Brett Kavanaugh

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Supreme Court justices are not singing the same religious liberty tune during pandemic

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Supreme Court justices are not singing the same religious liberty tune during pandemic

Legal battles over pandemic-era worship gatherings rage on.

Last October’s confirmation of Justice Amy Coney Barrett flipped the U.S. Supreme Court’s script on such questions.

The latest ruling came last Friday night: A 6-3 order stopped California’s ban on indoor worship in most of the nation’s most populous state. But the justices allowed a 25 percent capacity limit to remain.

Perhaps most interestingly, the majority said California can keep prohibiting singing and chanting. For now.

On the singing issue, the justices sang several different tunes:

• Chief Justice John Roberts: “The State has concluded … that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework.”

• Barrett, joined by Justice Brett Kavanaugh: “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral. But the record is uncertain. … (H)owever, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.”

• Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito: “California has sensibly expressed concern that singing may be a particularly potent way to transmit the disease. … But, on further inspection, the singing ban may not be what it first appears. It seems California’s powerful entertainment industry has won an exemption. So, once more, we appear to have a State playing favorites … expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.”


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Journalists should be gearing up for big 'culture war' cases at U.S. Supreme Court

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The COVID-19 emergency shouldn’t divert the media from getting prepared for an unusual pileup of big “culture war” news that will break at the U.S. Supreme Court during the weeks through early July.

Pending decisions the media will need to interpret involve abortion, religious conscience claims, gay and transgender rights, taxpayer aid for students at religious school and (yet again) religious objections to mandatory birth-control coverage under Obamacare. Next term, the court will take up the direct conflict between LGBTQ advocacy and religious conscience, an uber-important problem.

These cases will show us how the newest justices, Neil Gorsuch (age 52, seated 2017) and Brett Kavanaugh (age 55, seated 2018), will be reshaping court edicts on religio-cultural disputes.

Here are the imminent decisions to be ready for.

Espinoza v. Montana (docket #18-1195) — This regards the venerable “Blaine amendments” in many state constitutions that forbid religion-related aid by taxpayers. Does a state violate the U.S. Constitution’s “equal protection” clause if it denies generally available public scholarships to students who attend religious schools?

Little Sisters of the Poor v. Pennsylvania, incorporating Trump v. Pennsylvania (19-431) — Last week, the court heard arguments in this case involving claims of religious rights vs. women’s rights. Did a Trump administration setup properly exempt religious objectors from the Obamacare mandate that requires employers to arrange birth-control coverage?

June Medical Services v. Russo (18-1323) — Louisiana requires abortion doctors to have admitting privileges at nearby hospitals, which pro-choice advocates say hobbles women’s access to abortion. In 2016, a Supreme Court with different membership threw out such a regulation in Texas

Our Lady of Guadalupe School v. Morrissey-Berru, incorporating St. James School v. Biel (docket # 19-267) — The court heard the argument on this Monday via a COVID-era telephone conference. This Catholic school case from California poses whether under the Constitution’s religious freedom clause schools and agencies can discriminate in hiring workers who are not officially ordained “ministers” but may carry out some religious functions. In a similar Lutheran case in 2012, the high court said yes.


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Friday Five: Billy Graham rule, Marianne Williamson, nun's curveball, MZ's Kavanaugh book

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A famous steakhouse off Interstate 40 in Amarillo, Texas, offers a free, 72-ounce steak.

The only catch: You must eat it all in one setting.

On a reporting trip this week, I stopped there for lunch. Spoiler alert: I didn’t order the 4.5-pound hunk of beef. I chose something slightly smaller.

While I savor the delicious memories, let’s dive into the Friday Five:

1. Religion story of the week: This may not be the most important story of the week. In fact, veteran religion journalist G. Jeffrey MacDonald questioned on Twitter whether it’s news at all.

But I’m fascinated by the coverage of a little-known Mississippi gubernatorial candidate who invoked the “Billy Graham rule” in declining to allow a female journalist to shadow him for a day. I wrote about all the national media attention state Rep. Robert Foster has received — and the lack of details on Foster’s actual religious beliefs — in a post Thursday.


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U.S. Supreme Court launched a new church-and-state era last week. Follow-ups, please.

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“Of making many books there is no end,” complains the weary author of the Bible’s Book of Ecclesiastes. And there’s no end to lawyers making many lawsuits trying to learn what the U.S. Supreme Court thinks the Constitution means when it forbids “an establishment of religion” by government.

Journalists should provide follow-up analysis of a new era in “separation of church and state” launched June 20 with the Court’s decision to allow a century-old, 40-foot cross at a public war memorial in Maryland. Importantly, we can now assess new Justices Neil Gorsuch and Brett Kavanaugh, who filed separate opinions supporting the cross display.

Actually, the nine justices produced a patchwork of eight separate opinions, which demonstrates how unstable and confused church-state law is.

Ask your sources, but The Guy figures the Court lineup now has only two flat-out separationists, Ruth Bader Ginsburg (age 86) and Sonia Sotomayor. While Samuel Alito managed to assemble five votes for part of his opinion, his four fellow conservative justices are unable to unite on a legal theory. Stephen Breyer and Elena Kagan seem caught halfway between the two sides.

Federal courts have long followed the “Lemon test,” from a 1971 Court ruling of that name that outlawed public aid for secular coursework at religious schools. Chief Justice Warren Burger’s opinion devised three requirements to avoid “establishment,” that a law have a “secular” purpose, “neither advances nor inhibits religion” and doesn’t foster “excessive government entanglement with religion.”

Kavanaugh declared that the Court has now effectively abandoned Lemon in favor of a “history and tradition test,” which permits some cherished religious symbols and speech in government venues despite the “genuine and important” concern raised by dissenters.


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Buddhist vs. Muslim: Journalists ask why SCOTUS intervened in one death penalty case, not another

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“Journalists really need to follow up on this crucial religious-liberty case,” our own tmatt wrote in February after the U.S. Supreme Court allowed the execution of a Muslim inmate. The big issue in that case was Alabama inmate Domineque Ray’s execution without a spiritual leader from his own faith at his side.

But last week, the high court granted a rare stay of execution for a Texas inmate as he was waiting in the death chamber. Justices ruled that the refusal of Texas to allow a Buddhist spiritual adviser to be present violated Patrick Murphy’s freedom of religion.

Wait, what gives?

Why let one inmate die and another live in such similar cases?

Such questions sound like perfect pegs for inquisitive journalists.

Speaking of which …

Robert Barnes, the Washington Post’s veteran Supreme Court reporter, points to the court’s newest justice:

It’s difficult to say with certainty why the Supreme Court on Thursday night stopped the execution of a Buddhist inmate in Texas because he was not allowed a spiritual adviser by his side, when last month it approved the execution of a Muslim inmate in Alabama under almost the exact circumstances.

But the obvious place to start is new Justice Brett M. Kavanaugh, who seemed to have a change of heart.

Kavanaugh on Thursday was the only justice to spell out his reasoning: Texas could not execute Patrick Murphy without his Buddhist adviser in the room because it allows Christian and Muslim inmates to have religious leaders by their sides.

“In my view, the Constitution prohibits such denominational discrimination,” Kavanaugh wrote.

But Kavanaugh was on the other side last month when Justice Elena Kagan and three other justices declared “profoundly wrong” Alabama’s decision to turn down Muslim Domineque Ray’s request for an imam to be at his execution, making available only a Christian chaplain.

“That treatment goes against the Establishment Clause’s core principle of denominational neutrality,” Kagan wrote then.

Keep reading, and the Post notes differences in how the inmates’ attorneys made their arguments:


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Friday Five: Matt from Walmart, pope vote, icky details, execution reprieve, butts and bagels

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Hey Godbeat friends, can we please get a faith angle on Matt from Walmart — and pronto?

I kid. I kid. Well, mostly.

I heard about “How a dude named Matt at an Omaha Walmart went viral” via a tweet by Mary (Rezac) Farrow, a writer for Catholic News Agency. She described the Omaha World-Herald story as her “favorite piece of journalism” she’s read in a while.

After clicking the link, here’s my response: Amen!

Now, let’s dive into the Friday Five:

. Religion story of the week: We are blessed here at GetReligion to have religion writing legends such as Richard Ostling on our team of contributors.

Ostling’s post this week “Down memory lane: A brief history of Catholic leaks that made news” is a typical example of his exceptional insight.

The news peg for the post is Vatican correspondent Gerard O’Connell’s recent scoop in America magazine on the precise number of votes for all 22 candidates on the first ballot when the College of Cardinals elected Pope Francis in 2013. Ostling offers praise, too, for Washington Post religion writer Michelle Boorstein’s coverage of the story.


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Monday Mix: Get out the (faith) vote, clergy sex ramifications, Booker preaches, Catholic SCOTUS

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Welcome to another edition of the Monday Mix, where we focus on headlines and insights you might have missed from the weekend and late in the week.

The fine print: Just because we include a headline here doesn't mean we won't offer additional analysis in a different post, particularly if it's a major story. In fact, if you read a piece linked here and have questions or concerns that we might address, please don't hesitate to comment below or tweet us at @GetReligion. The goal here is to point at important news and say, "Hey, look at this."

Three weekend reads

1. "I believe in Jesus Christ AND I believe in liberal progressive values." NPR’s Jerome Socolovsky reports on faith groups working to get out the vote for the midterm elections.

The story features a progressive seminary whose leaders feel “called in the Trump era to motivate young voters.” No surprise, we’re talking about the Episcopalians.

In the heart of the Virginia Theological Seminary campus, a pub named after the year the flagship Episcopal seminary was established — 1823 — recently hosted a get-out-the-vote event.

The seminary registrar, Rachel Holm, was in the pub, driving home the importance of these midterms elections to the mostly 20- and 30-somethings in the crowd, and livening it up with a game of election trivia.

"So, what are the three topics millennial voters care about most when voting?" she asked.

"Themselves, themselves, themselves!' one of them shouted, as the others erupted in laughter.

Then, joking aside, Holm told them to make sure they understood the requirements for registering to vote in Virginia.

2. "Our people still do believe in God. But they don't believe in us." Wall Street Journal religion writer Ian Lovett tackles the response of parishioners to the ongoing Catholic clergy sex abuse scandal.


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Friday Five: Kavanaugh and more Kavanaugh, historic church closing, Indonesia quake, baseball

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As The Associated Press reports, the U.S. Senate voted 51-49 today to move forward with consideration of President Donald Trump’s Supreme Court nominee, Judge Brett Kavanaugh.

That means a final vote on Kavanaugh’s confirmation could occur over the weekend, the AP notes.

Once again this week, the battle over the court’s future — riveted by Christine Blasey Ford’s sexual assault allegation against the judge — had plenty of religion angles.

Look for much more on that as we dive into the Friday Five:

1. Religion story of the week: Speaking of Kavanaugh, Washington Post religion writer Michelle Boorstein has an interesting piece out today on how the fight over the judge is dividing his Catholic Church in D.C.

Another compelling angle from a Godbeat pro: The Atlantic’s Emma Green explores why some conservative women are angry about the treatment of Kavanaugh.

Other coverage that we’ve mentioned at GetReligion include Religion News Service’s focus on the Religious Left response to Kavanaugh and how an Oklahoma pastor’s sermon of Kavanaugh gained him not-so-positive notoriety.


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RNS: Religious Left rallies to stop Kavanaugh. Religious Right sitting this one out?

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Let’s have a short religion-beat test.

When a story is built on media contacts with the United Church of Christ and the Unitarian Universalists, you are really with what part of the cultural and doctrinal part of the marketplace of American religion?

(Cue the think music)

I see that hand on a religion-news desk! These are outspoken churches on the Religious Left. The United Church of Christ is the elite flock that was home to President Barack Obama.

Now, would you be surprised to find out, on cultural issues, group’s such as the National Council of Churches, the National Council of Jewish Women and Muslim networks linked to the pink-hat Women’s March hail from the same basic zip code, in terms of moral, social and religious issues?

Now, what else do these groups have in common? Well, they are all, to be blunt, they are all tiny, in terms of the size of their flocks. However, they have lots of connections in the media-rich Acela Zone between Washington, D.C., and New York City. Odds are, when you see headlines that say “Religious groups” gather to protest this, that or the other, you are talking about these groups, often accompanied by progressive Catholic nuns dressed in pant suits.

What’s my point? Well, it is not that reporters should avoid covering them. GetReligion has been calling for increased coverage of the Religious Left — especially on religious issues, not just political issues — since we went online in 2004.

No, liberal believers matter. However, experienced reporters know that these groups are small and that portraying them as diverse, influential groups that represent mainline Christianity is, well, just about as fair as saying First Baptist Church, Dallas, and Liberty University are perfect voices for all of American evangelicalism.

That brings us to a very normal Religion News Service story with this headline: “After Senate clash, Kavanaugh nomination an occasion for prayer.” The overture:


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