Last Friday the Supreme Court issued another so-called shadow docket ruling in South Bay United Pentecostal Church v. Newsom. In a split decision, the Supreme Court enjoined enforcement of California’s total ban on indoor worship services in areas of the state with the highest rate of COVID-19 infection (Tier I). Yet, the court left in place California’s 25% capacity limits, as well as the ban on singing and chanting in indoor church services in Tier I designated areas. Although striking down the ban on churches was not surprising for anyone who has been paying attention, given the recent decision in Roman Catholic Diocese of Brooklyn. It was still rather shocking to see many of the Justices double down on analysis that has received so much criticism, including from prominent conservative legal voices.

First, let’s get into the necessary legal background. The basis for the majority’s analysis in both South Bay and Roman Catholic is built upon what’s called the “most favored nation” theory of religious free exercise. Prior to the Roman Catholic decision, however, the general understanding of the theory was that strict scrutiny applied wherever the government was regulating religious exercise while a comparable secular activity was being exempted. To illustrate the application of this theory in these pandemic times, if indoor church services were being banned but movie theaters (where people also are assembled indoors together for longer periods) were not, strict scrutiny would apply.