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Editorial: U.S. Supreme Court sticks its nose into California’s business — and puts us in COVID danger

The Rev. Roger Gustafson is recorded celebrating Mass in an empty St. Brendan the Navigator Catholic Church in San Francisco.
The Rev. Roger Gustafson is recorded celebrating Mass in an empty St. Brendan the Navigator Catholic Church in San Francisco last March.
(Associated Press)

The U.S. Supreme Court erred late Friday when it ordered California to reverse its ban on indoor faith services for counties in the state’s purple tier, which have extremely high rates of COVID-19 infection. The conservative majority concluded — wrongly, we believe — that the state has been unfairly harsh on houses of worship and thus violated the Constitution’s protection of the free exercise of religion.

That’s hogwash, and the tortured justification laid out in Justice Neil M. Gorsuch’s opinion in a lawsuit brought by South Bay United Pentecostal Church in Chula Vista makes it clear that either the majority justices don’t understand how congregational activities pose a unique threat of contagion or just don’t care.

Nevertheless, state officials had little choice but to update guidelines to allow indoor worship in every county, no matter how many COVID-19 cases they have. At least the justices allowed the capacity limits during services and the ban on singing or chanting to stay — for now, anyway. (Another church has challenged this ban.)

Gorsuch wrote that California has “openly imposed more stringent regulations on religious institutions than on many businesses.” He’s not wrong, exactly, though his use of “openly” reveals that he views the state’s restrictions as hostile toward religion instead of a good-faith effort to craft industry-specific guidelines in lieu of blanket closures. If the rules are different for churches, grocery stores and TV studios, it’s because each operates differently and carries a unique set of infection risks. It’s an apples-to-spaghetti comparison.

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Gorsuch did get one thing exactly wrong, though. “If Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry,” he wrote. But under the state’s rules, Hollywood may not do such things in the purple tier.

There are many things that scientists have yet to pin down about the virus that causes COVID-19. But one of the things they know for sure is that bringing groups of people together indoors carries a high risk of transmission. They know that church services have been superspreader events and that there are well-documented cases of infection transmitted by singing together inside. That is why, throughout these long months, state health officials have tried to limit indoor gatherings of all types as much as is reasonably possible, no matter whether they are spiritual or secular.

Indeed, in this way houses of worship are treated like restaurants, which cannot open for even limited indoor seating until a county is out of the purple tier. And they’re in a better place than large amusement parks, which are not allowed to reopen until a county is in the least restrictive tier.

Justice Elena Kagan wrote a particularly scathing dissent on behalf of the liberal justices, castigating the majority for its “armchair epidemiology” and arguing that California’s orders made sense and ought not be meddled with by a group of non-scientists. She got this right, though it doesn’t mean that states should get a blank check to limit religious services however they like during an emergency. Sometimes scrutiny may be warranted.

Science may well determine someday that California’s cautious approach was excessive. By the same token, it may well determine the state wasn’t tough enough. But right now, all we have is incomplete knowledge and the belief that doing more is better than doing less. We just hope that pastors, imams, rabbis and other faith leaders share this core belief and will take all the necessary precautions when allowing their flocks through their doors.


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