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Supreme Court rightly allows the states to combat the coronavirus

Supreme Court rightly allows the states to combat the coronavirus
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The Supreme Court term is over, but the work of the justices continues. A majority has declined an invitation to overturn coronavirus restrictions for Nevada because they allegedly violate the First Amendment commitment to the free exercise of religion. This was the second such call over the last month. With the end of the pandemic nowhere in sight, the justices could likely face more calls such as these over the summer, as the states seek to wring what they can from meager precedents. While some may see these decisions as political, they are really about the separation of powers.

In both South Bay United Pentecostal Church versus Gavin Newsom and Calvary Chapel Dayton Valley versus Steve Sisolak, the denial of relief by the Supreme Court came without explanation. But in the South Bay case, Chief Justice John Roberts, who joined the majority, wrote separately the public health crisis facing the nation is sufficiently serious that unelected federal judges who do not have the important “background, competence, and expertise” should not second guess state efforts to address this.

Writing in his Calvary Chapel dissent, Justice Brett Kavanaugh held that “the restaurants and supermarkets at issue in South Bay, and especially the restaurants, pose similar health risks to socially distanced religious services in terms of proximity to others and duration of visit.” He noted that he also suspects that “many who have frequented all three kinds of establishments in recent weeks and months would agree” and observed that, even with the precedent for South Bay, “this case is much different because it involved bars, casinos, and gyms.” Is it really different?

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While it might make sense for a state to limit access to bars, casinos, and gyms, that is not the issue. The issue is whether a state could reasonably conclude that places of worship pose a greater risk to public health and safety than those businesses. It is a question that, as the dissenters have noted, needs to be informed by the latest public health information.

The question should turn on the understanding of the Nevada governor of the latest science. The people elected him to make decisions about public health and safety, for which there may be some reasonable disagreement. A state governor, like the chief justice argued in South Bay, is accountable to the people in a way that federal judges are not. The Framers envisioned such decisions falling to elected state leaders, since public safety is not a responsibility assigned to the federal judiciary in the Constitution.

The courts should indeed act to prevent overt discrimination against the free exercise of religion. But Calvary Chapel is not such a case. In light of how we know the coronavirus spreads, the governor did not discriminate against religion in trying to limit the greater risk created when individuals are indoors with one another and there is little movement over time, even when socially distanced, as in religious services and those other similarly regulated circumstances, such as museums, trade schools, and places in which the movement of people and air over time might be limited.

It might be possible for places of worship to hold religious services safely. But this is not the point. It remains that, regardless of how much more we know about the coronavirus than we did even a few months ago, there is still no known treatment or vaccine, and the disease continues to spread, with more than 160,000 deaths in the nation. There is no problem with a governor acting in the face of such facts, if restrictions do not single out religious services or other protected interests for certain treatment.

As the economist Branko Milanovic has observed this summer, you cannot combat a problem with an “extremely high externality,” such as the spread of any infectious disease, “by letting people make free decisions based on the estimate of their own welfare only.” That is the reality which most state leaders, such as the Nevada governor, have had to acknowledge, however imperfectly, and which the Supreme Court has done well to respect.

Lawrence Friedman is a professor at New England Law in Boston, where he teaches constitutional law. He is the author of “Modern Constitutional Law.”