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The big story is even bigger than it appears to be at first blush.

Close to midnight on Friday, while rioters used the killing of George Floyd as a pretext to set America aflame, the U.S. Supreme Court issued a 5-4 ruling that declined to enjoin the states of California and Illinois from restrictions on communal worship imposed due to the coronavirus pandemic.

Most startling was that Chief Justice John Roberts not only joined the court’s four left-leaning justices (Ruth Bader GinsburgStephen BreyerSonia SotomayorElena Kagan) in declining to uphold religious liberty. Roberts also wrote a brief opinion explaining his decision.

That opinion is an eye-opener. Roberts accords the right to worship no deference by virtue of its being a fundamental liberty expressly protected by the First Amendment. We are to see it as an activity like any other activity, commercial or social, the pros and cons of which technocrats must weigh in fashioning regulations. The opinion, moreover, champions the power of government officials to dictate to the people who elect them without “second-guessing by an unelected federal judiciary” — exactly the power that the Bill of Rights, and the incorporation jurisprudence by which the court has applied much of it to the states, are meant to deny.

This is truly remarkable because it is so gratuitous.

As Amy Howe explains at Scotusblog, both states had asked the justices to stay their hands because the cases were essentially moot. That is, the restrictions that worshipers in Southern California and Chicago were protesting either had been superseded by less stifling (though still objectionable) regulations or were about to be lifted (albeit without a guarantee that objectionable regs would not then be imposed). The Supreme Court could have summarily declined to issue an injunction, with no further comment and without prejudice to the right of churches and members of their congregations to challenge any new restrictions. Between the fact that the cases were not ripe for resolution, and the fact that the Supreme Court rarely issues injunctions (as opposed to stays that merely suspend matters temporarily), the justices simply could have sidestepped this one. That approach would have been consistent with the court’s usual and prudent reluctance to rule on weighty constitutional questions unless it is truly necessary.

So knowing there was no need to do this, Roberts willfully waded into the maelstrom. Why would he do that?

It is inconceivable that the chief justice does not know the Trump Department of Justice (DOJ) has mobilized in defense of civil liberties. At first, DOJ’s Civil Rights Division intervened in religious liberty cases. It has enjoyed success in pressuring municipalities to relax some offensive restrictions, principally contending that governments run afoul of the First Amendment when they discriminate against free-exercise rights — subjecting houses of worship to more adhesive conditions than are applied to commercial and other activities.

Since then, DOJ has begun expanding its push into the realm of economic regulation. This is a tougher row to hoe for federal authorities because states are supreme in regulating intrastate commerce. Governors get a wide berth so long as they avoid discriminating against constitutionally protected interests or activities. Attorney General William Barr, nevertheless, has argued that protecting individual liberty is a constitutional imperative. Thus, the DOJ has admonished against burden shifting, theorizing that it is not an American’s burden to prove that his or her job is “essential.” Instead, it is the state’s burden to show that a job — a person’s livelihood — cannot be performed reasonably safely in the absence of the restrictions the state chooses to impose.

Just yesterday, the Justice Department filed a statement of interest supporting a lawsuit by Michigan businesses that claim Democratic Gov. Gretchen Whitmer’s restrictions are “arbitrary and irrational.” In announcing the action, Civil Rights Division chief Eric Dreiband proclaimed, “The Constitution permits appropriate state and local government restrictions to protect the health and safety of Americans, but it does not permit arbitrary limits that limit the right of all people in our country to be treated equally and fairly by the government.”

Chief Justice Roberts’s Friday night opinion appears to put a harpoon in that anti-discrimination theory.

In rejecting the religious liberty claim, Roberts counters that it is not a matter of unlawful discrimination if different things are regulated in different ways. Religious gatherings, he rationalized, are being restricted like gatherings that are physically similar, such as lectures, concerts, theater productions and spectator sports. He conceded that less intense restrictions have been imposed on other activities, such as shopping, banking and laundering. But that, he insists, is because of salient differences in the way they are conducted: small groups, no extended proximity, and so on.

But wait a second. What about the constitutional pedigree of religious exercise? That was the point pressed by Justice Brett Kavanaugh, in a brief dissent joined by Justices Clarence Thomas and Neil Gorsuch. (Justice Samuel Alito also opposed the denial of First Amendment relief but did not join Kavanaugh’s dissenting opinion.)

Moreover, what about our fundamental right to property, our need to work and our obligation to take care of our dependents? Not the court’s job, Roberts says:

“Our Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect. … When those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. 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.” [Citations and internal quotations omitted.] . . .

(Excerpt from The Hill. Article by Andrew C. McCarthy.)

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Connie
June 5, 2020

For some time I have not perceived Justice Roberts trustworthy as a professed “man of faith”. He continues to disappoint in matters that should line up more with biblical guidelines as expressed via the Constitution by our founding fathers. Not to make a judgment, for only God judges hearts and man’s conscience…but in relation to Justice Roberts, I wonder about the coming apostasy: Hebrews 6:4-6.

2
Lynda Smith
June 4, 2020

I have had my concerns about Justice Roberts and they keep coming. Yes, I also pray he will come to see the error of his ways and first ask for forgiveness from God, and those in this country he has let down.

Lynda Collins
June 4, 2020

I believe Judge Roberts has become so compromised. I pray some one will investigate him and find out how he became so compromised. Need honest and trustworthy journalist to investigate him, please

7
Evelyn
June 4, 2020

I pray for all the supreme justices especially John Roberts and all those who are deciding that Churches should not be deemed “Essential”. Our country was founds on Biblical principals. ” Essential” why are bars and marijuana essential.

2
Kevin Dougherty
June 4, 2020

I may be a sole dissenting voice here, but I totally expected this. The yardstick that has consistently used in Church/State questions has been “Is the treatment of the Church been similar to the treatment of other similar events/organizations. We as the Church have been OK with that, and even used the argument that it was not, legitimizing that as a valid yardstick. This time it went against us, also expected since CA had similar rules in effect for other events drawing large crouds to small spaces for extended lengths of time.

1
Cathy
June 4, 2020

Yesterday I read an article from Family Research Council that quotes Judge Roberts saying one of his reasons is the lack a medication for the virus. I’d like to find a way to notify him that yes in fact we do have a medication:
Hydroxychloroquine + Azythromycin + Zinc.

16
    Doug Grice
    June 4, 2020

    That’s what the “Left “ has been feeding us , that there is no known Medication for this Virus

    5
Donna Steele
June 4, 2020

I pray for the Holy Spirit to teach Judge Roberts the truth- I pray that he cannot even sleep until he sees the truth of what he has said and what he has done to his fellow Americans and to religious freedom- Lord I pray for you to open his eyes and give him the courage to recant what he has said! I pray this in the mighty Name of Jesus!

37
Teresa Jenkins
June 4, 2020

Has the door been unlocked to persecution of the church of believers of Jesus Christ?

12
    Doug Grice
    June 4, 2020

    How about when America wanted to repeal Obamacare and Judge Roberts rules but it was not a tax?

    5

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