A divided U.S. Supreme Court eased California’s curbs on at-home religious services, adding to a string of orders that have freed worshipers from state and local restrictions designed to stem the Covid-19 pandemic.

In an unsigned 5-4 order issued late Friday night, the court cleared two Northern Californians to resume hosting weekly Bible studies and communal worship for eight to 12 people.

The majority said California was unconstitutionally discriminating against religion in parts of the state by limiting in-home gatherings, including worship services, to three households without imposing similar restrictions on commercial establishments.

“California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time,” the four-page order said.

The case divided the court along lines that have become familiar in Covid cases. The three Donald Trump appointees — Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — joined Justices Clarence Thomas and Samuel Alito in the majority. Chief Justice John Roberts joined the three liberal justices in dissent.

Writing for three of the dissenters, Justice Elena Kagan said California’s rules were neutral, applying to non-religious gatherings as well.

“California limits religious gatherings in homes to three households,” Kagan wrote. “If the state also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the state does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.”

Justices Stephen Breyer and Sonia Sotomayor joined Kagan’s opinion. Roberts said nothing other than that he would have denied the request.

California Governor Gavin Newsom, a Democrat, argued that private gatherings pose a particular health risk because of the prospect of prolonged conversations among attendees and the likelihood than homes will be smaller and less well ventilated than commercial facilities.

Newsom also said the Supreme Court didn’t need to act given that the state already plans to ease its restrictions because of the falling number of Covid-19 cases and an expansion in vaccinations.

California’s Covid infection rate is currently the third lowest in the nation, and almost 20% of residents are fully vaccinated.

The residents, Jeremy Wong and Karen Busch, live in Santa Clara County, which has a state designation as Tier 3, meaning indoor gatherings can’t involve more than three households. Under revised California rules set to take effect April 15, indoor gatherings in Tier 3 counties will be capped at 25 people, with no limit on the number of households.

The Supreme Court in February let indoor services resume in most of California at 25% capacity. That order didn’t directly affect the state’s separate restrictions on private gatherings.

The majority on Friday hinted at frustration toward a San Francisco-based federal appeals court, saying the case marked the fifth time the high court had intervened to block California Covid restrictions as discriminatory after the appellate court had allowed them.

“It is unsurprising that such litigants are entitled to relief,” the Supreme Court majority said.

The case is Tandon v. Newsom, 20A151.

The above comes from an April 10 story on BloombergLaw.com