Amicus Brief: Gateway City Church v. Newsom

February 24, 2021

Santa Clara County prohibited all indoor gatherings during a COVID-19 surge, religious and secular alike, from weddings and worship services to conferences, performances, protests, and sporting events. A group of churches asked the Supreme Court for an emergency injunction barring enforcement against places of worship. The same church-state scholars who had filed in Danville Christian Academy v. Beshear, including Katherine Franke, filed in support of the county.

Our brief argued that the county had regulated with scrupulous evenhandedness, sorting activities by health risk rather than by religious character, and that no provision of the Constitution prohibits treating activities that pose different levels of risk differently. The applicants’ argument conflated incidental burdens flowing from neutral regulatory distinctions with religious targeting, a version of the “most favored nation” theory that would require strict scrutiny of nearly every regulation, and that should not be adopted through an emergency order on the shadow docket without full briefing or argument.

As in Danville, the brief argued that the injunction sought would violate the Establishment Clause. Exempting only worship services from a ban that continues to bar political gatherings, lectures, and academic conferences would transform a policy of religious neutrality into one of religious favoritism. The Supreme Court granted the injunction two days later.