Jurisprudence

Kagan Warns the Supreme Court’s New COVID Decision May Kill People

Elena Kagan stands outside wearing a robe and a mask.
Justice Elena Kagan attends Joe Biden’s inauguration. Alex Wong/Getty Images

Late on Friday night, the Supreme Court blocked California’s public health ban on indoor religious services in a splintered 6–3 decision that augurs a major shift in the law of religious liberty. Justice Elena Kagan’s extraordinary dissent accused her conservative colleagues of endangering lives by overruling public health officials and potentially facilitating the spread of COVID-19. But the court’s new conservative majority ignored her warning—and, in the process, gave itself new powers to strike down alleged burdens on religious freedom. The Supreme Court effectively tossed out decades of case law in a late-night emergency order, unsettling precedent that states have relied upon to craft COVID restrictions. As Kagan sharply noted, Friday’s order “injects uncertainty into an area where uncertainty has human costs.”

Advertisement
Advertisement
Advertisement
Advertisement

South Bay United Pentecostal Church v. Newsom is the latest in a long line of COVID cases to reach the Supreme Court. The plaintiffs challenged three pandemic-related restrictions on religious worship: a total ban on indoor services in areas where cases are surging (which covers much of the state right now), a 25 percent cap on indoor services where they are permitted, and a ban on singing and chanting during those services.

In a muddled order, SCOTUS shot down the total ban on indoor services, but upheld the 25 percent cap and the singing ban. The majority’s decision—issued as a highly infectious “California variant” of the coronavirus sweeps across the state—allows residents to resume indoor worship, the cause of countless superspreader events since the start of the pandemic. While there is no single majority opinion, five justices supported the proposition that California’s regime violates free exercise because it treats secular businesses more favorably than religious establishments. Notably, no justice in the majority even pretended to apply the appropriate standard for this emergency request, which requires plaintiffs to prove that the legal rights at issue are “indisputably clear” and that an injunction is “in the public interest.” They simply issued a decision on the merits, another example of the court making law through its shadow docket.

Advertisement
Advertisement

Kagan, joined by Justices Sonia Sotomayor and Stephen Breyer, dissented from this order in a blunt opinion highlighting the possibility that her colleagues’ decision will kill people. “Justices of this Court are not scientists,” Kagan began. “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. … That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.” She pointed out that, contrary to the court’s belief, California has not actually treated churches less favorably than secular businesses and assemblies: Political meetings, lectures, and plays are also banned, she wrote—and these “secular gatherings,” like religious worship, “are constitutionally protected” by the First Amendment. The court simply created “a special exception for worship services.”

Advertisement
Advertisement

“To state the obvious, judges do not know what scientists and public health experts do,” Kagan explained. “So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.” She continued:

I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.

Advertisement
Advertisement

None of Kagan’s conservative colleagues heeded her advice. To the contrary, five justices—Clarence Thomas, Neil Gorsuch, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett—dove deeper into “armchair epidemiology” than ever before. Gorsuch complained that California allowed “movie studios, malls, and manicurists” to open while keeping churches shuttered. He simply ignored the extensive expert testimony that religious services pose a dramatically higher risk of spreading COVID infection than these secular businesses.

Gorsuch also castigated California for allowing singing during film production and not during worship, disregarding the stringent rules that apply to filmmaking (including thrice-weekly testing) that cannot possibly be applied to church services. He went so far as to suggest that California officials wrote “confusing” regulations to conceal this alleged unequal treatment. (Even Kavanaugh and Barrett backed away from this attack on the state’s singing rules because they found the record “unclear.”) And in a startling passage, Gorsuch accused public officials of issuing COVID restrictions in bad faith: “Government actors have been moving the goalposts on pandemic-related sacrifices for months,” he wrote, “adopting new benchmarks that always seem to put restoration of liberty just around the corner.”

Advertisement
Advertisement

This five-justice ultraconservative majority also took a huge step toward overturning Employment Division v. Smith, the landmark 1990 precedent curtailing free exercise claims. In Smith, the Supreme Court held that religious plaintiffs cannot claim an exemption to laws that are neutral and generally applicable—that is, laws that don’t target religion. While Smith was authored by Justice Antonin Scalia and joined by his fellow conservatives, it is widely despised by today’s conservatives, who demand broader exemptions for religious liberty. The new majority either rewrote or implicitly reversed Smith on Friday by creating a new rule: If a law creates any exemption for any secular business or activity, then it is no longer neutral toward religion. Thus, the law must give an exemption to religious establishments and religious exercise as well. This revision of what constitutes “neutrality” toward religion portends a new era of religious freedom jurisprudence in which churches, employers, colleges, and individuals are all able to flout laws that include a single secular exemption.

Advertisement
Advertisement

Chief Justice John Roberts attempted to find a middle ground on Friday, reiterating that “federal courts owe significant deference to politically accountable officials” but finding that California’s total ban on indoor services reflected “insufficient appreciation or consideration of the interests at stake.” But Roberts is no longer the court’s swing vote, and his five more conservative colleagues seized upon this case to dramatically undercut the ability of “politically accountable officials” to limit COVID’s spread—or impose any regulation that happens to burden religion. The short-term consequences of this newly extreme solicitude for religious freedom may be measured in human lives. The long-term consequences will give free exercise priority over all other constitutional rights, regardless of the harm it may inflict on others.

Advertisement