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Case Law Update: COVID-19 and Executive Order Restrictions on Occupancy in Places of Worship

Updated: Jan 8, 2021

The United States Supreme Court recently issued its opinion in South Bay United Pentecostal Church v. Newsom, 590 U.S. ___ (2020). The decision is one of the first dealing with ramifications of COVID-19 to reach the Supreme Court. South Bay United Pentecostal Church (“the Church”) sought relief from limitations imposed on it as a result of Governor Gavin Newsom’s Executive Order (the “Order”), which limited the occupancy of places of worship, among other businesses, in California to 25% of building capacity or a maximum of 100 attendees. But the Church’s application for injunctive relief was denied.

Justice Kagan denied the Church’s application, and Chief Justice Roberts concurred in the denial and issued a concurring opinion. In support of the denial, Chief Justice Roberts acknowledged the effects of the Pandemic that swept the nation earlier this year, noting over 100,000 people had died as a result at the time the opinion was written. In discussing the Order, he noted that “[a]lthough California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.” He further noted that the Order placed similar restrictions on secular gatherings such as concert halls, movie theaters, and other places where “large groups of people gather in close proximity for extended periods of time.” Distinguishing places such as grocery stores and banks, which are not subject to the same limitations under the Order, Chief Justice Roberts reasoned that such businesses do not involve large groups of people that congregate or remain in close proximity to each other for extended periods of time. Thus, he concluded, because the Order applies evenly to places of worship and other secular forums where people gather, it does not violate the Constitution or the Free Exercise Clause.

Not surprisingly, several of the Justices would have granted the Church’s application for injunctive relief. Specifically, Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the application, and Justice Kavanaugh, with whom Justices Thomas and Gorsuch joined, issued a rare dissenting opinion. He concluded that the Order appeared to violate the Constitution by limiting attendance at places of worship, noting that comparable secular businesses, such as factories, offices, supermarkets, restaurants, and a litany of others, were not subject to the 25% occupancy cap. And though the Church was willing to abide by the State’s rules regarding social distancing and hygiene, it sought to be excepted from the rule limiting its occupancy to 25%. In dissent, Justice Kavanaugh determined that Newsom provided a compelling justification for distinguishing between places of worship, which were subject to the 25% occupancy limitation, and other comparable secular businesses, which were not subject to the 25% occupancy limitation. Therefore, Justices Thomas, Alito, Gorsuch, and Kavanaugh would have granted the Church’s application for injunctive relief.

Ultimately, there will likely be many more cases testing the boundaries of what states and the Federal Government can and cannot do to combat COVID-19. How the boundaries of the law will be stretched by such cases is yet to be determined. Until then, stay safe and healthy, and let’s await the next interesting decision from the Court . . . .


Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area.  Elle earned her law degree at the University of California Davis, School of Law.  She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology.

Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law.

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