South Bay United Pentecostal Church v. Newsom
Whether California's COVID-19 restrictions that imposed a total ban on indoor worship services and percentage capacity limitations violated the Free Exercise Clause of the First Amendment when comparable secular activities were treated more favorably.
The Decision
6-3 decision · Opinion by Per Curiam (unsigned opinion of the Court) · 2021
Majority Opinion— Per Curiam (unsigned opinion of the Court)concurring ↓dissent ↓
The Supreme Court, in a per curiam (unsigned) opinion, granted the church's application for injunctive relief in part. By a 6–3 vote, the Court enjoined California from enforcing its total ban on indoor worship services and its percentage-based capacity limitations against the church and similar religious gatherings. However, the Court declined to enjoin California's separate ban on singing and chanting during indoor services, leaving that restriction in place while the case continued in lower courts.
The core reasoning, drawn from the per curiam order and the accompanying opinions of individual justices, rested on the principle that government restrictions burdening religious exercise must satisfy heightened constitutional scrutiny when comparable secular activities are treated more favorably. The Court concluded that California's framework did exactly that: it permitted a wide array of secular indoor activities — including retail shopping, personal grooming services, and entertainment productions — to operate at higher capacities or without the same rigid caps imposed on houses of worship. Because the restrictions were not neutral toward religion, they could not survive under the deferential rational-basis standard and instead had to be justified as narrowly tailored to a compelling state interest.
The majority found that California had not carried this burden. While the state's interest in controlling the spread of COVID-19 was undeniably compelling, its means were not narrowly tailored. A complete ban on indoor worship, even with safety precautions in place, went further than necessary when secular venues posing similar risks were allowed to operate. The Court emphasized that the Constitution does not permit the government to relegate the exercise of First Amendment rights to a lesser status than secular commercial activities, even during a genuine public health emergency.
The six justices in the majority were Chief Justice Roberts and Justices Thomas, Gorsuch, Alito, Kavanaugh, and Barrett. The three dissenters were Justices Kagan, Breyer, and Sotomayor. Because the opinion was per curiam, there was no single named author of the majority holding, though the individual statements filed alongside the order provided significant reasoning.
Concurring Opinions
Justice Gorsuch, joined by Justices Thomas and Alito, filed a statement arguing that the injunction should have been broader, including relief against the singing and chanting ban, and sharply criticizing California for permitting Hollywood studios to film indoors while banning churches from worshipping indoors. Justice Barrett, joined by Justice Kavanaugh, filed a statement explaining that while the total worship ban and capacity limits were clearly unconstitutional, she was less certain the singing ban violated the Free Exercise Clause because the applicants had not yet demonstrated that comparable secular activities involving vocalization were treated more favorably. Chief Justice Roberts, who had authored the influential 2020 concurrence urging deference to public health officials, shifted his position and concurred in granting partial relief, reflecting the evolution of the Court's approach after the Roman Catholic Diocese of Brooklyn decision.
Dissenting Opinions
Elena Kaganjoined by Stephen Breyer, Sonia Sotomayor
The dissent argued that California's restrictions reflected legitimate scientific distinctions between different types of activities based on their actual risk of transmitting COVID-19, and that the majority was improperly second-guessing the expert judgments of public health officials in the middle of a deadly pandemic. Justice Kagan contended that indoor worship services — which involve large groups sitting together for extended periods while speaking and singing — are genuinely more dangerous than the brief, transactional secular activities the majority used as comparators.
- The proper comparators for indoor worship services were not retail stores or hair salons — where interactions are brief and transient — but rather other activities involving prolonged indoor gatherings with vocalization, such as indoor lectures, concerts, and theatrical performances, which California had also banned or heavily restricted.
- Federal courts lack the scientific expertise to make fine-grained public health judgments about disease transmission, and the Constitution has long been understood to permit government officials significant latitude to respond to genuine emergencies, particularly when the measures are temporary and evolving.
- By overriding California's science-based framework, the majority was effectively granting religious activities a special exemption from public health rules, creating a 'most favored nation' status for religion that the Free Exercise Clause does not require and that could cost lives during a deadly pandemic.
- The majority's approach was particularly troubling because it was issued on the shadow docket without full briefing or oral argument, yet it effectively resolved significant constitutional questions with potentially sweeping consequences for public health governance.
Background & Facts
South Bay United Pentecostal Church is a congregation located in Chula Vista, California. During the COVID-19 pandemic, California Governor Gavin Newsom implemented a tiered reopening plan called the 'Blueprint for a Safer Economy,' which categorized counties by the severity of virus spread and imposed different restrictions on various activities accordingly. Under this framework, indoor worship services were completely banned in counties falling in the most restrictive tier (Tier 1, or 'purple' tier, indicating widespread transmission), and limited to 25% of building capacity in less restrictive tiers. Meanwhile, a range of secular activities — including shopping at retail stores, visiting hair salons, and working in offices — were permitted to operate at significantly higher capacities or without fixed percentage caps, even in the most restrictive tiers.
South Bay United Pentecostal Church challenged these restrictions, arguing that California was treating religious worship less favorably than comparable secular activities in violation of the First Amendment's Free Exercise Clause. The church sought emergency injunctive relief to allow it to resume indoor services. The federal district court denied the church's request for a temporary restraining order, and the United States Court of Appeals for the Ninth Circuit affirmed that denial, siding with the state's argument that its public health measures were justified.
This was actually the second time the dispute reached the Supreme Court. In May 2020, the Court had denied the church's first emergency request by a 5–4 vote, with Chief Justice Roberts writing an influential concurrence arguing for judicial deference to elected officials during a fast-moving public health crisis. However, by February 2021, the Court's composition had changed: Justice Amy Coney Barrett had replaced the late Justice Ruth Bader Ginsburg. Additionally, the Court had issued a landmark ruling in November 2020 in Roman Catholic Diocese of Brooklyn v. Cuomo, where it struck down New York's capacity restrictions on houses of worship under similar reasoning. Against this backdrop, the church filed a new application for injunctive relief.
The Supreme Court treated the application as an emergency matter on its 'shadow docket,' issuing its decision on February 5, 2021, without full briefing or oral argument. The significance of the case lay in clarifying whether COVID-era public health restrictions on religious worship had to satisfy the same constitutional standards that applied to government actions burdening religion outside a pandemic context.
The Arguments
California's COVID-19 restrictions singled out religious worship for uniquely harsh treatment compared to secular activities that posed similar or greater risks of virus transmission. Because the restrictions were not neutral and generally applicable, they had to satisfy strict scrutiny under the Free Exercise Clause — and they failed that test.
- Secular businesses such as retail stores, personal care services, and even Hollywood film productions were permitted to operate indoors at higher capacities or without fixed percentage limits, while houses of worship were either completely banned from indoor gatherings or capped at 25% capacity.
- The church had implemented extensive safety measures — including social distancing, mask requirements, improved ventilation, and temperature checks — that reduced transmission risk to levels comparable to or lower than those at permitted secular venues.
- Under the Court's existing Free Exercise precedent, when the government treats religious exercise less favorably than comparable secular activity, the restriction is subject to strict scrutiny and must be narrowly tailored to serve a compelling government interest, which California's blanket restrictions were not.
California's restrictions were based on the best available science about how COVID-19 spreads and reflected legitimate differences in risk between activities. Indoor worship services, which involve large groups gathering for extended periods in close proximity while speaking and singing, posed distinctly higher transmission risks than the secular activities the church cited as comparators.
- Public health experts determined that prolonged indoor gatherings with vocalization — a hallmark of worship services — were among the highest-risk activities for COVID-19 transmission, justifying stricter limits than those imposed on brief retail transactions or workplaces with different operational characteristics.
- The restrictions applied to all indoor worship services regardless of denomination or faith, and were part of a comprehensive regulatory framework that also restricted many secular activities, making them neutral and generally applicable rather than targeted at religion.
- Courts should afford significant deference to state officials making complex, science-based judgments in the midst of a rapidly evolving public health emergency, especially given the extraordinary death toll and uncertainty surrounding the pandemic.