The wisdom literature of the Bible makes it clear that the Lord detests those who apply unfair standards. As it says in Proverbs 11:1, “The Lord detests dishonest scales but accurate weights find favor with him.” When Supreme Court justices apply the scales of justice, they ought to be impartial. Unfortunately, that has not happened when it comes to limitations on the free exercise of religion in the age of COVID-19.
The Church Suppressed
In the May 2020 case of South Bay United Pentecostal Church, et al. V. Gavin Newsom, Governor of California, et al., Justice John Roberts’ concurring opinion stated that it was not “indisputably clear” that the church had been discriminated against despite the governor allowing non-essential businesses to open at 50 percent capacity while limiting churches to 25 percent.
Justice Brett Kavanaugh’s dissent in the South Bay case raises a valid question: “…why can someone safely interact with a brave delivery woman but not with a stoic minister?” Unfortunately, the likely answer is one that depends not on any court of law but on the court of public opinion. At the time of the ruling, a poll covered by the Catholic magazine Crux indicated that most Americans were in favor of limiting in-person worship.
Unjust or Unpopular?
Formal logical reasoning teaches a concept known as an ad populum fallacy, which is when someone attempts to argue based on “source appealed to…popular opinion or common knowledge.” This exact line of flawed argumentation appears to have guided the Court’s opinion in this case of flagrant discrimination.
While it cannot be uniformly said that the Supreme Court always follows the opinions of the public, researchers at the London School of Economics, like Matthew E.K. Hall, suggest that the Court seems to follow popular opinion when it has to rely on external government agencies (like the state of California, in this case) to enforce its decisions.
What makes this opinion most worrisome is the fact that it has now established a precedent that is being used to limit the freedoms of churches in subsequent cases. This decision has also emboldened the state of California’s overreach of power, giving credibility to Governor Newsom’s recent ban on church services and in-home Bible studies as a response to surges in COVID-19.
Worst of all, the South Bay opinion has now made it so that other churches cannot petition for injunctive relief from similar limitations, despite the obvious violations of the free exercise of religion. In a failed pleading to the federal Supreme Court, the Nevadan church Calvary Chapel Dayton Valley petitioned the Court to grant injunctive relief since they were forbidden from hosting socially-distanced services while deeming it “acceptable for secular assemblies to occur at 50% capacity at casinos, restaurants, bars, gyms and fitness facilities, indoor and outdoor theme parks, bowling alleys, water parks, pools, arcades, and more.”
In this case, the lower courts cited Roberts’ concurrence in the South Bay opinion to deny the church its requested injunction.