Church challenges COVID-19 stay-at-home order (Updated)

Update: Justice Elena Kagan has called for a response in the case; it is due on Thursday, May 28, by 8 p.m.

On Wednesday, two Chicago-area churches asked the justices to allow them to hold services on Pentecost as well. The Elim Romanian Pentecostal Church and Logos Baptist Ministries, which are both Romanian-American Christian churches, argue that the stay-at-home orders and reopening plan for Illinois violate the Constitution by imposing a 10-person limit on worship services that does not apply to other services deemed “essential,” such as retail stores, liquor stores, restaurants and office buildings.

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A southern California church has asked the Supreme Court to block the enforcement of stay-at-home orders issued by California and San Diego County, arguing that the orders are unconstitutional because they discriminate against places of worship.

In its 33-page filing, which was submitted to the Supreme Court over the weekend but wasn’t docketed until today, the South Bay United Pentecostal Church acknowledges that the “COVID-19 pandemic is a national tragedy” but argues that it “would be equally tragic if the federal judiciary allowed the ‘fog-of-war’ to act as an excuse for violating federal constitutional rights.” Those rights are being violated, the church contends, because the reopening plan outlined by California Governor Gavin Newsom and San Diego County allowed retail stores, offices, restaurants and schools to open on May 20, while keeping the church and other houses of worship closed. Moreover, the church adds, Newsom justified the later opening for churches by explaining that the reopening plan gave priority to services that the state considers more important.

The church went to federal district court, seeking an order that would allow it to hold services by the weekend of May 16, but both the district court and the U.S. Court of Appeals for the 9th Circuit turned the church down.

In its filing in the Supreme Court, the church seeks an order that would allow it to hold services on Sunday, May 31 – Pentecost Sunday, an important Christian holy day celebrated seven weeks after Easter. The church also warns the justices that their intervention is essential because “thousands of churches across the country and in California plan to reopen” by that day “in defiance of any state executive orders,” which would lead to “widespread civil unrest.” The movement to reopen in California, the church explains, arose from the churches’ “intuited understanding” that restrictions on worship services “were unconstitutional,” but gained momentum with a May 19 letter from the U.S. Department of Justice to Newsom indicating that the reopening plan violates the religious rights of Californians, along with President Donald Trump’s statement on May 22 that houses of worship are “essential places” that should be reopened immediately.

In a supplemental brief submitted today, the church notes that on Monday Newsom “issued safety guidelines concerning how and when places of worship may reopen in California.” But those guidelines do not moot the church’s challenge, it explains, because (among other things) the new guidelines do not treat churches like the retail stores and offices that are currently allowed to open, but instead create “an entirely new regime to regulate them alone.”

The church’s request goes first to Justice Elena Kagan, who handles emergency applications from the 9th Circuit. Kagan can rule on the request herself or, as is more common, refer it to the full court.

This post was first published at Howe on the Court.