Religion Unplugged

Can government ban singing in worship? U.S. Supreme Court weighs in

By Bobby Ross Jr. | Religion Unplugged

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Legal battles over pandemic-era worship gatherings rage on.

Last October’s confirmation of Justice Amy Coney Barrett flipped the U.S. Supreme Court’s script on such questions.

The latest ruling came last Friday night: A 6-3 order stopped California’s ban on indoor worship in most of the nation’s most populous state. But the justices allowed a 25 percent capacity limit to remain.

Perhaps most interestingly, the majority said California can keep prohibiting singing and chanting. For now.

On the singing issue, the justices sang several different tunes:

Chief Justice John Roberts: “The State has concluded … that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework.”

Barrett, joined by Justice Brett Kavanaugh: “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain. … (H)owever, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.”

Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito: “California has sensibly expressed concern that singing may be a particularly potent way to transmit the disease. … But, on further inspection, the singing ban may not be what it first appears. It seems California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites … expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.”

Justice Elana Kagan, joined by fellow dissenting Justices Stephen Breyer and Sonia Sotomayor: California’s “restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular — and many of the secular gatherings, too, are constitutionally protected. In all those communal activities, California requires mask wearing and social distancing, and bars indoor singing and chanting, to reduce the risk of COVID transmission.”

Read the full column.

This column appears in the online magazine Religion Unplugged.

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