WASHINGTON — Religious organizations eager to reopen faster and with fewer pandemic-related restrictions are calling on courts to step in.
The Supreme Court is considering two emergency petitions, from California and Illinois, even though governors of those states have removed some restrictions and agreed to demands that in-person worship services be allowed on Sunday, the Christian holy day of Pentecost.
The larger issue is how the responsibility of governments to control the spread of COVID-19 can be applied to churches, synagogues and mosques, and the constitutionally protected right to worship.
Last week, President Donald Trump called on governors across the country to allow for the immediate reopening of places of worship, characterizing them as “essential services.”
Although all states are moving to ease restrictions, the Becket Fund for Religious Liberty says 21 still impose some restrictions. It says that houses of worship are treated unequally in eight states.
But that is a moving target, as the litigation at the Supreme Court shows. Since South Bay Pentecostal Church near San Diego and Elim Romanian Pentecostal Church and Logos Baptist Ministries near Chicago filed their petitions, the governors of California and Illinois have eased restrictions.
Illinois Gov. Jay Pritzker, a Democrat, has removed the state’s ban on gatherings of more than 10 people, and California Gov. Gavin Newsom, a Democrat, said churches may hold services so long as they do not exceed 25 percent of the facility’s capacity or 100 people, whichever is smaller.
Lawyers for South Bay Pentecostal said that did not resolve the issue.
“Only one industry has a 25% capacity or 100-person cap — houses of worship,” said the church’s legal brief. “If California’s interest in limiting gatherings is not important enough to be enforced against other industries, it is not important enough to be enforced against churches.”
The lawyers had earlier told the Supreme Court: “The COVID-19 pandemic is a national tragedy, but it would be equally tragic if the federal judiciary allowed the ‘fog-of-war’ to act as an excuse for violating fundamental constitutional rights.”
California responded: “Issues of coronavirus precautions and the Free Exercise Clause may eventually require decision from this court; this case does not.”
South Bay’s complaint was that in California’s reopening plan, places such as warehouses and restaurants were allowed to reopen, while houses of worship were placed in a different category, alongside such venues as movie theaters and nail salons.
The church warned that it and other places of worship had been cooperative, but that was about to end.
“Thousands of churches across the country and in California plan to reopen by May 31, 2020 — the Christian holy day of Pentecost — in defiance of any state executive orders, leading to widespread civil unrest,” South Bay’s petition states.
A panel of the U.S. Court of Appeals for the 9th Circuit, by a 2-to-1 vote, denied the church’s petition.
“We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure,” the court said. “In the words of Justice Robert Jackson, if a ‘court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’ “
Judge Daniel Collins dissented, saying California’s plan was not neutral.
Since the court’s decision, though, Newsom released the new guidance, allowing South Bay to open Sunday.
The state contends there are good reasons, though, for extending restrictions. Its expert testified 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.”
Included: “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.”
Still, California told the Supreme Court, it was showing the deference to religious freedom the Constitution requires.
“While in-person religious services are now permitted, many other activities that are most comparable in terms of COVID-transmission risk factors — concerts, lectures, theatrical performances, or choir practices, in which groups of people gather together for extended periods — continue to be barred,” the state’s lawyers wrote.