John Roberts is a disgrace.
Supreme Court Chief Justice John Roberts joined liberal justices in the majority.
WASHINGTON—The Supreme Court in a 5-4 decision rejected a California church’s request to set aside public-health orders capping attendance at services, issuing opinions shortly before midnight Friday.
The decision revealed sharp differences between Chief Justice John Roberts, who joined liberal justices in the majority, and other conservatives over the response to Covid-19.
The South Bay United Pentecostal Church, in Chula Vista, Calif., contended that the caps, to 25% of capacity or a maximum of 100 persons, discriminate against religion because some secular businesses, such as supermarkets, factories and restaurants, weren’t held to similar limits. With many Christian clergy determined to hold Pentecost services on Sunday, the church’s brief warned that enforcing such public-health orders held the “potential for widespread civil unrest.” The brief quoted President Trump’s statement last week that “I will override the governors” if they fail to lift limits on in-person religious services.
State and county officials countered that their orders placed fewer restrictions on in-person religious services than other mass-audience activities, such as concerts, sporting events and theatrical performances, which currently may not be held at all. “Labor in manufacturing facilities, warehouses, and offices does not typically involve large numbers of people singing or reading aloud together in the same place, in close proximity to one another, for an extended duration,” the state’s brief said, “which increases the danger that infected individuals will project respiratory droplets that contain the virus.”
Lower courts rejected the church’s challenge to the public-health orders, and in an opinion issued alongside the midnight order, Chief Justice Roberts appeared incredulous that the charge of religious discrimination could be entertained.
Gov. Gavin Newsom’s executive order “aims to limit the spread of Covid-19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine,” Chief Justice Roberts wrote, noting that asymptomatic carriers “may unwittingly infect others.”
While churches faced fewer restrictions than other gatherings, 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,” the chief justice wrote.
“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 wrote, but the Constitution principally assigns such judgments “to the politically accountable officials of the States.”
Absent clear infringement of constitutional rights, state officials “should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people,” he wrote.
In the California case, “the notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable,” he wrote.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined him in the majority, but issued no statements.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh dissented.
Justice Kavanaugh, joined by Justices Thomas and Gorsuch, issued an opinion rejecting California’s distinction between in-person religious services and retail businesses.
“California undoubtedly has a compelling interest in combating the spread of Covid-19 and protecting the health of its citizens,” he wrote, but it failed to justify the attendance limits for in-person religious services when a “litany of other secular businesses…are not subject to an occupancy cap.”
“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” he wrote. Unless the state imposed the same occupancy limits across the board, Justice Kavanaugh argued, the public-health order violated the First Amendment right to free exercise of religion.
Otherwise, he said, “the Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities.”