When the court rules whether a specific measure is the “least restrictive” means, they are ruling on which measures do, and do not, achieve the stated goal. That is epidemiology, not law.They aren’t ruling on the science. That’s stuff like patent law for which there is a separate bar. This is the implication of rights: what the constitution says. The judges determine the legal principles at stake...if congress doesn’t like it or doesn’t think the science supports a particular ruling they are free to adjust the applicable law or constitutional provision. Judges aren’t supposed to inject their own knowledge into their rulings about things other than the law.
When the court put forward a standard of percent occupancy, they asserted that fire code occupancy has some meaningful relation to pandemic risk. And they further asserted that the relationship is so solid it can be used to compare a church to a retail establishment and establish standards for both.
That is not a ruling on rights. That is ruling on the science, and getting it really badly wrong.
A rights ruling would just be to send it back to the public health agency and ask them to rewrite the rule in content neutral terms. (number of people, duration of stay, number of square feet, and so on.)