Those concerned about the loss of liberty in the times of COVID, and even more so, those who believe or hope that that there is some paramount common law rights that cannot be curtailed by government, will be interested in this report from Larry Bennett. Mr Bennett is a US attorney and firefighter and is Program Chair, Fire Science & Emergency Management at the University of Cincinnati. He writes a newsletter on fire and EMS law in the United States.  His most recent newsletter (June 2020) reports on a decision from the Supreme Court of the United States (the equivalent of the High Court of Australia).  I quote his report in full:


On May 29, 2020, in South Bay United Pentecostal Church, et a. v. Gavin Newsom, Governor of California, the Court (5 to 4) denied the church’s request for an injunction, in a rare late-night ruling, and upheld the California restriction of attendance at places of worship to 25% of building capacity, or a maximum of 100 attendees. The San Diego area church had lost before a U.S. District Court judge, and also the 9th Circuit.

Chief Justice John Roberts wrote:

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.


The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not ac-countable to the people. See Garciav. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).”

Dissenting Opinion by Justice Brent Kavanaugh:

“I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.


The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.

Legal Lessons Learned: There has been litigation throughout the nation challenging corona virus restrictions; this is the first case to reach the U.S. Supreme Court.

Note: On May 6, 2020, the U.S. Supreme Court declined to hear an appeal by PA businesses seeking an injunction. The Court will not hear an appeal unless at least 4 Justices agree to hear case. See article: “U.S. Supreme Court rejects request to end Pennsylvania’s coronavirus lockdown.”

For related, Australian posts, see: