Supreme Court Gets Something Right

The U.S. Supreme Court says limiting worship services to 25% of the fire code’s maximum occupancy does NOT violate the U.S. Constitution.

By a 5-4 margin, California’s emergency health rules passed muster because “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports and theatrical performances, where large groups of people gather in close proximity for extended periods.”

Courts resist interfering with state governments. Particularly where the issues are fact-intensive, fluid, scientifically uncertain, and urgent, courts say 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.”

These decisions are complex matters of judgment. There’s no clear violation of rights, and it appears preachers of God are being treated just like teachers – or preachers of other subjects. (Conservative Chief Justice John Roberts, who wrote this opinion, showed similar restraint upholding Obamacare and dissenting against recognition of gay marriage.)

The decision also shows the danger (or delight) of letting Donald Trump continue to occupy the Casa Blanca. Trump-appointee Brett Kavanaugh wrote the dissent, in which Trump-appointee Neil Gorsuch joined, as did Clarence Thomas and Samuel Alito.

Reading that dissent, I paused. Kavanaugh wrote: “The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap,” including factories and pet-grooming shops. Treating comparable businesses differently would be a constitutional problem; but hadn’t Roberts said that wasn’t happening? (Justices should not be disagreeing on facts, but on the facts’ legal significance. 

 

Then I realized what Kavanaugh was up to. 

 

Because judicial precedent (previous relevant cases) matters, the language of lawyers and judges is often less “A is right, B is wrong,” than “C, in a previous decision, is more like A than it is like B.” For example: if we’re litigating who owns a blue coffee cup (something no court has ever decided), if there are decisions saying I own blue things, I’ll argue that I win; and if other decisions state you own bowls, dishes, and wineglasses, your lawyer will argue that the cup is functionally similar to those – so you win. 

 

The majority opinion compared churches with universities and lecture halls. Kavanaugh says churches are like factories and pet-grooming places, not classes and lectures.  Kavanaugh’s argument is absurd, but it’s a great example of justices wanting to reach a particular result when the law mandates otherwise, and resorting to a silly argument. Among other things, factories and offices are often large and spread out, with employees sometimes working relatively alone, rather than sitting and listening and singing all in one room. For public-health purposes in a pandemic, the physical differences are significant.

Kavanaugh’s and Gorsuch’s willingness to espouse such a dumb position seems to say, “We owe the Donald, and as Christian fundamentalists are his people, we’ll go all out for them. Screw the Constitution.”

(Wonder if they thought through this idea of churches being like factories and gyms. If churches are essentially businesses, producing faith for profit, rather than places where people seek and share spiritual solace and exchange ideas, then why can’t they be taxed like factories and tattoo parlors?)

But seriously. Even non-lawyers should be able to see how far Kavanaugh is from honest legal decision-making. In this country, we should all hope our justices will show at least some respect for law.

                                                – 30 --

[The above column appeared this morning, Sunday, 14 June 2020, in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's website.  A radio commentary based on this column will be available later today on KRWG's website under News / Local Viewpoints, and will air during the week both on KRWG and on KTAL, 101.5 FM (www.lccommunityradio.org).]

[You can read the U.S. Supreme Court opinion here.  It's relatively short.  Of course, the chutch has emphasized the procedural nature of the case -- standards are higher when asking for pre-trial injunctive relief than in a full trial -- but I would tend to expect the same result if the parties push on for some final ruling.  If I were Roberts, I would ask why I should tie the hands of governments in future pandemics; and worship services would still seem more like lectures or college classes than like factories or pet salons, even a year from now.] 

[Obviously I agree with the decision. As the Ninth Circuit opinion, by 2-1, said, “We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure.  In the words of Justice Robert Jackson, if a ‘court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.’ ”
Further, I've wondered recently, talking to friends who do not wear masks, just what version of Christianity holds that it's appropriate to risk others' health or lives.  One acquaintance told me yesterday that there were "spiritual reasons" for omitting the mask.  Another said his faith and his avoidance of masks were two separate things, but I still suggested that despite his political irritation at being told by the State to wear a mask, I suspected his God might want him to do so too.  We agreed to disagree.  I still love him and his family.]

[Roberts's deference to elected governments in this case was consistent with his votes in other notable cases, on both sides of the ideological chasm. When Roberts led the Supreme Court in upholding Obamacare's individual mandate against conservative challenges in 2012, for example, he justified his decision as an act of deference to the elected officials who enacted the Patient Protection and Affordable Care Act to life, writing "It is not our job to protect the people from the consequences of their political choices." (National Federation of Independent Business v. Sebelius). Similarly, in 2015, when the Court recognized the constitutionality of gay marriage, Roberts dissented, . Criticizing the majority for second-guessing the wisdom of the democratically accountable lawmakers that prohibited same-sex unions." (Obergefell v. Hodges).]