Should religious freedom always trump public health?

It was only a matter of time until someone made a federal case out of Gov. Gavin Newsom’s ill- advised jaunt to the French Laundry last month.

Sure enough, when attorneys for a group of California churches filed an emergency writ with the U. S. Supreme Court last week protesting the governor’s restrictions on services during the pandemic, they included the nowinfamous photograph of the governor, his wife and about 10 others enjoying themselves in a private, semi- enclosed dining room.

“Despite his nine- month reign of executive edicts subjugating Californians to restrictions unknown to constitutional law,” the churches’ attorneys argued, “the Governor continues to impose draconian and unconscionable prohibitions on the daily life of all Californians that even the Governor disregards at his own whim.”

I’m not sure that a fancy, multicourse dinner has any real bearing on the case, other than to embarrass the governor. But you get your political licks in where you can, I guess.

The real issue facing the Supreme Court in this case, Harvest Rock Church Inc. vs. Newsom, is whether the governor’s public health orders have violated the 1st Amendment by placing restrictions on church services, especially when such restrictions have not been placed on similar secular activities.

As California Atty. Gen. Xavier Becerra argued in a brief that was submitted to the court on Monday evening, California does not single out places of worship; the state gives equal treatment to all enterprises where people from different households gather indoors for extended periods.

“The restrictions on indoor worship activities are the same as — or more permissive than — those imposed on comparable secular gatherings that occur indoors and pose an equivalent threat to public health,” Becerra wrote. Indoor concerts and plays, for example, are banned in the state right now.

Last week, the Supreme Court enjoined New York Gov. Andrew Cuomo’s pandemic- related restrictions on religious services, saying they very likely violated the 1st Amendment. “Even if the Constitution has taken a holiday during this pandemic,” wrote Justice Neil M. Gorsuch, “it cannot become a sabbatical.”

New Yorkers, Gorsuch wrote, “may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of ‘ essential’ businesses and perhaps more besides.”

Thanks to the 1st Amendment, religious worship — like political protest and the media — occupies an elevated place in American life. Any restrictions on rights involving speech, religion or the press must be scrutinized and justified.

But if you don’t see the difference, epidemiologically speaking, between doing laundry or waiting for a bus and spending an hour or more seated close together indoors with a large group of fellow worshipers, singing and chanting ( and exposing yourself to the respiratory droplets of others), then you are being willfully obtuse.

In California alone, as Becerra noted in his brief, a number of church services have been identified as super- spreader events: “71 infections were linked to a single indoor service in Sacramento in March, and multiple rural communities experienced COVID- 19 outbreaks tied to indoor services on Mother’s Day.”

The San Diego Union- Tribune reported that one day after public health officials announced a COVID- 19 outbreak at the Kearny Mesa chapel of Awaken Church, the church held an indoor service of more than 100 people, most of them unmasked.

The court’s 5- 4 decision to grant an injunction in the New York case, as law professor Erwin Chemerinsky pointed out on these pages last week, was in sharp contrast to rulings in similar cases considered by the court when Justice Ruth Bader Ginsburg was alive. That turnabout is the direct result of Justice Amy Coney Barrett’s rushed and unfair appointment by a president desperate to appease his conservative base as he fought in vain for a second term.

By the time the court ruled, the matter at hand was essentially moot, because Cuomo had already eased the restrictions. But our new, even more conservative court must have been chomping at the bit to put its mark on the issue. In doing so, it elevated the right to worship over public safety during a crisis. Dead people, after all, can’t go to church.

Will the court’s action last week presage how it rules on Harvest Rock Church vs. Newsom?

Harvest Rock’s attorney thinks so, although the ruling wasn’t precedent- setting.

“I am thrilled that the Supreme Court has ruled in favor of the churches and the 1st Amendment, and I think it will change the landscape going forward and impact all the cases we are involved with,” said Mathew Staver, founder of Liberty Counsel, a conservative religious- rights law firm that has seven similar cases in litigation.

California is arguing strenuously that places of worship have not been singled out for more restrictive rules. There are no limits on the number of people who can worship outdoors. Previously, indoor gatherings were restricted to 100 persons or 25% of building capacity, whichever was lower. But because coronavirus cases are spiking in most California counties, the governor has imposed an outdoor- only rule on large gatherings, including houses of worship. That’s an extreme measure for an extreme moment.

The problem here is that worshipers are using the cover of the 1st Amendment to openly f lout public health rules. Their behavior says, “I don’t care if I get infected, and I don’t care if you do, either.”

This seems especially selfish on the part of the churchgoing folks who like to think they are their brother’s keeper.