Unmasking Religious Freedom by Facing the (Church) Music

In a seemingly confusing case involving six separate opinions, the Supreme Court late Friday night invalidated some of California Governor Gavin Newsom’s emergency COVID-19 restrictions concerning houses of worship. Doing so should have followed readily upon December’s Diocese of Brooklyn case, which struck down Governor Andrew Cuomo’s arbitrary and discriminatory church and synagogue restrictions in New York.  

As a result, Californians may now attend indoor church services and they are no longer the only American citizens whose state denied them that routine practice in the name of battling COVID-19. Whether and to what extent houses of worship may be restricted in numbers of attendees is still not completely settled in California and, for the time being, a ban on singing in church is still in place.

In sum, Chief Justice John Roberts struck down the prohibition on indoor services but left open the possibility of allowing California’s other regulations on houses of worship. Justices Neil Gorsuch, Clarence Thomas, and (with delays) Justice Samuel Alito would have invalidated all such limits. The newest justices, Amy Coney Barrett and Brett Kavanaugh, agreed, except on the music question. Barrett in her concurring opinion thought the facts were unclear on whether churches were being denied a right that the entertainment industry possessed. 

Kagan’s Selective Restraint

Justice Elena Kagan’s dissent trashed the majority for discarding the “science” of the public health bureaucracy in favor of their amateur judgment. Once the full sweep of her dissent is understood, the relative weakness of the conservative majority’s arguments becomes apparent. They missed an opportunity to make the decisive argument against the COVID-19 regulatory regime altogether. 

First, Kagan’s remarkably revealing dissent would demolish all barriers to arbitrary bureaucratic power, as long as it ruled in the name of “science.” In previous religious freedom cases, she has sometimes tried to strike a sober balance. More recently, though, her dissents have taken on a tone of shrieking prophecy, devising horrible examples of where the majority’s opinion might lead.  

Moreover, Kagan’s submission to “science” (viz. the scientific bureaucracy) is magnified by the most flattering obeisance to judicial modesty posed in the last few decades:  “. . . 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.” Even judges should not presume authority over the white coats

To this, the chief justice wryly responded, “. . . the Constitution also entrusts the protection of the people’s rights to the Judiciary—not despite judges being shielded by life tenure, but because they are. Deference, though broad, has its limits.”

In the California case, Kagan worships “science,” which, however, is the bull of bureaucracy that claims the authority of science. This is a familiar tale of the first philosophers of modern science, such as Francis Bacon, who gave absolute power to scientists in his utopian political order. 

In fact, the political face of modern science, with its Promethean claims, has been tyranny, in which all variables are controlled. Science subsumes the power of revealed religion, thus promising immortality. Besides these philosophic premises, Kagan adopts the Left’s crabbed view of religious freedom as well.

“We have held time and again that the First Amendment demands ‘neutrality’ in actions affecting religion,” she writes. She may as well have said the First Amendment (the rest of it) demands “neutrality” in free speech. It is at least as absurd. Despite its best efforts, leftist jurisprudence of the past 50 years cannot so easily discard the American political tradition of religious freedom, or of free speech either. The First Amendment as a whole exists to protect such central freedoms, which have an inner unity.

Misunderstanding Liberty

Americans do not have religious liberty because we have secular liberty. We have liberty plain and simple, grounded on the liberty of natural rights and the duty of natural law. In linking property rights with the pursuit of happiness in full, Madison declared, “as a man is said to have a right to his property, he may be equally said to have a property in his rights.”  The clearest threat to rights is to property in land or wealth; threats to the conscience or intellect may take longer to perceive. 

Kagan now seems willing to narrow religious freedom to “freedom of worship”—which exists within the walls of a church or other house of worship. But in California, even freedom of worship is at the mercy of “science” and the regulatory mentality. That is the significance of Newsom’s prohibiting indoor worship (or other activity) inside a church. It is also at the heart of his prohibition on singing.

Against such an ominous opinion, more firepower might have been expected from the fractured majority. Once again, as he had at least twice before, as in the Diocese of Brooklyn decision, Justice Gorsuch brought some heat. In his immediate analysis of the opinion, Professor Josh Blackman finds nine points in the Gorsuch argument.  He singles out Gorsuch’s criticism of the district courts for not having “followed the extensive guidance this Court already gave.”  

Finally, Gorsuch takes up the flat ban on singing. California should have allowed accommodations: “Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.” 

Some congregations might be satisfied with hearing a recording, but St. Augustine made the argument for singing as a part of worship and not merely as mood music: “Singing is what the people of God do in God’s presence.” And: “To sing is to pray twice.”  

It Doesn’t Take a Miracle

Despite the disagreements among the six justices in the majority, they all agree that the touting of California’s experts about its “mild climate” should not suffice to permit this interference with religious freedom, under the auspices of a now nearly year-long “emergency.” One southern California friend of mine reports the following Christmas Day Mass experience: 

We had outdoor Mass yesterday . . . in a wind and rainstorm 😅. It was quite an experience to watch trash cans blowing by as the altar cloth blew up into the priest’s face during the homily. If COVID doesn’t get everyone, perhaps they are hoping for regular pneumonia to do the trick? The rain stopped at the end of the Mass, however, and the sun peeped out just long enough to give us a rainbow before the blessing. A Christmas like no other. 

As terrible a contagion as COVID-19 is, it should not require miracles to get people to see how diseased a country we have if we cannot restrict arbitrary, willful political power.  The people might start it in California, which has given birth to other powerful trends.

About Ken Masugi

Ken Masugi, Ph.D., is a senior fellow of the Claremont Institute. He has been a speechwriter for two cabinet members, and a special assistant for Clarence Thomas when he was chairman of the Equal Employment Opportunity Commission. Masugi is co-author, editor, or co-editor of 10 books on American politics. He has taught at the U.S. Air Force Academy, where he was Olin Distinguished Visiting Professor; James Madison College of Michigan State University; the Ashbrook Center of Ashland University; and Princeton University.

Photo: Jessica Christian/The San Francisco Chronicle via Getty Images

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