On Friday, in SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL.v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL., the U.S. Supreme Court declined to reverse lower courts and enjoin California's 25% capacity limit on religious worship services. The petitioners had asked the Court to reverse the lower courts on the grounds that churches were restricted by capacity limits that were not imposed on comparable secular activities. The ruling turned on what activities were considered comparable by the Justices. The majority emphasized that some activities involve greater proximity of participants, and that proximity extends over a longer time, while the dissenters simply noted that factories, offices, and retailers are not subject to the same restrictions.
Chief Justice Roberts, concurring in the decision, analogized worship to lectures, concerts, and movies:
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
As a personal aside I would point out that it appears that the Chief Justice is no longer familiar with laundromats if he believes that they are not places where large groups remain in proximity for extended periods. Based on recent machine breakdowns, I can testify from personal experience that Saturday mornings see significant numbers of people at my local laundromat, who wait, more or less patiently, for the half hour washing cycle and 20-40 minute drying cycle for just one load of clean clothes. Daily mass, in contrast, rarely extends beyond 30-40 minutes total, and, for good or for ill, rarely involves as many people as I have seen at my local laundromat.
Justice Kavanaugh, writing for Justices Thomas, Gorsuch, and himself, drew a different analogy to churches:
In response to the COVID–19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.
The dissenters could have done more to address the majority's distinction of proximity and duration by noting that restaurant dining certainly involves numbers of people in close proximity for extended periods of time, and personal interactions with wait staff that rarely can be done while observing social distancing rules. Similarly, while a quick trip to the barber might only take 15-20 minutes, hair salons routinely schedule services requiring close physical contact between stylists and patrons taking more than two hours, at least when color or other chemical services are involved. Finally, factory shifts and office work are almost never limited only to 60-75 minutes, the average length of most weekly church services; and churches have the same, if not greater, ability to enforce social distancing rules through the roping off of pews or other spacing requirements.
In short, while proximity and duration may distinguish a casual stroll through the mall by consumers who neither visit or purchase items from any of the stores, it is not an adequate answer when looking at the activities that actually occur in many commercial settings.