Harvest Rock Church, churches based in Chula Vista and Pasadena, California respectively.
Governor Gavin Newsom of California had imposed COVID-19 restrictions on indoor religious services. In Tier 1 counties, the areas with the highest infection rate, there was a total ban on all indoor worship services. The Governor also ordered a ban on indoor singing and chanting.
The applicants were subject to these restrictions and argued that the bans violated the Free Exercise Clause of the First Amendment. The applicants separately requested an injunction pending appeal from the district courts and the U.S. Court of Appeals for the Ninth Circuit to prohibit the restrictions’ enforcement. The courts refused to block the restrictions in both cases.
Subsequently, the parties filed an emergency application to the U.S. Supreme Court to enjoin the restrictions as they pursued appellate review in the Ninth Circuit.
The U.S. Supreme Court sought to determine if the applicants established their entitlement to injunctive relief, on the basis of whether the restrictions of the disputed zones violated the First Amendment’s Free Exercise Clause.
By a 6-3 majority, the application for injunctive relief was granted in part. The respondents were enjoined from enforcing the Tier 1 ban on indoor worship services against the applicants but were not enjoined from enforcing the ban on singing and chanting during indoor services. Further, the Court preemptively addressed the capacity restrictions that would come into effect where indoor services were permitted – a 25% capacity limitation. By 8-1 majority, the respondents were not enjoined from imposing the capacity limitation on indoor worship services in Tier 1. The order did not prejudice the applicants presenting new evidence that the State was not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner. The order would terminate upon a writ of certiorari being denied, or upon the sending down of the judgment of the Court if the writ of certiorari was granted.
Chief Justice Roberts and Justices Barrett and Kavanaugh concurred with the order in full. Justices Gorsuch, Thomas, and Alito would have granted the application in full, offering more relief. Justices Kagan, Breyer, and Sotomayor dissented and would not have granted any relief.
Chief Justice Roberts filed a concurring opinion
The Chief Justice outlined that federal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health” [p. 2]. Specifically, there was no basis to override the health decision to prohibit singing indoors as that was deemed to increase the risk of COVID-19 transmission. However, deference had its limits. The State’s current capacity of zero attendees did not reflect a determination based in expertise or discretion. It reflected “insufficient appreciation or consideration of the interests at stake” [p. 2]. Thus, while the Constitution entrusts safety and health to politically accountable officials, it also entrusted the protection of the people’s rights to the courts because of their “shielded” [p. 2] life tenure.
Justice Barrett, joined by Justice Kavanaugh, filed a concurring opinion
Justice Barrett concurred in the partial grant of application for injunctive relief. She noted that it remained unclear whether the singing ban applied across the board or only favored certain sectors. If the former, then it would constitute a neutral law but not if the latter. The decisions provided minimal information on the issue. Nonetheless, the applicants were given the avenue to prove if the singing ban was not neutral and advance their claim.
Justice Gorsuch, joined by Justice Thomas and Justice Alito, filed a statement
Justice Gorsuch discussed that while there were difficult questions regarding First Amendment free exercise challenges, there were none in this case. He highlighted that California had imposed more severe regulations on religious institutions than on many businesses. Particularly, religious institutions were singled out and assigned their own rules which forbid any indoor worship. In contrast, retailers were allowed to operate at 25% occupancy while other businesses operated at 50% occupancy or more. California was apparently the only state to go so far as to ban all indoor religious services.
Regulations based on differential treatment violated the First Amendment, unless it could be shown that they were the least restrictive means of achieving a compelling government interest. In applying strict scrutiny, Justice Gorsuch noted that judges were “not scientists” but available to “test the government’s assertions” and “hold governments to the Constitution” [p. 2] in times of crisis. In the case of California, the State generally offered four justifications for its regulations: religious exercises involved (1) large groups of people from different households (2) in close physical proximity (3) for extended periods (4) with singing.
Justice Gorsuch did not dispute that these factors increased the risk of transmitting COVID-19 or that there was a compelling interest to reduce such risk. However, it was erroneous to argue that the factors were always present in religious activities or always absent from the secular activities allowed. Similarly, the State did not explain how a total ban was narrowly tailored or why the opportunity to adopt safety protocols was not afforded to religious institutions. Less restrictive alternatives – safety measures that were deemed routine across the U.S. – had been deemed insufficient by the State while deemed sufficient for many secular activities and businesses. The State thus “single[d] out religion for worse treatment than many secular activities” [p. 4]. The Court had made clear in Roman Catholic Diocese of Brooklyn v. Cuomo New York 592 U.S. (2020) that rules like California’s failed strict scrutiny and violated the Constitution.
Justice Gorsuch disagreed with the Court’s order regarding the singing factor. He observed that a ban on singing might have been understandable given the State’s concern over its contribution to transmission and its ban across other types of indoor gatherings. Still, upon closer examination, it was noted that music, film, and television studios were permitted to sing indoors. The State again appeared to favor “protect[ing] lucrative industries while denying similar largesse to its faithful” [p. 5].
Overall, the State had to do more to “tailor the requirements of public health to the rights of the people” [p. 6]. The temporary nature of the prohibitions did not placate concerns, particularly since the State maintained a dubious timeline with continuously changing goalposts. “It [was] too late for the State to defend extreme measures with claims of temporary exigency” [p. 6].
Justice Kagan, joined by Justice Breyer and Justice Sotomayor, filed a dissenting opinion
Justice Kagan argued that the majority’s order defied the Court’s caselaw, exceeded its judicial role, and risked exacerbating the COVID-19 pandemic.
She outlined the demand for “neutrality” in First Amendment actions impacting religion. Referencing Church of Lukumi Babalu Aye, Inc. v. Hialeah 508 U.S. 520 (1993), Justice Kagan noted that a government could not limit religious conduct to protect the government’s interests unless it also limited nonreligious conduct that threatened those interests in a similar or greater degree. As a result, the Constitution did not require different things to be treated in law as though they were the same. States simply had to treat similar cases alike and could treat dissimilar cases accordingly. Failing this neutrality test, the government policy had to be justified by a compelling government interest and be narrowly tailored to forward that interest.
Based on this criteria, California’s regulations satisfied the neutrality rule by treating worship just as favorably as secular activities with comparable COVID-19 risk – specifically activities involving large groups of people being in close proximity for extended time periods. Restricted activities included attending a worship service, political meeting, lecture, cinema, concert, to name a few. Moreover, the restrictions did not amount to a ban on worship because, given “California’s mild climate” [p. 2], services and other gatherings had taken place outdoors.
Citing the expertise of various medical professionals, Justice Kagan noted that the regulations were aimed at indoor gatherings because they carried an increased danger of COVID-19 transmission. The medical expertise also shed light on why other indoor sites, e.g., retail stores, were treated less severely: people were in less close proximity for shorter periods of time while shopping. Likewise, employers and employees in workplaces – like the entertainment industry – had to comply with workplace-specific protocols that were subject to enforcement by State labor authorities. The requirements of these protocols, such as testing employees multiple times a week, “could not feasibly be applied to the congregation of a house of worship” [p. 4].
Thus, the State had regulated religious and nonreligious conduct that carried a comparable COVID-19 risk. The only secular conduct favored better was the kind that experts deemed did not carry a comparable COVID-19 risk. Based on this design, there was nothing that violated the First Amendment. By deciding to treat religious activities like activities that pose a lesser COVID-19 risk, the Court was the one singling out religious activity from other equally risky types of gatherings.
Overall, the Court’s “armchair epidemiology” [p. 6] weakened efforts to tackle the public health emergency and contravened the reasons why the Constitution entrusted people’s safety and health to elected state officials, not federal courts. By displacing expert-based judgments and policy with “judicial edict” [p.6], the Court was “inject[ing] uncertainty into an area where uncertainty ha[d] human costs” [p. 6].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case is a mixed outcome. The Court takes account of the Free Exercise Clause of the First Amendment in circumstances of a pandemic or emergency, diverging from previous decisions in the COVID-19 ambit along with only one other case. Specifically, total bans placed on indoor worship services was given strict scrutiny based on their disproportionate impact and were deemed not narrowly tailored enough to still accommodate freedoms under the Free Exercise Clause. However, the Court recognized that the same argument was not fulfilled regarding the total ban on indoor singing and chanting due to a lack of information of whether it constituted a neutral law. Likewise, the Court upheld the 25% capacity limitation on indoor worship services.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Referenced by the Court as a clear precedent that COVID-19 rules related to freedom of religion, such as California’s, failed strict scrutiny and violated the Constitution.
Referencing by the dissent to note that a government could not limit religious conduct to protect the government’s interests unless it also limited nonreligious conduct that threatened those interests in a similar or greater degree.
Case significance refers to how influential the case is and how its significance changes over time.
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