It was only a matter of time before the Supreme Court would have to issue a decision on a church’s challenge to a state’s stay-at-home orders. That day arrived on May 29th with South Bay United Pentecostal Church v. Newsom, when a fractured Supreme Court denied an emergency injunction that sought to eliminate California’s cap on the size of religious gatherings. The Court held that California did not discriminate against religion when it imposed this cap while allowing certain secular entities—including factories, offices, and restaurants—to fully reopen.

Chief Justice John Roberts, in a short opinion, explained that restrictions allowing churches to reopen at 25 percent of their capacity, with no more than 100 worshipers at a time, “appear consistent” with the First Amendment. California, according to Chief Justice Roberts, had an acceptable reason for treating churches more like concerts and movie theatres, where people “congregate in large groups” and “remain in close proximity for extended periods,” than like grocery stores, where they can more easily socially distance. 

Justice Brett Kavanaugh dissented from the court’s order. In a likewise short opinion, Justice Kavanaugh rejected Chief Justice Robert’s distinction between spaces prone to congregation and spaces that allow for social distance. He argued that because supermarkets, restaurants, hair salons, and other businesses were not subject to the same restrictions as churches, such restrictions “discriminate[ ] against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.”  

Despite Justice Kavanaugh’s protestations, Chief Justice Roberts’s measured opinion, although short on words, arrived at the only acceptable interpretation of the Free Exercise Clause under binding precedent.

In its 1990 decision, Employment Division v. Smith, the Court held that religious freedom essentially translates into a rule against governmental discrimination against religion. Laws that are facially neutral and generally applied are permissible under the First Amendment. Smith involved two individuals who were denied state unemployment compensation benefits after being fired from their jobs for ingesting peyote. The individuals challenged the denial of benefits on the ground that they were entitled to religious exemptions since they had ingested peyote for sacramental purposes at a ceremony of the Native American Church.  

Declining their constitutional challenge, the Supreme Court concluded that “the right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” The Supreme Court held that a state could, consistent with the First Amendment, criminalize peyote and deny unemployment compensation benefits to individuals whose job dismissals resulted from the use of peyote. Writing for the Court, Justice Antonin Scalia explained the rationale for this holding: were freedom of religion to mean that the government must exempt religious practitioners from laws that conflict with any and all of their religious mandates, it would “court anarchy” by enabling individuals to become “laws unto themselves.” For government to work, general laws must apply to all, including the religious, absent a specific legislative exemption. That means that general laws—including criminal laws, tax laws, and most compulsory education laws, to list just several examples—need not carve out exceptions for anyone who objects on religious grounds.

But what if a state provides some exceptions to a general law in the service of certain secular interests? Under Smith, the First Amendment does not require states to accommodate religion in the face of a general rule that applies to all. But are laws that include some carve-outs laws that apply to all

This question was at the heart of the legal debate between Chief Justice Roberts and Justice Kavanaugh. For both justices, the relevant question was the same: what should church gatherings during a pandemic be compared to? The appropriate comparison for Chief Justice Roberts was to “lectures, concerts, movie showings, spectator sports, and theatrical performances”—the secular gatherings that were not exempted—since, like religious gatherings at churches, they involved “large groups of people gather[ing] in close proximity for extended periods of time.” For Justice Kavanaugh, meanwhile, the correct comparison was to “supermarkets, restaurants, [and] hair salons,” where numerous patrons sometimes gather and remain for long periods of time. 

But the meaning of “similarly situated” is in the eye of the beholder.[1]  Church gatherings can be compared to both kinds of gatherings—to lecture halls and restaurants—as demonstrated by the equally forceful opinions of the concurrence and dissent. If the test of what constitutes religious discrimination boils down to the relative similarity between a secular activity that has received an exemption and a religious activity that has not, it is no test at all.

To put this into sharper relief and to use another case that is currently pending before the Supreme Court, suppose a state has a rule that adoption agencies cannot refuse to work with potential adopting parents who are gay, but the state expressly permits agencies to consider various factors—including religion, economic status, and race—when determining the placement of a child for adoption. If adoption agencies may take these various factors into consideration in service of the “best interests” of the child, then is it discriminatory to prohibit a Catholic agency from considering the sexual orientation of a potential adopting couple in the name of “religious belief”?

The meaning of “similarly situated” is in the eye of the beholder. If the test of what constitutes religious discrimination boils down to the relative similarity between a secular activity that has received an exemption and a religious activity that has not, it is no test at all.

Whether these interests (the “best interests” of the child or the “religious beliefs” of the agency) are similar or not is not a workable test. They are both similar and dissimilar, and there is no objective metric by which they may be determined to be more (relevantly) similar than dissimilar or vice versa. Rather, a question that has been presented to the Court and which it must answer is this: if a state provides any exceptions to a general rule, does the First Amendment require the state to also provide exceptions for all religious entities—irrespective of so-called “similarities” and “dissimilarities”?[2]

Thus, a “similarity test” cannot be what was doing the most work in Chief Justice Roberts and Justice Kavanaugh’s dueling opinions.  Rather, the real question for the Court was whether it can be said that California was discriminating against religion by having different standards for church gatherings and certain secular gatherings under the correct definition of religious discrimination. In other words, while Smith cabined free exercise by transforming it into a prohibition on religious discrimination, it left open the question of what exactly religious discrimination means. It could mean that religion must never be singled out for negative treatment. And if church gatherings are meaningfully similar to gatherings at restaurants, then church gatherings have been singled out. But if not, then not. Or it could mean that religion must always be treated as well as the most favored secular interest in society; and if there are any exceptions to California’s order, even if it is for dissimilar establishments, like restaurants, an exception must be provided for churches, too. Chief Justice Roberts seems to be saying that churches were not discriminated against because they were not singled out—that is, because various secular entities also did not receive exemptions from the stay-at-home orders. Justice Kavanaugh is saying they were discriminated against because some secular entries did receive an exemption.

But to argue that religion must always be treated as well as the most favored secular interest in society—as Justice Kavanaugh essentially did in his dissenting opinion—is just another way of demanding that religion receive special accommodation every time a religious practitioner has a religious objection to a law. This is because nearly every law has at least some “secular” exceptions. For example, one may not run a red light or exceed the speed limit, but emergency vehicles are exempt. Surely the “secular” exemption for emergency vehicles does not require that the government also exempt Orthodox Jews rushing to get home before sundown from general traffic laws on Fridays to ensure it is treating religion as well as the most favored secular interest in society. Rather than compare rushing home before the Sabbath to emergency vehicles, we ought to compare it to all the other secular interests that do not receive any exemptions from traffic laws. 

By comparing California’s lack of exemptions for churches with its lack of exemptions for numerous other secular entities, including concert halls, lecture halls, and movie theaters—that is, by demonstrating that there are ample secular activities that are not exempted—Chief Justice Roberts correctly chose the apt comparison. And he prudently avoided breaking with clear precedent in response to a petition for an emergency injunction, hardly the right vehicle for overturning Smith, a three-decades old precedent.

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Zalman Rothschild is a law clerk to the U.S. Court of Appeals for the Third Circuit, a Nonresident Fellow at the Stanford Constitutional Law Center, and Faculty at the Shalom Hartman Institute of North America.  He earned a J.D., magna cum laude, from Harvard Law School, a Ph.D. from New York University, and an M.A. from Yeshiva University. The author wishes to thank Rick Garnett and Zachary David for helpful comments.

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[1] One might say that it is obvious that churches are radically different from the secular entitles exempted under California’s orders. Sure, as compared to pharmacies, take-out restaurants, and cannabis dispensaries, churches are drastically different. One does not typically linger in a pharmacy, for example, whereas the entire point of religious congregations is to congregate for extended time. But pharmacies, take-out restaurants, and pot shops were not the only secular entitles exempt from California’s order. Office spaces, shopping malls, pet grooming shops, bookstores, florists, hair salons, and sit-down restaurants—spaces where people often do “linger”—were also exempt from the state’s occupancy cap. Further, although surprisingly not mentioned by Kavanaugh in his dissent but certainly made known to him and to Roberts from the parties’ briefs, California also exempted schools, which are even more analogous to churches. Therefore, in many of the places California exempted—be they warehouses, offices, restaurants, or schools—people tend to gather and remain for long periods of time, just as people do in churches. The similarities between these entities and churches are as “obvious” as are their dissimilarities.  

[2] For a discussion of the ramifications South Bay United may have for this case, Fulton v. City of Philadelphia, see Zalman Rothschild, Free Exercise’s Lingering Ambiguity, 11 Calif. L. Rev. Online ___ (June 2020).

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Featured Image: Credit to Roozbeh Rokni

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