Just how huge a precedent will the recent Supreme Court decision in Roman Catholic Diocese of Brooklyn turn out to be? We can take one measure from a California court late yesterday in Father Trevor Burfitt v Gavin Newsom. In a stinging rebuke to Gov. Newsom, Judge Gregory Pulskamp imposed an injunction against enforcement of California’s planned COVID-19 restrictions. Using Brooklyn as a guide, Pulskamp ripped California’s arbitrary decision to shut down houses of worship while allowing commercial businesses to remain open.
Any such limitation on an explicit and textual constitutional right requires a strict scrutiny standard, Pulskamp ruled and cited Brooklyn for support. But Pulskamp wonders whether the restrictions even pass a smell test. In fact, Newsom’s order for a blanket ban on worship services was even harsher than Andrew Cuomo’s orders that prompted the Brooklyn decision, Pulskamp notes:
However, Defendants’ efforts to distinguish the permitted secular activity from the prohibited religious activity are not persuasive. For example, Defendants contend that the congregations of shoppers in big-box stores, grocery stores, etc., are not comparable to religious services in terms of crowd size, proximity, and length of stay. To the contrary, based on the evidence presented (or lack thereof) and common knowledge, it appears that shoppers at a Costco, Walmart, Home Depot, etc. may – and frequently do – congregate in numbers, proximity, and duration that is very comparable to worshippers in houses of worship. Defendants have not convincingly established that the health risks associated with houses of worship would be any different than “essential businesses” or “critical infrastructure,” assuming the same requirements of social distancing and the wearing of masks were applied across the board. …
In addition, the restrictions at issue in this case are not “narrowly tailored” because the occupancy limits imposed on places of worship by the Purple Tier of the Blueprint for a Safer Economy and the Regional Stay at Home Order are zero – a total and complete ban of indoor religious services. These restrictions are arguably harsher than any other set of restrictions considered by the courts in all of the cases cited by the parties in this action. In Roman Catholic Diocese, the court considered New York’s religious services occupancy limits of 10 persons in “Red Zones” and 25 persons in “orange zones” to be “very severe restrictions” and “far more restrictive than any Covid-related regulations that have previously come before the Court [footnote omitted], much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.” (Roman Catholic Diocese, supra, at p. 1, 2.) What then should the courts think of California’s total ban on indoor services? “Narrowly tailored” regulations mean “the least restrictive means available” and may potentially include a variety of less draconian measures such as “social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” (Roman Catholic Diocese, supra, at p. 4 (conc. opn. of Gorsuch, J.).) Therefore, it seems highly probable that Plaintiffs will prevail in this case should the matter proceed to trial.
Pulskamp quotes Justice Brett Kavanaugh from a dissent in the earlier South Bay United case, one of the precursors to Brooklyn, in pointing out the absurdity of the disparate treatment of religious houses:
“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister? … The State cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.'”
In other words, this shows a demonstrable hostility to religious expression, which is on its face unconstitutional — and was at the time of South Bay United, for that matter. The Supreme Court chose at that time to defer to governors but finally drew a line in the sand with Brooklyn. And now that judges have seen the line drawn, they can clearly and justly deal with abusive and arbitrary examples of tyrannical rule-by-whim, such as Newsom’s order in California.
Mark Tapscott reports on the reaction from Thomas More Society counsel Chris Ferrara, who called this decision a vindication of religious liberty rights:
Thomas More Senior Counsel Chris Ferrara lauded the decision, saying, “after more than nine months of tyranny in the name of ‘containing the spread’ of a virus they have failed to contain, the gubernatorial dictators presiding over draconian lockdowns are running out of runway on their claim that churches are somehow more dangerous viral vectors than any of the litany of ‘essential businesses’ crowded with customers that they allow to operate at 100% capacity.
“The Supreme Court’s decision in Brooklyn Diocese v. Cuomo has opened the way to the liberation of churches from the absurd and bigoted superstition that they are veritable death chambers threatening the entire population.
“Not even hair salons, which by the services offered necessitate close personal contact, have been subjected to the onerous and barefaced biases heaped upon houses of worship.”
It’s important to note that this does not spell the end of the case in Burfitt. This just enjoins California from enforcing its current restrictions while the case continues. Perhaps Newsom will rethink his approach before this comes back before Pulskamp … but then again, one might have thought Newsom would have done so after Brooklyn, too. The tyrannical impulse dies hard.