Shortly before midnight Friday, when the Supreme Court struck down a California restriction on in-home gatherings as it applies to religious activities, it signaled yet again that alleged infringements on the freedom of religion will likely trump public health and safety restrictions. At least according to the current Supreme Court.
It signaled yet again that alleged infringement on the freedom of religion will likely trump public health and safety.
(I would ask for pardon using the word “trump,” but as we will see, former President Donald Trump is actually indirectly responsible for this decision, and likely others like it).
There is a reason you may not have heard about this case before: It’s part of the court’s so-called shadow docket, a procedure that was meant to be used only for emergency cases. This means that this case was never orally argued before the court and it was never on the court’s normal calendar.
There were no full briefings by each side. And there was no signed and full opinion. On issues as important as how we balance the free exercise of religion with a state’s power to implement restrictions for our health and safety, one would certainly expect that increased transparency, including a full airing of the issues, both in written and verbal form, would be preferable. Particularly when, as it did here, the court implicitly overturned prior case law by relying, in the words of Justice Elena Kagan, on “separate opinions and unreasoned orders signals.”
Despite the fact that we are still in the midst of a pandemic, and that states have broad police powers to protect our health and safety, and that the restriction at issue was set to expire in less than a week, the Supreme Court saw fit to sound the death knell for the rule.
A state’s police powers are not absolute. If, for instance, scientific evidence showed that it is virtually impossible to spread Covid-19 indoors, the government would not have any grounds to restrict indoor gatherings in the name of health and safety. But the opposite is true. We now know that because Covid-19 is most commonly spread through airborne droplets or aerosols, we are far safer from transmission outdoors, where there is better ventilation, than indoors.
There is a reason you may not have heard about this case before.
The state of California, following the evidence that the coronavirus spreads more easily indoors, banned at-home gatherings for three or more families. This restriction covered any and all activities occurring in one’s home with more than three households. The restriction covered any activities in one’s home, including Bible study groups and prayer groups, and was set to expire Thursday.
A thin 5-4 majority of the court ushered in the demise of California’s restriction, at least as it applies to religious gatherings, six days early. The majority concluded that even though the restriction applied to all types of gatherings at home, it was not in fact neutral and treated secular activities more favorably than religious activities. The majority made much of the fact that more than three households at a time could congregate for secular activities in places such as hair salons, stores and movie theaters.
You don’t need to be good at math to see how the current court arrived at its conclusion. The three justices appointed by Trump — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — comprised three of the five-person majority. They were joined by Justices Clarence Thomas and Samuel Alito.
Trump appointed more than 200 federal judges — the most since Jimmy Carter was in office — who now are jurists who have lifetime appointments and will be making decisions for decades to come. Trump’s term in the White House may have ended, but his influence on this country as a result of his appointments to the federal bench are just beginning.
Chief Justice John Roberts came down in the middle, where he may be for the remainder of his time on the court. He dissented from the decision of his conservative colleagues but failed to sign on to the stinging dissent issued by the liberal wing of the court.
Kagan, who has perhaps the sharpest pen on the current court, drove a proverbial Mack Truck through the majority’s reasoning. First, she pointed out that the restriction is in fact neutral because California limited not just religious gatherings in homes to three households, but also all gatherings in homes to three households. This case is but one example of the enormous impact Trump has and will have on the federal bench, and hence on our country. Second, she put to rest the idea that just because hair salons and retail stores are open, in-house gatherings must similarly be allowed. On this point, she concluded that “the law does not require that the state equally treat apples and watermelons.” She explained that behavior in these different settings can give rise to very different levels of Covid-19 risk, and that a trip to the hardware store need not be viewed as an equivalent risk as a religious study group in a home. This case is but one example of the enormous impact Trump has and will have on the federal bench, and hence on our country. You may also remember how the Supreme Court ruled on a number of these religious challenges to Covid-19 restrictions prior to October 2020, when the court generally sided with states and denied these cases. That was before Justice Ruth Bader Ginsburg passed away and her seat was filled by Barrett. Regardless of the many flaws in the majority’s short opinion, its reasoning is here at stay. At least five members of the court, and likely six, will be putting a heavy hand on the scale when it comes to allegations that government laws or rules violate the freedom of religion. This will have implications not just for states implementing health and safety measures, but also when the government conditions contracts on a private group’s adherence to anti-discrimination laws. The court’s conclusion in Fulton v. City of Philadelphia, Pennsylvania, which will determine whether faith-based child welfare organizations can opt not to work with LGBTQ+ families but still be part of a government-rule program, now seems more certain. In that case, which was argued in early November, one of the legal issues is whether the city violated the free exercise of religion by conditioning a religious group’s opportunity to take part in the foster care system on its adherence to laws preventing discrimination against the LGBTQ+ community. We will know the outcome of that case before the end of June. But with Trump’s current spate of lifetime appointments, we will not know the outcome of the current court’s approach to freedom of religion cases as a whole for decades to come.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
