Justice Kagan Criticizes SCOTUS Decision to Lift California's Indoor Worship Ban Amid Pandemic

On Friday, a Supreme Court ruling lifted some restrictions that banned indoor worship services in California as the coronavirus pandemic continues. However, Associate Justice Elena Kagan penned a dissent that criticized the 6-3 decision.

The ban was lifted on indoor services for California's Tier 1 counties—those with widespread COVID-19 risks. Despite religious establishments being able to hold worship services during the pandemic, some restrictions are still in place, such as 25 percent capacity limits or bans on singing and chanting.

In a July 2020 Statewide Public Health Officer Order, the California Department of Public Health (CDPH) had said that places of worship, as well as gyms, protests, salons and more, would need to halt indoor operations if counties appeared on the CDPH's County Monitoring List for three days in a row.

In her opinion, Kagan—one of the three liberal justices on the bench, including Sonia Sotomayor and Stephen Breyer, who dissented—raised pandemic concerns, while criticizing some of the justices' arguments.

"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," she wrote.

Kagan continues to say that California's policies "treat worship just as favorably
as secular activities," which have the same risk of transmitting coronavirus.

"Under the Court's injunction, the State must instead treat worship services like secular activities that pose a much lesser danger," she wrote, saying that the mandate "risks worsening the pandemic."

Throughout her dissent, Kagan argued that restrictions placed on worship services had also been placed on secular activities that posed a similar risk, and that outdoor worship services have continued in the Golden State through winter, because the temperature is usually milder. She also stated that employers such as film studios had strict COVID guidelines in place that wouldn't be as feasible as for a religious congregation. She also questioned the court's understanding of the science that influenced the policies.

Kagan noted that creating COVID-19 policies is often difficult, and worried about the precedent that the court's decision has set.

"That task becomes harder still when officials must guess which restrictions this Court will choose to strike down. The Court injects uncertainty into an area where uncertainty has human costs," she explained.

Concluding her dissenting opinion, the justice said she hoped the decision won't "worsen the Nation's COVID crisis," showing disappointment that the Supreme Court didn't follow the science.

"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," Kagan wrote.

In his statement, Justice Neil Gorsuch pointed towards entertainment industry productions that have continued amid the pandemic showing an issue in California's decisions, raising questions about singing during religious services. "But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California's churches, synagogues, and mosques, something has gone seriously awry," he wrote.

Justice Amy Coney Barrett disagreed with the decision to keep the singing and chanting restrictions in place, also pointing towards entertainment productions. "[I]f a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral," she wrote.

In an emailed statement to Newsweek, Daniel Lopez, a press secretary for California Governor Gavin Newsom's office, wrote that the state will continue to enforce restrictions kept in place by the high court's decision.

"The state of California has taken necessary steps throughout the pandemic to protect Californians from COVID-19 and prevent our health care system from being overwhelmed by the disease, particularly during the recent surge. While the Supreme Court enjoined the state's restriction on indoor worship services in counties where COVID-19 is widespread, the Court left in place public health measures imposed to protect worshippers, their families, and the communities in which they live. We will continue to enforce the restrictions the Supreme Court left in place and, after reviewing the decision, we will issue revised guidelines for worship services to continue to protect the lives of Californians," Lopez wrote in a statement.

Newsweek reached out to the Supreme Court's Public Information Office for comment.

California Church Open
Demonstrators holding signs demanding their church to reopen, protest during a rally to re-open California and against Stay-At-Home directives on May 1, 2020 in San Diego, California. Sandy Huffaker / AFP/Getty