On Friday, the U.S. Supreme Court ruled 5-4 against San Diego’s South Bay United Pentecostal Church in its lawsuit against California Governor Gavin Newsom’s restriction limiting places of worship to meetings no larger than 25% of a building’s capacity or no more than 100 people, whichever is less. Tellingly, Newsom has not applied these restrictions on secular venues such as supermarkets, offices, and restaurants — none of which are listed in the First Amendment. This conflict has been a theme during lockdown.

Siding with the four liberal justices against the church, Chief Justice John Roberts contended, “Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.” Essentially, Roberts views church services as “nonessential” activities. So much for the right to peaceably assemble and freely exercise religion.

Rejecting assertions that Newsom’s order violates Californians’ First Amendment right to religious liberty, Roberts argued a rather tortuous “states rights” rationale for refusing to challenge the constitutionality of the order — and in so doing threw the Court’s credibility under the bus. Roberts lectured, “Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” In short, Roberts both hid behind a reticence to be an “activist” and appealed to that tired trope of “trusting the experts,” as if all experts are always in unanimous agreement, in order to avoid actually addressing the issue.

Writing for the dissent, Justice Brett Kavanaugh was unequivocal: “I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment. Absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.” Kavanaugh added, “The State cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

Finally, it has become increasingly clear that Roberts can’t be counted on to be constitutionally consistent, demonstrated by his chastisement of the conservative justices’ dissenting opinion. What is the job of the judiciary if it is not to judge whether the actions of an executive or the laws passed by legislators are in conformity to the Constitution?