A few days ago, at midnight, the Supreme Court rejected a church’s challenge to California’s COVID-19 restrictions by a 5–4 vote, with Chief Justice John Roberts joining what is considered the liberal wing of Breyer, Sotomayor, Ginsburg and Kagan. In a pointed concurring opinion, Roberts chided the conservative wing for trying to override public health measures in the name of religious freedom. Actually Roberts just chided Justice Brett Kavanaugh’s dissent, which basically argued that the state engaged in religious discrimination in an extremely misleading opinion that omits the most important facts of the case. Roberts went out of his way to scold Kavanaugh for his dishonest vilification of the state’s intention.
SCOTUS’ late-night order was in South Bay United Pentecostal Church v. Newsom and it divided the justices into two camps: those who acknowledge that State’s can impose restrictions on religious institutions in the same manner as secular ones of similar size and those who believe (or argue) that any restriction on the right to worship violates the First Amendment.
The case began when a California church accused Gov. Gavin Newsom of violating its religious freedom. Newsom’s current COVID-19 policy limits attendance at houses of worship to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower. At the same time, it allows certain secular businesses, like grocery stores, to operate under looser guidelines, allowing more people to enter. The church claimed this disparate treatment between churches and commercial establishments runs afoul of the First Amendment. The First Amendment prohibits governments from issuing any laws that prohibit the free exercise of religion. But of course no matter how absolute the language in certain Constitutional provisions may seem, there have always been acceptable limits especially in the name of public health and safety.
Kavanaugh focused on how certain businesses do not have a 25% restriction: “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.” He said it was “indisputably clear” religious discrimination. (how can it be indisputably anything if 5 SCOTUS judges disagree with you one wonders). But Kavanaugh chose to ignore how religious institutions have been granted more freedoms by the same Newsom order than institutions of similar size. His decision does not even make an analysis of which category of business a church is more akin to. Frankly, his entire dissent reads like it was brief written on behalf of the church petitioner. Maybe that’s why it was only actually joined by Thomas and Gorsuch. Alito did not join the Kavanaugh dissent instead voting to grant the petition without a written opinion.
The four of the justices in the majority chose not to write an opinion and just denied the relief. That is not uncommon when an injunction is sought from SCOTUS particularly where the law in the area is fairly clear – as it is here. The general rule when a state is accused of abridging “religious liberty” is that churches and other religious institutions may be subjected to the same laws as everyone else, but they cannot be singled out for inferior treatment. For example, for anyone who has ever sat on the board of a religious institution (as I have) its no surprise that churches must comply with the fire code, follow most labor laws, obey the criminal law, and so forth. As the Supreme Court explained in Employment Division v. Smith (1990), people of faith must still obey “neutral” state laws of “general applicability.”
But Roberts felt it necessary to write a concurring opinion that made clear how he felt about Kavanaugh’s position. Roberts of course points out that the restrictions placed on churches are more comparably compared to larger venues than the ones Kavanaugh selectively listed. Roberts listed “lectures, concerts, movie showings, spectator sports, and theatrical performances.” Many of those venues remain completely shut off to people so in fact the State of California had accommodated religious expression greater than similarly-sized institutions.
Roberts apparently also wanted to make clear where he stands on any future attempts to use religious expression as a valid way to overturn a State law:
“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.” He added that the Constitution leaves such decisions “to the politically accountable officials of the state,” whose decisions “should not be subject to second-guessing” by judges who lack “background, competence, and expertise to assess public health.” He noted that multiple outbreaks of covid-19 in California have been traced back to religious services. California has good reason to treat churches more like concerts—where people “congregate in large groups” and “remain in close proximity for extended periods”—than grocery stores, where they can social distance. For courts, that should be the end of the matter, according to Roberts.
That line about judges who “lack background, competence and expertise. . ” is not just a backhanded slap at Kavanaugh, its an interesting potential omen. Its a reminder and a warning to lower Federal courts (now packed with Trump appointees) that SCOTUS will not stand for them placing their judgment in the place and stead of governors, legislators and public health officials. It also bodes that Roberts may split with the right wing of the court in future decisions about religious liberty. This fall, the Court is set to hear arguments in Fulton v. City of Philadelphia which asks the question whether religious institutions can ignore a ban on anti-LGBTQ discrimination by government contractors.
Among other things, the plaintiffs in Fulton are asking SCOTUS to overrule Smith ; that would grant religious institutions exceedingly broad power to defy secular laws that they disagree with on religious grounds. But Roberts’ vote in South Bay United suggests, at the very least, he recognizes that the Court must not afford so much latitude to religious groups that it endangers public health. His decision here could mean that he will also be the fifth vote in Fulton upholding the ban since he shows deference to government officials as long as religious institutions are not treated inferiorly. I have previously written on this blog how the conservative wing has been very willing lately to overturn precedent even of long standing. It is comforting to know that Roberts may be willing to be his own person here and curtail the practice. We’ll have to wait and see.
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