![\"SCOTUS\"](\"https:\/\/i1.wp.com\/jonathanturley.org\/wp-content\/uploads\/2016\/06\/scotus.jpg?resize=845%2C599&ssl=1\")
\nEarly on in the pandemic,\u00a0I wrote about how governors can shutdown churches under the Constitution<\/a>.\u00a0 On Friday, the Supreme Court voted 5-4 along those lines to reject an emergency appeal from a California church over the imposition of limits on the size of attendance at services.\u00a0 The church came close to prevailing. Chief Justice John Roberts joined his liberal colleagues in upholding what he said were limits that \u201cappear consistent\u201d with the First Amendment. The cost ruling is an indication of how courts are applying closer scrutiny to the treatment of churches as opposed to other institutions allowed to have greater numbers of people.<\/p>\n
Last week<\/a>, President Donald Trump has\u00a0pledged that he will \u201coverride\u201d state orders<\/a>\u00a0barring in-person religious services unless governors do so.\u00a0\u00a0As I have previously noted<\/a>, the President is claiming authority that is expressly denied to him in our system of federalism. While I have warned such deference given to the states wanes with time, any order to reopen churches in a given state will be based on the inherent authority of the courts, not the President.\u00a0 The Administration can, and has promised,\u00a0joined legal challenges to such state orders<\/a>\u00a0but it is not claiming the inherent authority of presidents to \u201coverride\u201d state decisions.\u00a0\u00a0The Justice Department has warned Newsom that his order is contravening constitutional rights<\/a>.\u00a0 However, now that the Supreme Court has ruled, any move by President Trump to \u201coverride\u201d such orders would directly contravene the authority of the Supreme Court as the final arbiter of what the Constitution means in such conflicts.<\/p>\n Roberts wrote in brief opinion that the state could restrict churches to 25% of their capacity, with no more than 100 worshipers at a time. The court also rejected an appeal from two churches in the Chicago area that objected to Gov. Jay Pritzker\u2019s limit of 10 worshipers at religious services.<\/p>\n \u201cThe precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts \u201c[t]he safety and the health of the people\u201d to the politically accountable officials of the States \u201cto guard and protect.\u201d Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials \u201cundertake[ ] to act in areas fraught with medical and scientific uncertainties,\u201d their latitude \u201cmust be especially broad.\u201d Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an \u201cunelected federal judiciary,\u201d which lacks the background, competence, and expertise to assess public health and is not accountable to the people.\u201d<\/p><\/blockquote>\n The Roberts decision is striking in fairly cursory treatment of the other options for the state given the obligation of the state to must show that the limits are \u201cjustified by a compelling governmental interest\u201d and \u201cnarrowly tailored to advance that interest.\u201d The sharp division shows, as we discussed earlier, how such deference to the states in a pandemic tends to wane with time.<\/p>\n In his dissenting opinion<\/a>, Justice Brett Kavanaugh wrote that the state had failed to satisfy the high standard for review in such limits on the free exercise of religion.<\/p>\n \u201cCalifornia has ample options that would allow it to combat the spread of COVID\u201319 without discriminating against religion. \u2026 But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship. The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.<\/p>\n In sum, California\u2019s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment. The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities. I would therefore grant the Church\u2019s request for a temporary injunction.\u201d<\/p><\/blockquote>\n Here is the opinion:\u00a0South Bay United Pentecostal Church v. Newsom<\/a><\/p>\n![\"220px-File-Official_roberts_CJ_cropped\"](\"https:\/\/i2.wp.com\/jonathanturley.org\/wp-content\/uploads\/2012\/11\/220px-file-official_roberts_cj_cropped.jpg?resize=161%2C198&ssl=1\")
In his concurrence, Roberts wrote:<\/p>\n![\"440px-Judge_Brett_Kavanaugh\"](\"https:\/\/i1.wp.com\/jonathanturley.org\/wp-content\/uploads\/2018\/09\/440px-Judge_Brett_Kavanaugh.jpg?resize=156%2C216&ssl=1\")
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