Mark Silk on Justice Roberts Swings Away From Unfettered Religious Liberty on Church Openings

Chief Justice of the United States John Roberts walks to the Senate chamber at the Capitol in Washington, Jan. 16, 2020. (AP Photo/Matt Rourke, File)

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college’s Leonard E. Greenberg Center for the Study of Religion in Public Life.


On May 31, just before protests over the killing of George Floyd pushed COVID-related news onto the back burner, the U.S. Supreme Court declined to grant an injunction sought by a Pentecostal church in California to suspend Gov. Gavin Newsom’s requirement that in-person worship be held to 25% of building capacity or 100 attendees.

The court was narrowly divided 5-4, with Chief Justice John Roberts siding with the four-member liberal wing in a written concurrence opposed by a written dissent from Justice Brett Kavanaugh.

Since restrictions on in-person worship have eased by now in California and other places around the country, this might not seem like a big deal. But by siding with the government in the hot religious liberty issue of the past few months, Roberts makes clear that his vote is no sure thing for the conservative side in the religious liberty cases the court will decide in the coming weeks.

Arguing that California’s guidelines “appear consistent with the Free Exercise Clause,” Roberts wrote:

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.

For his part, Kavanaugh ignored Roberts’ comparisons and simply asserted that by allowing people to frequent those places which Roberts judged dissimilar, California was unconstitutionally discriminating against religion.

Kavanaugh’s dissent, which was joined by Justices Clarence Thomas and Neil Gorsuch, is a good example of the spiritual libertarianism rampant on the right these days. It follows the conservative Christian Legal Society’s recent claim that “the First Amendment right for religious congregations to assemble is unalienable and fundamental” — effectively proof against any government restriction.

By contrast, Roberts emphasizes the government’s particular responsibility for guaranteeing public safety, stating, “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.”

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Source: Religion News Service