How significant is yesterday’s Supreme Court’s decision in South Bay Pentecostal Church v. Newsom?

How significant is yesterday’s Supreme Court’s decision in South Bay Pentecostal Church v. Newsom?

Short answer: not very.

Longer and more nuanced answer: the decision sets no precedent, but it does reaffirm long-standing precedent back to our old friend (or enemy) Jacobson, that judges are reluctant to second-guess public health decisions made during public health crises by state and local officials, because it is their job to make such decisions and they are accountable to the public via elections.

What did the Supreme Court do?

Yesterday, May 29th, the Supreme Court denied a California churches request for a preliminary injunction against the enforcement of Gov. Newsom’s Executive Order which limited church services to 25% of the facilities capacity.

The fundamental issue in these types of case is whether the church is treated differently from other kinds of venues or activities. Churches cannot be singled out for worse treatment than other similar venues. If they are, the rule or executive order doing so should be struck down, and there already has been at least one such ruling. However, if they are treated like other similar places, the First Amendment gives them no special protection, at least in the context of whether they should be allowed to be open in the face of an Executive Order based on public health.

The factual rub in this case is that the executive order treats some similar secular gatherings the same or worse (meaning more restrictions) than churches, (like lectures and movies) and treats other social gatherings better (errands like grocery stores and banks) because the gathering time would usually be shorter.

The opinion denying the relief focused on this factual rub and concluded that the Constitution, as explained by Jacobson, gives the politically accountable state officials the power to make these decisions, not the unelected federal judiciary. This is especially the case “in areas fraught with medical and scientific uncertainties.” (Justice Roberts joined or concurred with the four liberal justices to make the 5-4 vote denying relief).

The dissent argued (somewhat mechanically IMO) that religion was used as a basis of discrimination which requires the application of the most stringent standard of review (compelling government interest narrowly tailored to advance that interest). I don’t find the dissent’s reasoning persuasive because the categories of restrictions seemed obviously based on non-religious criteria, like sitting versus walking and or standing in line, errand versus activity.

As briefly indicated above, the real lesson of this case is that the Supreme Court (and all courts) now as in the past, gives deference and great latitude to elected officials to make public health decisions during times of public crises. Those decisions “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.” Seems clear to me that that judges would rather not be in the position to second-guess what would appear to the average person a reasonable restriction, and would only intervene in an extreme cases.

Here is the decision, so you can evaluate it for yourself.

https://www.supremecourt.gov/opinions/19pdf/19a1044_pok0.pdf
Rick Jaffe, Esq.

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