A California church and its bishop have asked the US Supreme Court to step in after the 9th Circuit Court of Appeals struck down their emergency application to reopen amid the coronavirus pandemic, in defiance of executive orders issued by Gov. Gavin Newsom.
Lawyers for the South Bay United Pentecostal Church and Biship Arthur Hodges filed with the USSC after the 9th Circuit panel split 2-1, with Judges Barry Silverman and Jacqueline Nguyen - appointed by Clinton and Obama respectively - wrote in their Friday order "We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure," adding "In the words of Justice Robert Jackson, if a ‘court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’"
Apparently a fatality rate below 0.3% counts as 'often fatal,' and it would be a 'suicide pact' to allow people to worship freely while accepting the well-established risks of contracting COVID-19.
The panel's third judge, Trump appointee Daniel Collins, weighed in with an 18-page dissent arguing that Gov. Newsom's orders intrude on religious freedom protected by the First Amendment, according to Politico.
"I do not doubt the importance of the public health objectives that the State puts forth, but the State can accomplish those objectives without resorting to its current inflexible and over-broad ban on religious services," wrote Collins, who noted that the Governor's orders allow many workplaces to open, while religious gatherings remain banned even if they can meet social distancing requirements imposed on other permitted activities.
"By explicitly and categorically assigning all in-person ‘religious services’ to a future Phase 3 — without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services8 — the State’s Reopening Plan undeniably ‘discriminate[s] on its face’ against ‘religious conduct," Collins continued.
The legal dispute may turn on how much weight the justices choose to give to a 115-year-old Supreme Court precedent, Jacobson v. Massachusetts, which upheld a mandatory vaccination scheme for smallpox.
Lawyers for Newsom have argued that the decision gives states broad powers during a public health emergency and effectively supersedes typical protections for First Amendment activity, including religious practice.
While the 1905 high court ruling remains on the books with no case since where the justices have grappled with similar issues, in his dissent from the Friday 9th Circuit order, Collins sounded skeptical about the sweep of the century-old case.
“Even the most ardent proponent of a broad reading of Jacobson must pause at the astonishing breadth of this assertion of government power over the citizenry, which in terms of its scope, intrusiveness, and duration is without parallel in our constitutional tradition,” he said. -Politico
In other parts of the country, challenges to pandemic lockdowns have been met with mixed results in federal courts. For example, New Orleans' Fifth Circuit and the Cincinnati Sixth Circuit have granted emergency relief to churches in defiance of state orders, while Chicago's 7th Circuit joined the San Francisco-based 9tth circuit in declining to intervene.
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