By a 5-4 vote, with Roberts joining the liberals, SCOTUS just denied a church’s emergency application seeking to block the enforcement of a COVID-19 order strictly limiting large gatherings, including religious services. Kavanaugh writes dissent.

Link: https://www.supremecourt.gov/opinions/19pdf/19a1044_pok0.pdf

There is a huge gulf between Roberts’ opinion permitting the California restrictions and Kavanaugh’s dissent. Roberts say: Look, this is obviously a reasonable health restriction. Kavanaugh says: California is engaging in “discrimination against religious worship services”!

I take this as a clear indication from Roberts that he’s not going to block COVID-19 orders that limit religious services unless they are really blatantly discriminatory. And this one obviously isn’t.

Meanwhile, Kavanaugh claims that California engaged in rank discrimination.

Note: What Roberts just did—concurring in the denial of an emergency application—is relatively rare. I suspect he wanted to respond to Kavanaugh’s dissent, perhaps because it contains a highly misleading account of the facts. Kavanaugh leaves out some key information...

California applies the same rules to churches that it imposes on theaters.

The churches demanded that California instead apply the rules it imposes on grocery stores.

So the question is: From an epidemiological perspective, is a church more like a theater or a grocery store?

Roberts says: Unelected federal judges should not be overriding the state’s epidemiological assessments during a pandemic.

Kavanaugh says—well, *he literally doesn’t address this argument.* He totally ignores it. His dissent is absolutely befuddling. It disregards THE question!

Seriously—go read Kavanaugh’s dissent. He falsely implies that California singled out churches for disfavored treatment, imposing especially draconian restrictions on worship that it did not apply to any secular businesses. And that is just not true. https://www.supremecourt.gov/opinions/19pdf/19a1044_pok0.pdf

Kavanaugh’s dissent reads more like a brief by the church than a judicial opinion. Judges aren’t supposed to warp the facts to fit their argument. But it seems Kavanaugh was itching to accuse California of religious discrimination. I’m glad Roberts rebutted his nonsense.

One last thing: @steve_vladeck points out the uncommonly sharp kicker to Roberts’ opinion, which dismisses Kavanaugh’s conclusion as “quite improbable.” https://twitter.com/steve_vladeck/status/1266587553400066049?s=21 https://twitter.com/steve_vladeck/status/1266587553400066049

I wrote about Roberts and Kavanaugh's debate about COVID-19 restrictions on churches. Roberts is on the side of reality. Kavanaugh warps the facts to concoct a phony charge of religious discrimination. https://slate.com/news-and-politics/2020/05/supreme-court-coronavirus-california-churches.html