Mark Joseph Stern writes:

Friday 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 the liberals. In a pointed opinion, Roberts indicated that he will not join conservative judges’ escalating efforts to override public health measures in the name of religious freedom. Justice Brett Kavanaugh’s dissent, by contrast, falsely accused the state of 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’s dishonest vilification of the state.

SCOTUS’ late-night order in South Bay United Pentecostal Church v. Newsom divided the justices into two camps: those who acknowledge reality, and those who ignore it to score ideological points. 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.

As Roberts noted, however, California does not impose uniform rules on all places where people assemble. The state does strictly limit church attendance. But it applies “similar or more severe restrictions” to “lectures, concerts, movie showings, spectator sports, and theatrical performances.” So the question for the court is less constitutional than scientific: From an epidemiological perspective, are churches more like grocery stores or concerts? And that, the chief justice concluded, is a question for lawmakers, not federal judges.

“The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts declared, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” 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.” Multiple coronavirus outbreaks 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. [Continue reading…]