Joins court's liberals to deny.....

Roberts joins court's liberals to deny California church's lockdown challenge

The chief justice warns against 'second-guessing' state officials amid pandemic.

By JOSH GERSTEIN

A sharply divided Supreme Court late Friday turned aside a church's urgent plea that California's coronavirus lockdown orders are putting an unconstitutional burden on religious freedom.

Chief Justice John Roberts sided with the court's liberals in rejecting a San Diego church's request for relief from Gov. Gavin Newsom's most recent directive limiting churches to 25% of their normal maximum capacity, with an absolute maximum of 100 people at any service.

In a three-page opinion issued just before the stroke of midnight Washington time, Roberts said it would be unwise for the court to intervene on an emergency basis as state officials try to grapple with the ebb and flow of a pandemic caused by a highly infectious and sometimes deadly virus.

"The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement," Roberts wrote.

The chief justice, an appointee of President George W. Bush, said it was not the role of judges to substitute their judgment for health experts and elected officials who appear to be acting in good faith.

"Where those broad limits are not exceeded, they 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," Roberts wrote.

However, the chief justice also seemed to reject the substance of the South Bay United Pentecostal Church's complaint when he said the state order in question seemed "consistent with the First Amendment." He said there were legitimate reasons to treat religious services differently from other activities, as many states' lockdown schemes do.

"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 of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods," Roberts wrote.

The court's four other GOP appointees dissented, with three of them joining in an opinion written by the court's newest member, Trump appointee Brett Kavanaugh. He said the California policy "indisputably discriminates against religion."

"I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment," Kavanaugh wrote. "Absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship."

Justices Clarence Thomas and Neil Gorsuch joined Kavanaugh's dissent. The court's late-night order says Justice Samuel Alito also dissented, but he did not sign on to Kavanaugh's opinion.

The Supreme Court's action on the California dispute came several hours after it turned down a bid by two Chicago-area churches for relief from stay-at-home orders Illinois Gov. J.B. Pritzker issued as part of an effort to control the spread of coronavirus.

The justices suggested the dispute was moot after Pritzker and other officials moved Thursday to make the previous limits on religious services voluntary instead of mandatory.

"The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant," the court wrote in a brief order Friday evening.

The order appeared to be unanimous, as no justice publicly recorded any dissent.

The Romanian churches — one in Chicago and one just outside the city — took their complaints to the Supreme Court after being cited by local officials for violations of the lockdown orders. Lower courts declined emergency relief, but their lawsuits claiming that the orders violated the Constitution's guarantees of freedom of religion remain pending.

Attorneys for the churches argued that their clients still urgently needed protection from an overbearing state government because there was no guarantee that the orders would not be reissued. However, the justices said the churches were free to come back if that transpired.

All the churches has asked the high court to act in time to allow for more expansive services this Sunday, which is the holiday of Pentecost.

While churches in various states have complained that the restrictions are excessive and unfairly put religion at a disadvantage to businesses like liquor stores, state officials have defended the measures by noting mass infections that have taken place at multiple churches across the U.S. and around the world.

Medical experts say the close contact of a typical church service, coupled with singing and loud talking, creates a major danger for the spread of droplets containing the virus.