At approximately 10:30 p.m. EST on Friday, February 5, 2021, the Supreme Court issued a fractured ruling granting in most significant part South Bay Pentecostal Church’s emergency application for a writ of injunction against Governor Newsom’s draconian shuttering of nearly all churches in California. (By “nearly all,” I mean churches for 99.9% of the population.) South Bay Pentecostal Church, a member of the United Pentecostal Church International, is a congregation led by Bishop Arthur Hodges III in San Diego County, California, that I have had the privilege of representing along with a team of attorneys for the past year. On that team, my role has been to serve as the main brief writer.

If you recognize the name “South Bay,” that is because last May we also asked the Supreme Court for relief from Governor Newsom’s shuttering of churches. Specifically, on Saturday, May 23, 2020, we submitted an emergency application to the Supreme Court over Governor Newsom’s decision to let manufacturing plants, warehouses, and retail reopen, but keep churches closed. The next Monday, May 25, 2020, Governor Newsom ordered that churches could reopen at 25% of capacity or 100 persons, whichever was fewer. And then, the next Friday, May 30, 2020, the Supreme Court declined to order further relief, ruling 5-4 that Governor Newsom’s new order was good enough for the time being.

Governor Newsom waited a few months, and then in late-August 2020, imposed his “Blueprint for a Safer Economy.” That set of regulations closed churches in most of the State, but not in San Diego County until early November 2020. Like California, New York also issued regulations shuttering churches, to which the Diocese of Brooklyn objected. The Diocese of Brooklyn brought a lawsuit, did not receive relief from the lower courts, and then also submitted to the Supreme Court an emergency application for a writ of injunction. The Supreme Court then issued a simple and brief majority opinion joined by five Justices.

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Here, instead of a single, clear opinion, South Bay received a short order—joined by six Justices—as well as three opinions authored by various Justices and joined by other various Justices. Those three opinions explain how the Justices agree or disagree with each other, and make their case as to what a longer majority opinion should have said. The relationship of these opinions to each other are as confusing as California’s byzantine array of regulations concerning every aspect of life in the Golden State.

Presently, California’s “Blueprint for a Safer Economy” has four sets of regulations that apply to different counties based on the number of COVID-19 cases in the county. Those four sets of regulations are color-coded, from Purple to Yellow. Below were the regulations for churches:

By “with modifications,” California means that churches have to comply with a church-specific safety protocol written by government bureaucrats. On page 3, that protocol states that churches must “discontinue indoor singing and chanting activities.”

In South Bay’s emergency application, we asked for three things:

(1) South Bay asked the Supreme Court to strike down Governor Newsom’s total ban on worship inside churches in the Purple Tier.

(2) South Bay asked the Supreme Court to strike down Governor Newsom’s ban on singing at indoor church services.

(3) South Bay asked the Supreme Court to strike down Governor Newsom’s percentage of occupancy limits at worship services (25% capacity in the Red Tier, 50% in the Orange and Yellow Tiers). We had already succeeded in having the hard attendance caps (100 people in the Red Tier, and 200 people in the Orange Tier) struck down by the Ninth Circuit. South Bay stated that it would abide by neutral requirements imposed across the board in California, such as a masking requirement, social distancing between households, and a comprehensive sanitation regimen.

In the “order” portion of the ruling, all six conservative Justices agreed that Governor Newsom’s total ban on worship in churches in the Purple Tier was unconstitutional. If you are unfamiliar with the Justices, this includes Chief Justice John Roberts, Justice Clarence Thomas, Justice Samuel Alito, and the three Justices appointed by former President Trump—Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The three different opinions were authored by Chief Justice Roberts, Justice Barrett, and Justice Gorsuch. The best explanation of this first holding appears to come from Chief Justice Roberts, who wrote in his opinion that “the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.” (Roberts op., at 2.)

Turning to California’s ban on singing in churches, the Supreme Court left it in place for the time being, but five Justices made clear that they were very suspicious of it. Justices Thomas, Alito, and Gorsuch would have struck it down, but Justices Kavanaugh and Barrett were more wary. All five Justices noted that it was not clear whether singing was currently allowed in “California’s powerful entertainment industry” (Gorsuch op., at 5; Barrett op., at 1), but differed as to what this meant regarding how they should rule. Justices Kavanaugh and Barrett held that this confusion meant that they should not grant relief in the context of an emergency application for a writ of injunction. (Barrett op., at 1.) Justices Thomas, Alito, and Gorsuch held that this confusion was California’s fault, and so the injunctive relief should issue. (Gorsuch op., at 5 n.2.) But as stated by Justice Barrett, all five Justices—a majority of the court—believe that if it is true that “a chorister can sing in a Hollywood studio but not in her church,” then California has a real problem. (Barrett op., at 1.) They then invited further rulings by the lower courts. In response, California modified its indoor singing ban. Now, indoor singing is permitted by a choir, but not the congregation.

Turning to the percentage of occupancy restrictions, the various statements in the various opinions are a bit confusing. First, in the “order” portion of the ruling joined by all six conservative Justices, it simply states that California is “enjoined from enforcing the Blueprint’s Tier 1 prohibition on indoor worship services,” but that California is “not enjoined from imposing a 25% capacity limitation on indoor worship services in Tier 1.” That portion of the ruling also states that the “order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations . . . in a generally applicable manner,” meaning that further challenge based on more facts is invited, and that the 25% restriction is just a placeholder.

That a further challenge is actually invited is made clear by the other opinions. In the six-Justice “order” portion of the ruling, it states that Justices Thomas and Gorsuch “would grant the application in full,” meaning they need no further convincing that the percentage of occupancy restrictions are unconstitutional. It also states that Justice Alito would strike down the percentage of occupancy restrictions if in the 30 days California could not adequately justify them. This is all well and good, but most importantly, Justice Gorsuch wrote on behalf of himself and Justices Thomas and Alito that “today’s case concerns the total ban on indoor worship found in ‘Tier 1,’” and “nothing in our order precludes future challenges to the other disparate occupancy caps applicable to places of worship, particularly in ‘Tiers’ 2 through 4.” (Gorsuch op., at 4 n.1.) Justice Barrett wrote on behalf of herself and Justice Kavanaugh that they “agree with Justice Gorsuch’s statement,” except as to the striking down of the singing ban. (Barrett op., at 1.) In other words, five Justices joined in the notion that this ruling is just about the indoor worship ban, and that the capacity restrictions need to be reviewed again by the lower courts which have so far not “followed the extensive guidance this Court already gave.” (Gorsuch op., at 4.)

At first blush, the Supreme Court’s denial of two of South Bay’s three requests would seem disheartening. But the Supreme Court stated in the 6-3 “order” portion of the ruling that this denial is “without prejudice,” meaning that it is just a denial right now, and that the request needs to be re-asked of the lower courts. While I would have hoped that the Supreme Court would have published a strong 6-3 opinion rebuking California’s discrimination against people of faith, I cannot say that I am too surprised by the reticence exhibited by Justices Kavanaugh and Barrett. Here, the district court did not rule on either the singing ban or the indoor attendance restrictions. Instead, the district court upheld the ban on worship in churches, and so did not proceed to those other restrictions that only come into play when you can actually enter a church.

The Ninth Circuit similarly did not meaningfully rule on them. It struck down the hard attendance caps but stated that the request to strike down the percentage of occupancy restrictions needed to be re-submitted to the district court. It also applied “rational basis review” to the singing ban, a very deferential legal standard that requires little analysis, and then upheld it. With no meaningful analysis by the lower courts on these issues, it was difficult for the Supreme Court to know how to rule—except to say that “rational basis” is probably not the right standard.

Normally, it takes years for a case to reach the Supreme Court, having spent years in front of each of the lower courts, so that the factual record can be developed, polished, refined, and then clearly presented to the Supreme Court on essentially undisputed facts. So, I can understand the Supreme Court’s frustration at the odd nature of the record presented to it, with the lower courts not providing significant legal analysis on South Bay’s main arguments.

The Supreme Court’s opinions directly impact the lives of 325 million Americans, and so it only acts very deliberately. Further, an emergency application for a writ of injunction is very rarely granted, and only in times of the greatest urgency. In this procedural context, unfortunately, it appears that the Supreme Court felt that it could only express its significant displeasure with the lower courts and send the case back down. This, in truth, was a ruling in favor of faith. The Supreme Court enjoined the most egregious of Governor Newsom’s restrictions while making clear that when churches go back down to the district court to challenge his attendance and singing restrictions, he better have very good evidence to justify his discrimination.