In its first look at how the Constitution’s Free Exercise Clause applies to temporary restrictions on public gatherings during the novel coronavirus pandemic, a divided Supreme Court has denied a request from a California church to enjoin enforcement of state restrictions on religious services.

In South Bay United Pentecostal Church v. Newsom, church leaders are challenging Governor Gavin Newsom’s COVID-19 policy limiting attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. The First Amendment bars the government from “prohibiting the free exercise [of religion].” The question is whether Newsom’s order disadvantages churches compared to other secular activities. 

In the 5-4 ruling, handed down just before midnight on Friday, Chief Justice John G. Roberts, Jr. joined Justices Ruth Bader Ginsburg, Stephen G. Breyer, Elena Kagan, and Sonia Sotomayor in denying the injunction.

The Chief Justice authored a short opinion, in which he wrote that the church is unlikely to prove religious discrimination because the California policy treats houses of worship the same as other extended gatherings of large groups of people, such as concerts, plays, lectures, movies, and spectator sports. 

In a brief dissenting opinion, joined by Justices Clarence Thomas and Neil M. Gorsuch, Justice Brett M. Kavanaugh wrote that he would grant the temporary injunction because the right to worship is a fundamental right and “California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.” The occupancy cap does not apply to shopping malls, restaurants, offices, grocery stores and other secular businesses.

The case now returns to the District Court for a decision on the merits.

So, who’s right? Are houses of worship similar to secular businesses? Or are church services more properly classified as gatherings akin to sporting events?