Churches, cinemas and COVID-19 politics
While most of us were focused on the protests triggered by the police killing of George Floyd, something else extraordinary happened recently: places of worship all over California reopened for in-person services.
Although the Supreme Court confirmed state governments’ power to order churches closed to reduce COVID-19 transmission, Gov. Gavin Newsom chose to allow churches, temples and mosques to reopen, releasing a 13-page “industry guidance” for reopening places of worship on May 25.
But it begs a simple question: if places of worship have permission — and guidelines — to reopen, what about physically similar secular venues? In particular, what about movie theatres?
In asking this question one doesn’t need to get into any comparison between religious devotion and Hollywood’s passion for film. The question comes from how similar the two experiences are from a social distancing point of view.
At the Supreme Court, the decision upholding the state’s response to the pandemic was a 5-4 decision, with Chief Justice John Roberts and the four liberal justices forming the majority. Justice Brett Kavanaugh dissented, arguing that California’s restriction discriminates against places of worship and in favor of “comparable secular businesses.” Kavanaugh pointed to supermarkets, factories, pharmacies and cannabis dispensaries as “comparable” to church services.
But supermarkets, retail shops and factories are not the right comparison. Cinemas are. Film screenings and religious services both involve a large group of people gathered, at the same time, in an enclosed space for one to three hours. Not only do the people share the same room, but they enter about the same time and exit about the same time through limited doorways — in each case creating challenges for social distancing.
When Kavanaugh asked, “Why can someone safely walk down a grocery store aisle but not a pew?” he was not only being rhetorical, he was being disingenuous. In terms of airborne transmission, the problem with a religious service is not walking down a pew; it’s the amount of time people spend seated with one another in an enclosed space.
Comparing the physical similarities of film screenings and faith-based ceremonies is not meant to diminish the importance religion has for many Californians. Religious services are the center of spiritual life for many: a 2014 Pew survey found that 31% of Californians said they attend at least weekly services. The number of M. Night Shyamalanlike cinephiles is surely much smaller. And the number of places of worship in California dwarf the number of movie screens.
At the end of the day, this disparate treatment of two kinds of very similar “event spaces” — one religious, one secular — speaks to how much our leaders’ handling of the COVID-19 storm has mixed science-based stewardship with reasonable political calculations.
So, no, Justice Kavanaugh, you got the whole thing backward: if there is any “discrimination” here, it has favored freedom of religion over the freedom of speech and freedom of assembly embodied in a movie house. Justin Hughes is a law professor at Loyola Law School, Loyola Marymount University, Justin.hughes@ lls.edu. He wrote this commentary for CalMatters.