A Supreme Legacy Of Order

In a 5-4 decision, US Supreme Court Chief Justice John Roberts sided with California's right to public safety over a church's challenge to be immune from common sense during a pandemic.

The Supreme Court on Friday turned away a request from a church in California to block enforcement of state restrictions on attendance at religious services.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. joining the court’s four-member liberal wing to form a majority.

“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the free exercise clause of the First Amendment,” Chief Justice Roberts wrote in an opinion concurring in the unsigned ruling.

“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,” the chief justice wrote. “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.”

Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh noted dissents.

“The church and its congregants simply want to be treated equally to comparable secular businesses,” Justice Kavanaugh wrote in a dissenting opinion joined by Justices Thomas and Gorsuch. “California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.”

“The state cannot,” Justice Kavanaugh wrote, quoting from an appeals court decision in a different case, “‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”

The court’s ruling was its first attempt to balance the public health crisis against the Constitution’s protection of religious freedom. And it expanded the Supreme Court’s engagement with the consequences of the coronavirus pandemic, after rulings on voting in Wisconsin and prisons in Texas and Ohio.

The case was brought by the South Bay United Pentecostal Church in Chula Vista, Calif., which said Gov. Gavin Newsom, a Democrat, had lost sight of the special status of religion in the constitutional structure.

“The Covid-19 pandemic is a national tragedy,” lawyers for the church wrote in their Supreme Court brief, “but it would be equally tragic if the federal judiciary allowed the ‘fog of war’ to act as an excuse for violating fundamental constitutional rights.”

The brief, filed May 23, asked the justices to block a ruling the day before from a divided three-judge panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, saying that the shutdown orders did not single out houses of worship for unfavorable treatment. The majority said state officials had struck an appropriate balance.

“We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure,” the majority wrote in an unsigned opinion that went on to quote a famous dissent from a 1947 Supreme Court decision. “In the words of Justice Robert Jackson, if a ‘court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’”

Luckily, Roberts was the voice of reason here that saved America from becoming a theocracy.

For now.  But remember, there were four justices who agreed that the church has the right to kill you with a deadly disease, and that your right not to die from COVID-19 cannot take precedence over the church's right to violate health and public safety.

A second Trump term would end us all.