Is California's limit on religious gatherings now unconstitutional?

Last Friday the Supreme Court rejected an application from the South Bay United Pentecostal Church to enjoin enforcement of California Governor Gavin Newsom’s COVID order limiting attendance at religious services. Under the order (and the related reopening rules) in-person religious services are limited to the lower of 25% of building capacity or 100 people. The church argued that the Constitution bars California from continuing to restrict churches when it has allowed various businesses to open up. We don’t know the reasoning of the five Justices in the majority because the Court’s per curiam contains no discussion. But in his concurring opinion, Chief Justice Roberts (joined by no other member of the Court) accepted California’s representations that it was treating religious services exactly the same as other comparable entities—such as concert halls and movie theaters—where individuals gather in close proximity for an extended period such that there are special risks of virus spread—risks that are not present in banks or grocery stores in which people do not linger. Roberts thus concluded that the church was not likely to prevail on its claim that California was disfavoring religion in violation of the Free Exercise Clause of the First Amendment.


The protests taking place in California in response to the death of George Floyd now cast doubt on that conclusion.


Throughout California hundreds, sometimes thousands, of individuals have been gathering together to bring attention to police misconduct. The images out of California show protesters in close proximity, sometimes in motion, sometimes in one place (standing, sitting, kneeling, or lying down). Many protesters have no masks at all. Many who do have masks have them in their hands or dangling below their chins or are just not wearing them properly. California has not sought to disperse these crowds (except when violence has occurred). Indeed, Governor Newsom has given the peaceful protests his blessing. On Monday, Newsom held a press conference—in a church, wearing no mask—to convey his support for the protesters. Asked whether he was concerned about the assembled crowds spreading the virus, he responded that he hoped everyone would get tested. There have also been regular images of California mayors and other state officials participating in the protests or meeting with protesters, often also without masks.

It is hard to see how California can still claim it is treating like activities alike and that its rules reflect only health risks. If thousands of Californians, many without masks, may gather shoulder to shoulder outside Eric Garcetti’s home as they did yesterday, what reason is there to prevent 101 worshipers (who promise to take heightened precautions) coming together on Sunday?

The answer can’t be that the First Amendment protects protesting and so California has no choice. The First Amendment protects religious exercise also. And it can’t be that the protests are different because they are outdoors, given the proximity of protesting individuals (Newsom’s order also applies to all in-person religious services). In any event, even if there is some remaining reason for restricting church services, surely now the state cannot invoke COVID concerns to ban or limit any other protest or march.

In the meantime, the South Bay United Pentecostal Church should return to court.