After re-reading Kavanaugh’s concurrence in Roman Catholic Diocese v. Cuomo, I see it’s going to take a re-evaluation on his part if the Court is to uphold public health measures in CA, NJ & KY. 1/10 https://twitter.com/stevenmazie/status/1333543785113001985

While I would hope that Kav & others would be more hesitant to meddle with state-level measures as covid reaches crisis levels in those places and elsewhere, I’m not confident they will. 2/10

Kavanaugh is more measured than Gorsuch and acknowledges that even severe restrictions on church attendance could be justified — but says that as long as just *one* secular venue is open while churches are closed, the state is violating free exercise. 3/10

In its most restrictive zones, California closes not only houses of worship but movie theaters, museums, restaurants, bars, gyms and more. But it does leave essential businesses open with restrictions. 4/10

That may be enough to doom California’s rules in Kavanaugh’s eyes. 5/10

But stores like these are places to enter, do business and leave. They are not gathering spots where people sit congregated for hours speaking and singing together. It baffles me that some justices do not see the difference, which public-health experts keep highlighting. 6/10

Kavanaugh slips up on this point in his concurrence, calling the venues that are open “secular gatherings”. Here’s the thing: buying eggs at a grocery store or picking up dog food at a pet store is not partaking in a “secular gathering“. 7/10

Imagine the implications of Kavanaugh‘s rule, and keep in mind it’s the most reasonable one conveyed last week: if a state wants to bar in-person religious services, it must shutter every grocery store in the state. No praying? Ok then: no eating. 8/10

This is, of course, ludicrous. The Supreme Court is not always at its wisest when it is handling emergency applications like these. The briefing is limited, there is no oral argument, and there is little time to respond. 9/10

But the Court has a chance now to come to its senses & adopt a rule that permits states to take appropriate, scientifically backed measures to fight an increasingly deadly pandemic without violating religious liberty. We will soon see whether it is willing to do that. 10/10