February 11, 2021
In September 2020, a parishioner of the Church of the Epiphany in San Francisco wrote an op-ed in the San Francisco Chronicle encouraging Mayor London Breed to lift restrictions on Mass: “It’s not a problem for me to be socially distanced. I gladly wear gloves and mask. Mayor Breed, please understand that this is taking away the most important thing in my life that keeps me going as a woman, as a Black woman, and as a Catholic.” She also asked, “Why am I allowed to shop for shoes while I am not allowed to go to Mass?”
At the time, the city of San Francisco allowed only one person to worship in a church at a time and religious gatherings outside were limited to 12 participants. This restriction was so severe the U.S. attorney in the Northern District of California and the assistant attorney general in the Civil Rights Division at the Department of Justice sent the mayor a letter arguing that
there is no scientific or legal justification for permitting a 20,000 square foot synagogue to admit only one worshipper while allowing a tattoo parlor to accommodate as many patrons as it can fit so long as they are six feet apart. This is not the kind of reasonable, temporary, and narrowly tailored regulation to protect public health and safety that can justify infringements on fundamental rights such as religious freedom.
The letter concluded: “The Department of Justice is reviewing its options and may take further action, as and if appropriate, to protect the religious liberty rights of the people of San Francisco.”
In August 2020, San Francisco archbishop Salvatore Cordileone had launched a “Free the Mass” movement to convince Breed to loosen restrictions on church attendance. He noted that while sermons can be televised, sacraments can’t be livestreamed.
In October 2020, the city relaxed restrictions on indoor worship but only to the 100 people allowed by state guidelines regardless of the size of the facility (for a reference point, the Cathedral of St. Mary of the Assumption can accommodate nearly 3,000 worshippers)
Other churches bridled at the state’s restrictions as well.
Shortly after the initial restrictions were issued, based on a distinction between essential industries (including Hollywood) and other activities, South Bay Pentecostal Church in the San Diego area challenged the prohibition on indoor worship services.
They were initially unsuccessful, perhaps not surprisingly since the pandemic was still new and transmission risks and effective protections were still becoming well known. The U.S. Supreme Court initially declined to intervene in the case but allowed it to follow its normal course. In January 2021, the U.S. Court of Appeals for the Ninth Circuit ruled against the church, so the church asked the U.S. Supreme Court to issue an injunction that would allow indoor worship services to resume, lift a cap of 25% capacity for indoor worship, and end a restriction on singing and chanting in services.
The first of these requests was granted. A 6-3 majority determined the state’s prohibition on indoor worship could not be enforced while the South Bay Pentecostal Church’s case was pending at the Supreme Court.
Three of the justices, Neil Gorsuch, Clarence Thomas and Samuel Alito, described in some detail why they supported this decision: “California has openly imposed more stringent regulations on religious institutions than on many businesses.” These justices noted the state’s interest in reducing the risk of infection was “compelling” but faulted it for failing to “explain why it cannot address its legitimate concerns with rules short of a total ban” and “to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interests.” The opinion concludes:
As this crisis enters its second year— and hovers over a second Lent, a second Passover, and a second Ramadan—it is too late for the State to defend extreme measures with claims of temporary exigency, if it ever could. Drafting narrowly tailored regulations can be difficult. But 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.
Varying majorities of the justices allowed the state to continue to enforce the percentage capacity limit (5-4) and the singing restriction (6-3) to continue. On the latter point Justice Gorsuch felt the singing restriction was unfair because “California’s powerful entertainment industry has won an exemption.”
In agreeing with the majority’s decision, Chief Justice John Roberts made an important observation that “the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.”
Roberts’s observation points the way forward. Appreciation and consideration of the experiences of people of faith would provide an excellent guide for policymakers in balancing the legitimate need to protect public health with the legitimate interest of worshippers to experience the most important thing in their lives.
Stories like the ones in California speak to a need for reform of government powers in an emergency – adding new protections for basic rights like religious exercise. Americans’ lives and the law must be prioritized equally with political pressure, if American freedom is to be truly protected from political impulses in a crisis that often trample on basic rights. If we heed the lessons coming out of the Golden State, we can avoid the cycle of solving one crisis by creating another.
The basic aim of the Equality Act would be to add two new categories – sexual orientation and gender identity – to the protections of these earlier laws. Isn’t this already the law, though? The answer is … sort of.
Free discussion is key to a functioning republic. And free discussion is often enabled and disseminated through media, so long as freedom of the press is alive and well.
We believe this is an ideal approach to implementing these important measures as it would do so without unnecessarily dictating specifics to the Board of Higher Education or the state’s institutions of higher education.