COVID-19, the Court, and the Rules of the Game

The "rules of the game" provide the context in which economic decisions are made.  They tend to be stable over time, but they can and do change, and change is often prompted by an extreme event, such as a pandemic.  This current COVID-19 pandemic has brought temporary changes in the rules of the game for churches in many states.  As has been mentioned in other blog posts, the state of California decided on March 19, 2020, that no churches should meet.  See here.

Two months later, on May 25, 2020, the state of California issued new guidelines that allow religious groups to meet but with use of face coverings, social distancing, regular cleaning, and other practices.  A particularly contentious issue is attendance.  The state says that attendance must be limited to 25% of building capacity or a maximum of 100 attendees.  This limit will be in place for 21 days, after which public health officials will determine if it needs to remain in place.  The full list of requirements can be found here.

The attendance limits were quickly challenged by a church in San Diego, CA, and the U.S. Supreme Court rejected that challenge on Friday, May 26, 2020.  The Supreme Court ruled that the state of California's restrictions on church attendance will stand.  See this short write-up at the Religion News Service here.

It is worth nothing that the court's voting was not unanimous.  It was a divided ruling, with the yes votes barely beating the no votes by a 5-4 margin.  The yes voters argued that allowing churches to reopen at limited capacity was consistent with the First Amendment because other large gatherings like movies and sporting events were also restricted.  In other words, churches are not being singled out.  The no voters argued that supermarkets and many other businesses did not face the restriction so that churches were being unfairly discriminated against.

The courts play an important role in the development and persistence of the rules of the game.  Changes in laws, which are a big part of the rules of the game, might originate in one part of society (like a governor or health official's decision), but the courts must adjudicate before the change becomes permanent.