By Tim Ryan

WASHINGTON (CN) — Chief Justice John Roberts sided with the liberal wing of the Supreme Court in a late-night ruling Friday declining to block California’s restrictions on reopening places of worship amid the coronavirus pandemic.

The order challenges rules California has placed on places of worship as part of its efforts to balance reopening the economy while also limiting the spread of the novel coronavirus.

Under current rules, places of worship in California can reopen at 25% capacity, with a maximum of 100 attendees. Those guidelines came out on May 25 after California’s initial reopening plan put places of worship in the same stage of reopening as nail salons, movie theaters and tattoo parlors.

South Bay United Pentecostal Church challenged its placement within the reopening plan on May 8, questioning why schools, manufacturing facilities and even restaurants were allowed to open in some capacity under the order, but not California churches.

A federal judge denied the church’s request for a temporary restraining order and a week later the Ninth Circuit denied an injunction pending appeal.

In a ruling that saw Roberts joining with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor, the high court denied the church’s request for an injunction on Friday night.

In a three-page concurring opinion, Roberts explained the California reopening plan, while indeed a restriction on religious activity, does not treat places of worship any differently than other institutions that present the same risk of spreading the virus.

“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,” Roberts wrote. “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 of time.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh would have granted the church’s request for an injunction.

A three-page dissent penned by Kavanaugh and joined by Thomas and Gorsuch argues the restrictions violate the Constitution because they do not apply equally to secular businesses and California has not presented a compelling reason as to why.

“The church and its congregants simply want to be treated equally to comparable secular businesses,” Kavanaugh wrote in dissent. “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”

The church had requested an injunction by Sunday, when Christians mark the holy day of Pentecost. In arguing for the court to block California’s restrictions, the church called the occupancy cap “arbitrary,” noting retail businesses are either subject to looser limits or no limits at all.

The church warned religious institutions around the country will start to reopen in defiance of government orders without definitive legal guidance from the high court on what is and is not allowed under the First Amendment.

“The deepening conflict between and among the various circuit courts of appeal has triggered serious uncertainty as to what legal standard applies when citizens consider whether and under what circumstances they may freely exercise their religious faith by attending services at their church, temple, mosque or other place of worship,” the church’s brief states.

Charles LiMandri, an attorney with the Rancho Santa Fe, California, firm LiMandri Jonna who represents the church, called the decision “disappointing,” but that the church will continue to press its case in lower courts.

“If it is necessary to go back up to the U.S. Supreme Court after the Ninth Circuit rules again, we will benefit from a much more favorable standard,” LiMandri, who is working with the Thomas More Society on the case, said in a statement. “We are hopeful that fact would also lead to a better result for religious liberty.”

The California Attorney General’s Office did not immediately return a request for comment.

California argued the new guidance allowing places of worship to operate at 25% capacity make the claims irrelevant because the church is allowed to reopen, even if in limited fashion, and that the Supreme Court should not weigh in on the new limits that the lower courts never had the opportunity to address.

The state also argued it has a strong public interest in taking steps to protect public health during the ongoing pandemic.

“When the attendance restriction proves unnecessary, the state will lift it or loosen it,” California’s brief states. “In light of the tremendous uncertainty continuing to surround this new and deadly virus, however, it would be rash to do so today, before public-health officials have had the opportunity to evaluate evidence of the policy’s effectiveness in practice.”

On the same day, the court turned down a similar injunction request from a church in Illinois.

To view SCOTUS ruling and briefs from South Bay United Pentecostal Church and the state of California, see below:

[Open .pdf in new window]