On March 4, 2020, California Governor Gavin Newsom proclaimed a state of emergency as a result of the threat posed by COVID-19. Two weeks later, on March 19, 2020, Newsom issued Executive Order N-33-20, which required “all individuals living in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors.” Executive Order N-33-20 gave some Californians the right to leave their residence, including clergy who were holding services “through streaming or other technologies that support physical distancing and state public health guidelines.”

Seven weeks later the pandemic had, in Newsom’s words, “stabilized.” As a result, on May 7, 2020, the governor published his four-stage “California Reopening Plan,” with each stage increasing those persons permitted to leave their residence.

At Stage 1, only “critical infrastructure” was exempted. At Stage 2, “lower risk workplaces” — such as curbside retail and additional factories making previously non-essential “things like toys, clothing … and furniture” — would be permitted to reopen.

Stage 2 entities also included ones that would reopen at a later date within that stage, such as schools, childcare, dine-in restaurants, outdoor museums, “destination retail, including shopping malls and swap meets,” and office-based businesses where telework is not possible.

At Stage 3, “higher risk workplaces,” like churches, could reopen, along with bars, movie theaters, hair salons, and hospitality services. According to California’s Public Health Officer, Stage 3 is for “things like getting your hair cut, getting your nails done, doing anything that has very close inherent relationships with other people, where the proximity is very close.”

The governor’s 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. At Stage 4, concerts, conventions and spectator sports could reopen.

Newsom predicted that while Phase 2 would begin in “weeks, not months,” Phase 3 would begin in “months, not weeks.”

On May 8, a church sued Newsom and several other state and local officers (collectively, “the State”) in federal court, claiming that the Reopening Plan’s decision to place churches within Stage 3 instead of Stage 2 violated the Free Exercise of Religion Clause of the First Amendment. The church asked the court to grant an injunction requiring the State to once again allow churches to conduct in-person services.

The court refused, and a federal appeals court concurred with this disposition. The church appealed to the United States Supreme Court.

The case is titled South Bay United Pentecostal Church et al. v. Newsom.

The Supreme Court’s Opinion

A deeply divided Court (5-4) rejected the church’s request for an injunction, with Chief Justice John Roberts siding with the Court’s four liberal justices to form a majority. Only Chief Justice Roberts wrote an opinion which was not joined by any other Justice, meaning that the opinion’s rationale has no binding effect. So, while we know the result of the Court’s decision, we do not know the Court’s rationale with certainty.

The Court concluded:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise [of religion] 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, 197 U.S. 11, 38 (1905). 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). 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.

The Dissenting Opinion

Justice Kavanaugh, writing for the Court’s four dissenting Justices, began his opinion by noting:

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. [The 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.

It is important for church leaders to understand that reckless inattention to risks can lead to punitive damages.

Justice Kavanaugh noted that 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.”

Justice Kavanaugh concluded:

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.” 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. … In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.

What This Means

What is the practical relevance of this case to churches? Consider the following points:

First, the Court’s decision means that churches may not be able to look to the courts for assistance when confronted by a state or local law restricting their ability to conduct worship services.

Second, churches can challenge restrictions on attendance that are stricter than those that apply to comparable secular organizations. Comparable organizations would include those that have similar numbers in attendance for similar periods of duration each week, with similar physical interactions. But churches can be subjected to more stringent limitations on attendance if the totality of their interactions with the public are greater than those of other organizations. In this regard, the Court noted: “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.”

Third, the Court stressed that “[our] Constitution principally entrusts the 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). When those officials “undertake to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad,” and “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.”

Fourth, the Court mentioned the Jacobson case in support of its decision. In Jacobson (1905), the United States Supreme Court rejected a citizen’s claim that his liberty was invaded “when the State subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination, and that a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” The Court held that “in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand” and that “real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” This case suggests, though not conclusively, that safety and health regulations, such as compulsory vaccinations, supersede religious liberty.

Fifth, church leaders who continue to hold worship services in contravention of state or local restrictions, must understand that in doing so they are exposing their congregation to possible risks and liability should one or more persons become infected with the COVID-19 virus. These risks include both personal liability and punitive damages.

Personal liability of church board members is a possibility if their decision to ignore government mandates and recommendations is deemed to constitute gross negligence. Most states have enacted laws limiting the liability of church officers and directors. The most common type of statute immunizes uncompensated directors and officers from legal liability for their ordinary negligence committed within the scope of their official duties. These statutes generally provide no protection for “willful and wanton” conduct or “gross negligence”— the same standard typically used as a basis for punitive damages.

Punitive damages are monetary damages that a jury can award when a defendant’s conduct is grossly negligent or reckless. This does not necessarily mean intentional misconduct. Punitive damages often are associated with reckless conduct or conduct creating a high risk of harm. The United States Supreme Court has noted that the goal of punitive damages is “deterrence and retribution,” that is, “to further a state’s legitimate interests in punishing unlawful conduct and deterring its repetition.” State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408 (2003).

It is important for church leaders to understand that reckless inattention to risks can lead to punitive damages, and that such damages ordinarily are not covered by a church’s liability insurance policy. This means that a jury award of punitive damages represents a potentially uninsured risk. As a result, church leaders should understand the basis for punitive damages, and avoid behavior which might be viewed as grossly negligent.