The Court’s Religious Conservatives are Failing Church & State

In a decision issued during the relative quiet of a Friday evening, the Supreme Court’s conservative majority overturned California’s pandemic-related restrictions on private religious gatherings involving more than three households. They terminated the public health measure with what a U.S. Marine might describe as “extreme prejudice.”

The unsigned opinion took the Ninth Circuit Court of Appeals to task for its earlier decision upholding the restrictions. “This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s Covid restrictions on religious exercise,” the justices wrote. Their annoyance with those who might favor the public health over its need for close religious instruction is duly noted.

The argument backed by the court’s conservative majority was that California had treated secular activities like going to a hair salon more favorably than at-home religious exercise. Which is nonsense. You can split that hair ten ways from Sunday and still not arrive at a workable conclusion.

Justice Elena Kagan said as much in her dissent. “The law does not require that the state equally treat apples and watermelons,” she wrote, describing the difficulty of ranking the day-to-day activities of a diverse nation on the basis of constitutional necessity.

The reasonable standard to use in a public health emergency is our best understanding of how the contagion spreads. The vexing reality of the novel coronavirus that’s killed more than a half-million of our fellow citizens is religious gatherings have proven among its more efficient spreaders.

So the conservatives looking down at us from their high bench misunderstand public health.

Worse, they misunderstand religion. They’re viewing it as a public expression rather than a spiritual one. Two-thousand years ago Jesus offered a similar critique of the Pharisees.

Normally I wouldn’t presume to criticize someone else’s take on religion. It feels arrogant, and in so many ways humility is religion’s best quality. But I think we may need a Jesus-overturning-the-tables-and-chasing-the-money-changers-out-of-the-temple moment here.

Any religion that can’t figure out how to practice its faith safely in the midst of a pandemic is peddling something that doesn’t smell right.

Ask yourself this. If you were trapped alone on a desert island for a year would your faith wither and die? Or might the ordeal make your faith stronger? I can only answer for myself. A year of living like a hermit in a cave has not damaged my ability to freely exercise my religion. In fact, that sort of ascetic isolation has a long tradition among the world’s religions.

My faith is Christianity, so that’s the perspective I write from. But if you dig into most of the world’s great religions I think you’ll find the same concepts apply. Worshiping together is important, maybe even necessary over a longer time frame — as in, after we emerge from the pandemic. In my faith there is the great promise of Jesus found in Matthew 18: “Where two or three gather together in my name, there am I with them.” That’s beautiful. But it’s not the essence of the faith.

Religious texts and the U.S. Constitution are similar in that they’re full of contradictions. You run into trouble if you insist on literally interpreting some random passage as the sine que non of the entire document.

There’s an overarching wisdom required. You miss the point of the Christian Bible if you get too caught up in specific instructions or prohibitions and forget the central teaching to love God with all your heart and love your neighbor as yourself. You miss the point of the Constitution if you obsess over individual rights and forget it’s not really about you or me. It’s about We the People. That’s where the conservative justices missed the mark.

There isn’t any particularly deep theology or constitutional scholarship involved here. It’s the sort of stuff you learn in Sunday School and 8th grade civics. That’s why the ruling on private religious gatherings is disturbing, even if it’s not likely to bring on an immediate rush of Californians to hold church in their basement rec rooms. The justices managed to screw up public health, religion and the Constitution all in the same ruling.

I’ve written before that history is full of examples of people who’ve risen to the occasion when faced with the awesome responsibility of a seat on the high court, and become better jurists than anyone expected. I had hopes that might prove true of the conservative justices newly elevated by a transactional president with a sour taste for our nation and its democratic principles.

Maybe I was too optimistic. The New York Times reports the new ruling reflects a trend of the court taking a more narrow and dogmatic view on religious freedom cases since the appointment of Justice Amy Coney Barrett was rushed through in the dying days of the Trump administration.

This is not a good moment for the High Court’s judgement to be AWOL on such matters.

Much of the nation is seeing a fourth surge of Covid cases, driven by dangerous new variants of the virus. One of our two political parties has declared a sort of war on our democracy. Religion itself is having issues. According to new polling from Gallup the number of Americans who say they are members of a church, synagogue or mosque has fallen from 70 percent in 1999 to 47 percent last year. It’s unhelpful to have a the highest court in the land determined to make religion feel even smaller in the eyes of the public.

President Biden has set up a commission to study possible reforms to the Court, including expanding the number of justices. For those of us who care about our faith and our nation, it’s a timely move.