In summary

The decision to allow churches to reopen was undoubtedly good politics, but it begs the question: What about movie theatres?

By Justin Hughes, Special to CalMatters

Justin Hughes is a law professor at Loyola Law School, Loyola Marymount University, Justin.hughes@lls.edu. He wrote this commentary for CalMatters.

While most of us were focused on the protests triggered by the police killing of George Floyd, something else extraordinary happened recently: places of worship all over California reopened for in-person services.  

Although the Supreme Court confirmed state governments’ power to order churches closed to reduce COVID-19 transmission, Gov. Gavin Newsom chose to allow churches, temples and mosques to reopen, releasing a 13-page “industry guidance” for reopening places of worship on May 25.   

Los Angeles and Sacramento quickly followed suit at the county level, while county health departments in the Bay Area – Alameda, Contra Costa, Marin and San Mateo counties – were more circumspect, allowing Pentecost to pass without reopening churches. 

Permitting churches to reopen – the decision in Sacramento and Los Angeles – was undoubtedly good politics.  But it begs a simple question: if places of worship have permission – and guidelines – to reopen, what about physically similar secular venues?  In particular, what about movie theatres?

In asking this question one doesn’t need to get into any comparison between religious devotion and Hollywood’s passion for film.   The question comes from how similar the two experiences are from a social distancing point of view. 

At the Supreme Court, the decision upholding the state’s response to the pandemic was a 5-4 decision, with Chief Justice John Roberts and the four liberal justices forming the majority.  Justice Brett Kavanaugh dissented, arguing that California’s restriction  discriminates against places of worship and in favor of “comparable secular businesses.”  Kavanaugh pointed to supermarkets, factories, pharmacies and cannabis dispensaries as “comparable” to church services.

But supermarkets, retail shops and factories are not the right comparison.  Cinemas are.  Film screenings and religious services both involve a large group of people gathered, at the same time, in an enclosed space for one to three hours.   Not only do the people share the same room, but they enter about the same time and exit about the same time through limited doorways – in each case creating challenges for social distancing.  

When Kavanaugh asked, “Why can someone safely walk down a grocery store aisle but not a pew?” he was not only being rhetorical, he was being disingenuous.   In terms of airborne transmission, the problem with a religious service is not walking down a pew; it’s the amount of time people spend seated with one another in an enclosed space.

Some mega-churches are larger than cinemas; on the other hand, many cinemas – including those in modern multiplexes – are big or bigger than more typical churches.  And while some of the grand old movie palaces – like the Castro in San Francisco (seating 1,400) – may be historic landmarks, on average cinemas probably have more modern HVAC systems than places of worship. 

Both churches and cinemas can be limited, as places of worship have been, to 25% of their seating capacity.  And many California cinemas – Arclight, AMC, Regal and others – have assigned seating, meaning that the ticket systems can be pre-programmed to seat people at a distance from other moviegoers.  That’s not a technology typically available with church pews.  

Indeed, as focal points of COVID-19 transmission, religious services – with sermons and, if permitted, singing – are more like live theater than film screenings: when real humans are talking loudly or singing there is a lot more projection of the droplets we all now know about.   In comparison, when Greta Garbo is ready for her close-up, that film moment – like every film moment – is, well, breathless.

Comparing the physical similarities of film screenings and faith-based ceremonies is not meant to diminish the importance religion has for many Californians.  Religious services are the center of spiritual life for many: a 2014 Pew survey found that 31% of Californians said they attend at least weekly services.   The number of M. Night Shyamalan-like cinephiles is surely much smaller.   And the number of places of worship in California dwarf the number of movie screens.  There are about 4,800 movie screens in California and Nevada, while there are more than 5,500 places of worship in California’s six southernmost counties, more than 4,400 places of worship in the nine counties in the Bay Area, and close to 900 churches, temples and mosques in Sacramento County.

For a long time, movie theatres have been in “Stage 3” of both state and county reopening plans.  Sacramento has just given the state-level green light for cinemas to reopen this weekend, but Los Angeles County has not yet followed suit, so the country’s single largest film-going market will remain shut for now.   All this is according to comprehensive, continually revised guidelines.  

Meanwhile, those same overall reopening plans have seemed to studiously avoid mentioning places of worship.   Instead, churches, temples and mosques have always seemed on their own discrete (and discreet) track to reopen – even though congregants are generally older, more COVID-19 vulnerable populations than those going to see “Sonic The Hedgehog” or “The Invisible Man.” 

At the end of the day, this disparate treatment of two kinds of very similar “event spaces” – one religious, one secular – speaks to how much our leaders’ handling of the COVID-19 storm has mixed science-based stewardship with reasonable political calculations.  

 So, no, Justice Kavanaugh, you got the whole thing backward: if there is any “discrimination” here, it has favored freedom of religion over the freedom of speech and freedom of assembly embodied in a movie house.

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Justin Hughes is a law professor at Loyola Law School, Loyola Marymount University, Justin.hughes@lls.edu. He wrote this commentary for CalMatters.

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