Chief Justice Roberts now sits as the swing vote on the United States Supreme Court, between four liberal and four very conservative justices. Roberts is only “conservative.” But that was enough this week in a case reviewing the constitutionality of Governor Newsom’s prohibition against opening up churches in the state of California.

The issue before the court was whether churches were more like a trip to the grocery store, or more like a concert with people packed-in, and whether any First Amendment issues arose around the order. Because if church services were more like the grocery stores, and pharmacies – the secular things open, then it was “discriminatory,” but if more like “concerts,” and such, it was not.

Roberts joined the four liberals, none of whom had a problem finding that the order didn’t violate the First Amendment, because it applied to all kinds of non-spiritual places such as movies, sports events, concerts, and lots of other things where people gather together for an hour or two at a time, talking and breathing deeply like singing or yelling. It wasn’t specific to religious services.

But Justice Kavanaugh was there to do his job and the Heritage Foundation’s bidding, and he blasted the majority’s decision, a review of which is brought to us by Rawstory, breaking down an analysis by Mark Joseph Stern wrote for Slate:

By contrast, wrote Stern, “Kavanaugh crafted a narrative of invidious religious discrimination. His dissent reads like a brief by the church, not a judicial opinion. Kavanaugh alleged that Newsom’s order ‘indisputably discriminates against religion’ in violation of the free exercise clause. For support, the justice insisted that ‘comparable secular businesses,’ like grocery stores and pharmacies, ‘are not subject’ to the same restrictions imposed on churches. California must have a ‘compelling justification’ for this disparate treatment, and he saw none.”

But court-watchers like Stern saw a big flashing sleight of hand in Kavanaugh’s dissent, noting that Kavanaugh never really got around to the real issue, and that was that many other “secular” meetings were limited, too – such as concerts, movies, and sports events.

“What is genuinely shocking about Kavanaugh’s dissent is that he does not even address this question,” wrote Stern. “The dispute lies at the heart of the case, and Kavanaugh ignores it. He simply takes it as a given that churches are ‘comparable’ to grocery stores when it comes to risk of spreading COVID-19. By warping the facts, Kavanaugh paints California’s rules as irrationally discriminatory, when in fact they are based on medical advice Newsom has right now.”

That sounds like a guy who would lie about his calendars and what having “Skis” with boys means.

Roberts took a “clear swipe at Kavanaugh” in his opinion, writing: “The notion that it is ‘indisputably clear’ that the Government’s limitations are unconstitutional seems quite improbable.”

“Quite improbable” on a strong statement like “indisputably clear,” is about as close to a slap as one’s going to get in from a SCOTUS decision. It comes awfully close to sounding like “laughable.” The real point is that this was supposed to be a cakewalk for the newfound conservative majority, one that Trump sure wanted. It involved churches against California! But Roberts stepped up and took it away. Let’s hope that it’s a sign of things to come and belies further divisions which might surely help us.

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Peace, y’all

Jason

[email protected] and on Twitter @MiciakZoom