February 8, 2021
Pandemics, Religious Supremacy, and Supreme Court Overreaching
Ashe Family Chair Professor of Law, Georgia State University College of Law
The Governor of California is dealing with a pandemic in a state that is larger economically than all but five countries in the entire world. Over a million Californians have contracted the virus with almost forty-thousand people dead because of COVID-19. Balancing public safety and saving human lives while maintaining a functioning economy requires careful value judgments by the Governor and his scientific and economic advisors. The rules relating to public and private gatherings are complicated and vary within this huge state depending on the severity of the crisis in different counties. The rules are updated by elected officials on a regular basis depending on numerous objective indicators relating to the spread of the virus. There can be no plausible claim California has not carefully studied and considered how best to deal with this emergency.
The same, tragically, cannot be said for the ruling by the Supreme Court late Friday night overturning that part of California’s response to the pandemic banning indoor religious services (a ban on indoor singing and chanting was upheld for now). This ruling, second guessing excruciatingly hard decisions made by state political officials, is unjustified as a matter of law, inept as a matter of fact, and wholly irresponsible as a matter of politics. Religious supremacy, not religious liberty, is the Roberts Court’s current Trump card.
Where COVID-19 is most widespread, California prohibits indoor gatherings for many activities including museums, movie theaters, restaurants, and worship services while allowing such gatherings outside. This decision was based on scientific evidence that indoor activities especially where people sing or chant are especially dangerous and can lead to super-spreader events. Meanwhile, California has allowed retail and other businesses to remain open both to minimize the economic harm caused by the virus and because people do not tend to congregate while shopping the same way they do while attending religious ceremonies, movies, restaurants, and museums. The State was trying to treat like cases alike and there is not a shred of evidence that California’s rules relating to the virus were intended to discriminate against religion or religious activities.
Yet, the Justices, with barely any explanation at all, overruled the decisions by California’s health and government officials that at this time it is simply too risky to allow indoor gatherings where people congregate together for long periods of time. There were a number of different opinions in the case, and the conservative Justices divided on the ban on singing and chanting, but all six of them agreed that the ban on indoor worship services violated the free exercise cause of the first amendment. All three liberal Justices dissented from this holding.
One would expect that if unelected, life-tenured justices are going to overturn a state’s response to a world-wide pandemic they would at the least specify why the governing rules violate the Constitution. Alas, these justices felt no such obligation. There was no opinion for the Court, and only Justice Gorsuch, joined by Alito and Thomas attempted to justify the Court’s second-guessing in a “statement” not an opinion.
In this statement, Gorsuch relied improperly on what the Court calls “strict scrutiny” to argue that California had not fully explained and justified why it allows some inside activities such as shopping and hair cutting while banning indoor religious services, and he also suggested that the state would have done better to impose capacity restrictions and timing limits rather than a full-time ban. This aggressive judicial oversight might be proper in a case where the government targets religion for discriminatory treatment but is wholly inappropriate for generally applicable laws that treat religious and similarly situated secular activities in the same way.
The essence of Gorsuch’s “statement” is that “since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses.” That is true because the pandemic calls for general rules and religious services are in fact quite different than many shopping activities at retail stores. It does not take a scientist (or a lawyer) to understand that when people come together for indoor religious services, they are likely to spend more time together in close proximity than when shopping for groceries, clothing, or other essentials. The businesses most like places of worship, movie theaters, restaurants, and museums were treated the same way as religious services as were other indoor gatherings where first amendment speech activities were also implicated. Of course, one can always quibble with some lines that are drawn to deal with public health emergencies, but judges should not interfere with such laws absent obvious unreasonableness or discriminatory treatment of constitutionally protected behavior. California’s detailed rules regarding the deadly Covid-19 virus do not fall into either category. As is often the case, Justice Kagan said it best in dissent:
"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. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the State’s policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court’s injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic."
Chief Justice Roberts also issued a short “statement” in which he paid lip service to the deference the Court owes elected officials during a world-wide emergency, but also responded to Justice Kagan’s dissent not with no facts or explanations justifying his vote but with the following nonsense: “I adhere to the view that the Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States. But the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure…but because they are.”
If more people die because of the Court’s decision, the Justices will pay no political price given that they hold their offices for life. Rather than justifying overly aggressive judicial review, the justices’ job security should make them humbler and more modest not less so. Unfortunately, when it comes to religious activities, the Justices act much more like an ultimate veto council than a court of law. The Chief, of all people, should know, understand, and appreciate the difference.