America’s highest court deals another blow to “double standard” COVID-19 restrictions

by Daniela Ellerbeck
23 February 2021

By Daniela Ellerbeck, FOR SA Legal Advisor

In a decision handed down on 5 February 2021, the Supreme Court of the United States (“SCOTUS”) stopped yet another state (California) from enforcing its double standard COVID-19 restrictions.  This is the second time the country’s highest court heard a matter involving South Bay United Pentecostal Church, having decided in 29 May 2020 not to grant the church’s initial application.

SCOTUS’ latest refusal to tolerate bias against the religious community, is in keeping with the Court’s decision last year in the matter of Roman Catholic Diocese of Brooklyn v Cuomo.  In that case, the Court prohibited New York Governor, Andrew Cuomo, from enforcing his COVID-19 restrictions on religious services, because they applied double standards which discriminated unfairly against the religious community. (In this regard, Justice Gorsuch aptly pointed out that “while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”)

Different state, same problem

California was the only state in the USA to impose a total ban on indoor religious services, while at the same time allowing most retailers to operate with 25% indoor occupancy and other businesses to even operate at 50% occupancy or more.

In other words, California was openly imposing more stringent limitations on religious gatherings than on businesses – the same problem the State of New York faced in front the Court at the end of 2020.  One could refer to it as “the double standards conundrum”. Gorsuch J pointed out in his statement: “When a State so obviously targets religion for differential treatment… regulations like these violate the First Amendment”.

The State’s reasons for treating religious gatherings differently

The State of California insisted to the Court that religious worship was different to all other gatherings and therefore needed to be treated differently, with especially onerous regulation.  To support this assertion, the State argued that the reason for this especially onerous regulation was that religious exercises (1) involve large numbers of people mixing from different households (2) in close physical proximity (3) for extended periods (4) with singing.

What the Court found

SCOTUS found in the church’s favour, ruling that California was not allowed to prohibit indoor worship services. However, the Court did say that the State could cap attendance at such services at 25% occupancy, and could prohibit singing or chanting during such indoor services.

Chief Justice Roberts, who concurred with the majority ruling, pointed out that the “State’s … determination – that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero – appears to reflect … insufficient appreciation or consideration of the interests at stake.”

Furthermore, Justice Barret pointed out that the church remained free to come back to Court and show that California’s ban on singing does not apply to all other sectors of society – i.e. “if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”

Justices Gorsuch, Thomas and Alito stated that California singled out religion for worse treatment that many secular activities.  They stated that the State had failed to explain why it must totally ban indoor worship services to address its concerns.  They said that it made a mistake by thinking that its above-mentioned reasons for treating religious worship differently to everything else, are always present in such worship, and always absent from the other (secular) activities that its regulations allow.

They took pains to point out that large numbers of people pack into train stations or wait in long queues at the businesses which the regulations allowed to remain open.  They observed that California did not explain why simply setting limits on the time and the number of people attending a worship service was insufficient to address its concerns – especially when it had found limiting numbers to be adequate for “so many stores and businesses” (where the State imposed no limit on duration).

Finally, they also strongly disagreed with the Court’s decision to allow California to ban singing during services, because it seemed as if Hollywood’s film music and television studios are permitted to sing indoors – something, they noted, which California also did not squarely deny.


The take-home is that the COVID-19 pandemic does not permit governments to have “favourites”. If they choose to apply one set of rules to one sector of society, they need to use the same rules for every other sector, unless they can show that there are justifiable reasons to treat that sector differently and that the restrictions imposed, are the least restrictive ones at their disposal.

Note: FOR SA has been representing the interests of 18,5 million people from across the religious community of South Africa, in our engagements with Government to ensure that the Regulations and Directions issued under the national state of disaster are equitable, reasonable and fair.

Daniela Ellerbeck

Daniela Ellerbeck is an attorney of the High Court of South Africa. She serves as FOR SA’s Legal Advisor and Parliamentary Liaison. For her full bio, see

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