Justice Roberts took 'clear swipe' at Kavanaugh in opinion siding with liberals in religion case: report

On Friday night, the Supreme Court handed down a decision in South Bay United Pentecostal Church v. Newsom, holding that California Gov. Gavin Newsom's restrictions on church gatherings are not a violation of religious liberty. Chief Justice John Roberts crossed over to join with the liberals for a 5-4 split.

But the ruling was dramatic in a key way. As court watcher Mark Joseph Stern wrote for Slate, Justice Brett Kavanaugh "falsely accused the state of religious discrimination in an extremely misleading opinion that omits the most important facts of the case" in his dissent — and was so dishonest that Roberts went out of his way to rebuke him in the Court opinion.

"As Roberts noted ... California does not impose uniform rules on all places where people assemble," wrote Stern. "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."

By contrast, wrote Stern, "Kavanaugh crafted a narrative of invidious religious discrimination. His dissent reads like a brief by the church, not a judicial opinion. Kavanaugh alleged that Newsom’s order 'indisputably discriminates against religion' in violation of the free exercise clause. For support, the justice insisted that 'comparable secular businesses,' like grocery stores and pharmacies, 'are not subject' to the same restrictions imposed on churches. California must have a 'compelling justification' for this disparate treatment, and he saw none."

"But Kavanaugh’s assertion that California treats churches and 'comparable secular businesses' differently begs the question: what is a comparable secular business?" wrote Stern. "Is a church really just like a grocery store, where people spend as little time as possible, separated by aisles and shopping carts, rarely speaking to one another? Or is it more like a concert, where people congregate for lengthy periods, shoulder to shoulder, often speaking or singing and thereby spreading droplets that may contain the coronavirus?"

"What is genuinely shocking about Kavanaugh’s dissent is that he does not even address this question," wrote Stern. "The dispute lies at the heart of the case, and Kavanaugh ignores it. He simply takes it as a given that churches are 'comparable' to grocery stores when it comes to risk of spreading COVID-19. By warping the facts, Kavanaugh paints California’s rules as irrationally discriminatory, when in fact they are based on medical advice Newsom has right now."

That argument was so ridiculous, wrote Stern, that Roberts took a "clear swipe at Kavanaugh" in his opinion, writing: “The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”

"As long as Roberts has anything to say about it, the Supreme Court will not facilitate the spread of a deadly virus in the name of the First Amendment," concluded Stern.

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