Josh Lyman in The West Wing described Friday as “take out the trash day.” On Friday, the fictional White House would release as many of its bad news stories as possible in the knowledge that they would be reported in Saturday’s newspapers, because (so the thinking went) no one reads Saturday’s papers.

For the past four years under the Trump administration, it seemed like Friday had become “take away people’s rights day.” Presumably relying on the same lack of media attention, it seemed that week after week, the regime released executive orders damaging to the rights of immigrants, nonbelievers, and the LGBTQ community (among others) on Friday afternoons. Those of us in the nonprofit legal community started to take it almost personally, seeing our weekend plans canceled time after time to deal with another fire.

After the inauguration, we hoped that once again we could, like workers across the country, thank dog it was Friday. But late on the night of Friday, February 5, the Supreme Court released its decision in the case of South Bay United Pentecostal Church, et al v. Newsom* and granted an injunction to religious groups to ignore some of California’s restrictions on indoor, in-person religious services imposed by the state in the attempt to control the spread of COVID-19.

The decision passed down Friday night by a fractured 6 to 3 ruling (certain justices voted only to grant exemptions to certain restrictions) gave us a good view of how the Supreme Court is going to treat religious cases now that a clear majority of Christian supremacists is on the bench following the death of Justice Ruth Bader Ginsburg and the appointment of Justice Amy Coney Barrett.

And that view is scary as hell.

But the bad news didn’t end just with an unconstitutional and unjustifiable preference granted to religion. As Justice Elena Kagan pointed out in dissent, the majority also demonstrates a cavalier dismissal of science. And for all the issues the Center for Inquiry (CFI) works on, a Supreme Court seemingly committed to the promotion of religion and the relegation of science to an afterthought is a worrying one indeed.

Three sets of restrictions are at stake in the case. California prohibited all indoor religious services in “Tier One” areas—those parts of the state with the highest infection rates; it restricted indoor services in other areas by imposing a cap at 25 percent of capacity; and it banned singing and chanting in all indoor services. The Court voted 6 to 3 to prevent the enforcement of the ban on indoor services in “Tier One,” a designation that covers the majority of the state. Justices Neil Gorsuch, Clarence Thomas, and Samuel Alito would have gone further in their refusal to permit California to protect its citizens from a deadly disease, so for that small mercy, at least, we should be grateful.

After this decision, churches are permitted to hold indoor services across the state, regardless of the level of infection, up to 25 percent of their capacity. While the 25 percent limit and the ban on singing were permitted to stand, churches were invited to supply evidence that these restrictions were not being enforced equally and were instead being used to restrict churches, not other groups and businesses.

The preference for religion here is palpable. While the majority of the Court seeks to present these as restrictions that treat religious groups unfairly, while business more or less as usual continues for the rest of the state, this ignores the effort to which California has gone to group similar activities together and impose the smallest possible restrictions on each group—especially those involving constitutionally protected activities—consistent with the overarching goal of stopping the spread of the pandemic and saving lives.

According to the religious majority on the bench, religious services should be compared with grocery stores and other businesses allowed to remain open (at restricted capacities). To these justices, the spread of COVID-19 brought about by selecting your produce is the same as that brought about by praising Jesus, and so differing restrictions are prejudicial to religion.

But that’s not what California did. The stricter restrictions did not apply solely to religious gatherings. As Justice Kagan’s dissent makes clear, alongside religious services it includes political meetings (an activity also protected by the First Amendment); attendance at lectures, movies, plays, and concerts; and the hospitality industry. There has been no “picking on” religion here; instead, religious activity has been grouped with similar activities based on the types of interactions they generate and the length of time people are exposed to potential infection. This thoughtful determination by California is not just overruled by the Court’s majority; it is in effect ignored, and the state is accused of being anti-religious. Despite the slight references to Islamic and Jewish worship, we know it is Christianity that the majority is seeking to defend.

But it’s not just that the majority of the Court ignored California’s legitimate efforts to categorize activities based on their potential for harm. It did it by flagrantly dismissing the testimony of scientists—medical experts—about this danger. The state provided experts showing how shopping for groceries differed from church services in the amount of infection-carrying droplets to which those engaging in the activities were involved, and how employers were in a better position to implement prevention schemes (and the state better positioned to enforce such schemes) than churches were. While the pro-religious majority pointed to Hollywood being permitted to record music while hymns were banned as an example of prejudicial treatment of the faithful, it ignored the requirement by California that film production studios test their employees up to three times a week, something unfeasible for a church’s congregation.

The pandemic has already killed over 460,000 Americans. This decision by the Supreme Court makes it likely more will die unnecessarily. We are facing a Supreme Court that will, for the foreseeable future, privilege religion over and above people’s rights to health and safety. It is also a Court majority that, despite being made up of justices holding degrees in English literature, political science, and history, holds scientific evidence in contempt when it does not fit its predetermined outcome. That’s very, very scary as we move forward in a world of pandemics and climate change.

Note

* https://www.supremecourt.gov/opinions/20pdf/20a136_bq7c.pdf.