In the Name of Religion, a Majority on the Supreme Court Denies Science

On Friday, the Supreme Court blocked California’s public health ban on indoor religious services. Plaintiffs in South Bay United Pentecostal Church v. Newsom had challenged three pandemic-related restrictions on religious worship: a total ban on indoor services in areas where cases are surging; a 25 percent cap on indoor services where they are permitted; and a ban on singing and chanting during those services. In a 6-3 ruling, SCOTUS shot down the total ban on indoor services, but upheld the 25 percent cap and the singing ban. 

With COVID cases surging in California, Justice Kagan wrote a blistering dissent that was joined by Justices Sotomayor and Breyer. She highlighted the fact that it is possible that her colleagues’ decision will kill people (emphasis mine).

Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court displaces the judgments of experts about how to respond to a raging pandemic. … That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.

To state the obvious, judges do not know what scientists and public health experts do. So it is alarming that the Court second-guesses the judgments of expert officials, and displaces their conclusions with its own. In the worst public health crisis in a century, this foray into armchair epidemiology cannot end well.

I fervently hope that the Court’s intervention will not worsen the Nation’s COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life tenure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State’s pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict.

It is interesting that Justice Kagan wrote that dissent. We've seen Justice Sotomayor write several blistering dissents recently. But Kagan's role on the court has typically been to build bridges with conservative justices. Back when the Court was more balanced in 2013, Adam Winkler wrote that she might become "the most influential liberal justice," because "she’s not the Aggressive Progressive, but she could well be the next Earl Warren—a politically astute relationship-builder." That Kagan critiqued her colleagues so dramatically is a clear indication of how large the chasm has become.

Of course, religious conservatives hailed this decision as a win for religious freedom. But what Justices Roberts, Thomas, Alito, Gorsuch, Kavanaugh, and Barrett did was place the interests of religion over science. That is an extremely dangerous precedent. 

This isn't the first time that several of those Supreme Court Justices engaged in science denialism in favor of religion. In the Hobby Lobby case, where private companies objected to the Obamacare mandate to include birth control as part of their health insurance, this is what the plaintiffs asserted.

The Affordable Care Act says that employer-provided insurance must include essential health benefits, including all medically authorized forms of contraception. The owners of Hobby Lobby objected to this requirement, because they believe that four common forms of birth control—two versions of the “morning-after pill” and two kinds of intrauterine devices (IUDs)—are “abortifacients.” In other words, the owners of Hobby Lobby think these contraceptives end pregnancies rather than prevent them. And they believe that is tantamount to ending a life.

There are a lot of disturbing strands in that case, but the entire concern of the plaintiffs was based on a lie. Their belief is that life begins at fertilization and that the four forms of birth control prevent the implantation of a fertilized egg. But that is simply not true.

Nevertheless, Justice Alito—writing for the majority—affirmed the science denialism of the plaintiffs:

[W]e must decide whether the challenged…regulations substantially burden the exercise of religion, and we hold that they do. The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients.

Alito went on to write that these four contraception methods “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus." Alito didn't reach that conclusion out of ignorance of the science because, in a footnote, he acknowledged that Hobby Lobby’s religious-based assertions are contradicted by science-based federal regulations. Nevertheless, in a conflict between religion and science, religion wins. 

Perhaps this tells us why Justice Kagan is so alarmed by what she sees happening on this Supreme Court. Christian nationalists will be free to claim almost anything in the name of "religious freedom" and win the support of a majority on the Supreme Court. Science and facts be damned.