Last night, the Supreme Court ordered California to allow churches to resume indoor worship services. However, California is permitted to limit attendance to 25 percent capacity. In addition, the state’s ban on singing and chanting at religious services can remain in place for now.
The Court fractured over these matters. Justices Thomas and Gorsuch would have enjoined the entire set of restrictions imposed by California.
Justice Alito would have done so too after 30 days, unless California could “demonstrate clearly that nothing short of [its] measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.”
Like Thomas and Gorsuch, Justices Barrett and Kavanaugh would have have enjoined the state from limiting attendance at religious services. However, they would have kept the ban on singing and chanting in place for now.
Only Chief Justice Roberts agreed with the entire outcome. He stated:
The State’s present determination — that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero — appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.
Or maybe it reflects actual hostility to those interests. Either way, California’s determination makes no sense. As Justice Gorsuch observed, devastatingly:
Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. At “Tier 1,” applicable today in most of the State, California forbids any kind of indoor worship.
Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more. Apparently, California is the only State in the country that has gone so far as to ban all indoor religious services. . . .
The State tells us that worshippers are sure to seek close physical interactions. . . Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks. And California allows people to sit in relatively close proximity inside buses too.
Nor, again, does California explain why the narrower options it thinks adequate in many secular settings— such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here. Especially when those measures are in routine use in religious services across the country today.
California worries that worship brings people together for too much time. Yet, California does not limit its citizens to running in and out of other establishments; no one is barred from lingering in shopping malls, salons, or bus terminals. Nor, yet again, has California explained why more narrowly tailored options, like a reasonable limit on the length of indoor religious gatherings, would fail to meet its concerns.
(Emphasis in original text)
The left-liberal judges — Kagan, Breyer, and Sotomayor — dissented. Justice Kagan stated:
Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. . . .
I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.
A “science-based policy” that somehow eluded “scientists” in every other state.
Isn’t it odd how Kagan and company become judicially “modest” when religious groups seek relief from the state? If only they would embrace this restrained, hands-off attitude when the left asks for help.
Isn’t it odd how Kagan and company fret about the suffering Supreme Court decisions might cause when the court intervenes to protect religious freedom against an irrationally discriminatory rule? If only they would worry this much about loss of life, and be this restrained, in cases arising from the war on terrorism — cases in which the government tries to protect the safety of troops and civilians by holding terrorists in prison and keeping them from entering the country.
There’s not a lot that I’m looking forward to in the public sphere during the next few years. But I am looking forward to more shrill, hypocritical dissents from Judge Kagan.