Churches Win over Pandemic Protections, says a Fractured Supreme Court

A fractured US Supreme Court voted at near midnight on February 9, in an emergency, unsigned decision to permit California to resume indoor religious services despite a widespread pandemic. However, the Justices:

• Continued to ban singing and chanting
• Allowed capping attendance at 25 percent of capacity

The decision is South Bay United Pentecostal Church v. Newsome.

California Governor Gavin Newsome had closed the doors of churches, synagogues, and mosques in the most dangerous “Tier 1” pandemic areas.

The churches had demanded that Newsome open houses of worship at 100 percent occupancy with mandatory mask-wearing, social distancing, and sanitation measures in place.

No Liberal Majority

The ruling also demonstrated that Chief Justice John Roberts, who voted with the three liberal justices, could not form a 5-4 liberal majority as he did before Justice Ruth Bader Ginsberg’s death on September 18, 2020.

While Ginsberg was alive, California’s church petition and a similar case from Las Vegas were voted down this summer by a 5-4 liberal majority.

The February 9 ruling also demonstrated that Justices Amy Coney Barrett and Brett Kavanaugh aren’t as archly conservative as liberals feared they would be.

Both Barrett and Kavanaugh wanted to leave the church restrictions in place. In her first signed, one-paragraph opinion, Barrett said she would have unblocked the order against singing.

The Archconservative Distinction

The “archconservative” distinction belongs to Justices

• Neil Gorsuch
• Samuel Alito
• Clarence Thomas

The three justices said they would have tossed out all of the public safety restrictions.

Gorsuch wrote that the state had favored its Hollywood entertainment industry over church services. “If Hollywood [had] a studio audience or film-singing competition while not a single soul [entered] California’s churches, synagogues, and mosques, something has gone seriously awry,” Gorsuch wrote.

At a recent Federalist Society meeting this fall, Alito famously whined that religion had become an “unfavored right.”

Liberals and Roberts Dissent

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented, saying they would have left all of the restrictions in place.

Roberts, in a concurring opinion, explained why a middle-of-the-road ruling was appropriate. He said that the Court should generally defer to public health experts but that there were limits to that deference.

“The state has concluded, for example, that singing indoors poses a heightened risk of transmitting Covid-19. “I see no basis in this record for overriding that aspect of the state public health framework,” Roberts wrote in a short opinion.

Armchair Epidemiology

Justice Elena Kagan noted that none of the justices is a scientist.

She accused the conservatives of substituting their own judgment for the epidemiologists and elected officials who are “desperately trying to slow the spread of a deadly disease.”

“I cannot imagine that any of us has delved into the scientific research on how COVID spreads or studied the strategies for containing it,” she wrote.

“So, it is alarming that the Court second-guesses the judgments of expert officials and replaces their conclusions with its own. In the worse public health crisis in a century, this foray into armchair epidemiology cannot end well.”

Conservatives Block Pandemic Protections in NY

On November 25, 2020, with newly confirmed Justice Barrett on the Court, the justices voted 5-4 to block Governor Andrew Cuomo from enforcing strict limits on attendance in places of worship in New York.

“Even in a pandemic, the Constitution cannot be put away and forgotten,” the unsigned New York case stated.

“Restrictions that bar people from attending worship services “strike at the very heart of the First Amendment’s guarantee of religious liberty.”

NPR’s Jason Breslow and Nina Totenberg write, “Both the New York and California cases have come before the Court as emergency applications, and thus do not have the kind of extended briefing and oral arguments that accompany the Court’s other cases.

“The orders that result generally are short and unexplained: Friday night’s unsigned opinion, for instance, is only 19 lines long, and it does not say how the majority decided on the 25 percent capacity limit.”

The Beginning of a New Era

Trump has been impeached twice, and we’re awaiting his conviction. Meanwhile, his three Conservative justices will serve for at least a generation.

At the same time, Merrick Garland, President Obama’s Supreme Court nominee to fill the late Justice Antonin Scalia’s seat (but never given a hearing), is awaiting his Senate confirmation as President Biden’s Attorney General.

Now that McConnell is no longer the US Senate Majority Leader, given the victory of Senators Reverend Warnock and Jon Ossoff in Georgia, it’s Chuck Schumer’s turn to confirm justices and judges.

Liberals are waiting for Clarence Thomas, who is 72, to hang up his sordid robe. He’s been on the Court for three decades since George H.W. Bush nominated him in 1991 after he sexually harassed Professor Anita Hill.

President Biden has apologized to the nation for confirming him.