Vote counting within the South Bay choice
By Tom Goldstein
on February 9, 2021
at 1:30 p.m.
Late on Friday evening, the Supreme Court filed a restraining order at the South Bay United Pentecostal Church against Newsom. In sum and in substance, the court has: (1) excluded California from enforcing a ban on indoor worship, (2) not issued a preliminary injunction regarding the state’s enforcement of a 25% ceiling on indoor worship, and ( 3) Approved California prohibits singing and chanting during indoor church services. The court also provided that South Bay United, a church outside of San Diego, “could bring new evidence to the district court that the state does not apply percentage capacity restrictions or the prohibition of singing and changing generally”.
The decision was taken in the form of an unsigned resolution with a paragraph followed by four separate opinions. None of these opinions commanded the support of more than three judges. As court observers analyzed the opinions and tried to count the votes on each of the three substantive questions, there was some debate over how exactly the court split up. The question is not just academic: the lower courts must apply the broken decision as this case and similar lawsuits will continue to be heard in court. (On Monday night, the Supreme Court sent another case contesting California worship restrictions back to the lower courts “for further consideration in light of Friday’s South Bay decision.”)
The main confusion concerns why there was no majority to set the capacity limits. The answer lies in the fact that the Church’s motion did not challenge these limits. Only two restrictions were addressed: (1) the ban on indoor services in so-called Tier 1 countries (which have widespread COVID-19 infections and currently cover the vast majority of the state); and (2) the nationwide ban on chanting and chanting at indoor church services. In contrast, the application itself did not contest the capacity limits of 25% (which by definition only apply if indoor services are permitted, ie outside of tier 1 countries) or applied for relief in this regard.
However, the court order dealt with the capacity limits. But why? It was preventative. These took effect immediately in Tier 1 districts because the court had ordered that places of worship in these districts may offer indoor services. So it appears that the court has tried to provide guidance to the district court that there is currently no restraining order over capacity, but that the matter may still be contentious.
Here is the more detailed breakdown of the votes. Three judges – Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett – said they fully agreed to the court’s order. Three judges – Judges Stephen Breyer, Sonia Sotomayor, and Elena Kagan – would have given the Church no relief at all. Three judges – Judges Clarence Thomas, Samuel Alito and Neil Gorsuch – would have given more relief. The vote was thus 6 to 3 to enter the indoor worship ban and 6 to 3 to allow the singing ban. Roberts, Kavanaugh and Barrett were each in the majority.
The vote not to issue an injunction on capacity limits was 8 to 1: three judges would not grant relief at all, three judges explicitly agreed, and two judges (Thomas and Gorsuch) said the matter was not before them . Only Alito would have given relief.
Here are the relevant details from each opinion. Both Roberts and Barrett made brief statements that “agree[ed] in the partial grant of an application for an injunction. Barrett (along with Kavanaugh) noted that she agreed with a broad opinion of Gorsuch, except on one point: unlike Gorsuch, she (and Kavanaugh) would not prohibit the “California ban on singing and chanting during indoor worship.”
Three judges had granted an additional injunction in relation to the ban on singing. Gorsuch (along with Thomas and Alito) stated that the “case concerns the total ban on indoor worship” in Tier 1 and the ban on singing. He said he was okay with the court order, with the exception of a “dispute” over “singing.” He thought that it “appears” that the state is “playing favorites” during a pandemic because “California’s mighty entertainment industry has won an exception” to the indoor singing ban.
But – and this is crucial in order to remove the uncertainty about the capacity limits – Gorsuch stated in a footnote that the request of the church had not challenged the capacity limits: “Nothing in our order excludes future challenges for the other different occupancy limits, which for Places of worship apply, especially in levels 2 to 4. ”Accordingly, Gorsuch said nothing about the capacity limits.
Alito stated that when it came to singing, he would have given a little closer relief than Gorsuch. He would also have given close relief in relation to the capacity restrictions. Specifically, Alito would have issued an injunction “relating to all capacity restrictions on indoor services and the prohibition of chanting and chanting indoors,” but maintained that injunction for 30 days to allow the state time to “demonstrate.” realized that nothing less than these measures would be enough to meet the state’s interest in reducing the spread of COVID. It appears that Alito was merely trying to state that he would have a single coherent investigation into the singing ban and capacity limits, with the burden of proof on the state in relation to each individual proceeding.
Finally, Kagan stated (along with Breyer and Sotomayor) that she would not have allowed the request at all and allowed the state to maintain all restrictions.