Here, the California order doesn't ban going to church, it places additional building capacity and total attendance limits.
There are complications though -- the longer these emergency orders drag on, the more skeptical we should be. They should be reviewed frequently, enforced moderately, and lifted promptly along with other similar activities. Surely it would turn into disrespecting the right if ballparks and concerts reopen first.
Another complication is the idea of protests. While limiting the capacity of a church doesn't completely deny religious services; limiting protests strikes more at the heart of the first amendment and our ability to challenge decisions at all.
The closing of gun stores is also problematic. It seems many gun stores in California have been ordered completely closed (not sure about state/county/city status), when other retail establishments remain open. A farmers market near my house is offering pony rides, the Starbucks and the Baskin Robbins are open, as are liquor stores and probably dispensaries. I think there is a real Constitutional issue there, and if it makes it to SCOTUS I would expect an injunction allowing gun stores to remain open.
I read the decision granting the injunction, and wow. The ID requirements are even higher than for buying a gun -- you need certain kinds of ID that proves that you are a citizen (passports can take a long time to get, and some people have complications with their birth certificate). For those who were able to provide such an ID, the background check falsely rejected 16% of applicants, amounting to over 100K people.
I really think that people would be more willing to compromise if they felt that their rights were respected. But what a lot of people don't realize is how outright hostile these gun control laws are. They are meant to penalize and annoy gun owners, not provide safety.
Another example is the handgun roster in California, where you can only buy certain models that were approved before 2013. They aren't safer, they just made the new standards infeasible to meet, so no more models are approved. This doesn't help anyone, unless you think annoying gun owners is a worthwhile goal.
If black powder and shot for a muzzle loader are available, has your right been abridged? Is it merely that you as a fully unprepared militiaman are inconvenienced? Does that mean that if you're late for a TV interview, zoom meeting, or tweetstorm you're free to drive through traffic lights in pursuit of the 1st amendment?
In practice, the courts take dim view on such arguments, and if some element is required to practically exercise a right, it is usually protected under that right.
If you want to talk about the press, and having rights abridged by not having ink then you better actually be in the business of printing (or maybe a potential member of a well regulated militia?). Waiting periods have been deemed perfectly constitutional so it's a lot harder to argue that those so horrifically unprepared and unwilling to wait for their mail order ammo (yep that's legal!) to be delivered are really having rights infringed more than my free speech is being infringed by being forced to wear a shirt and shoes (or even pants) to be served food.
Your idea has been deemed dangerous by the internet police, and your ISP connection will be cancelled. Don't worry, you are still free to write a letter to your local newspaper, so your rights have not been infringed.
Our rights are naturally extended with technological advances in the same spirit. Demanding cell tower records is considered a "search" and twitter is "the press".
It seems to me that very frequently, people declare something to be completely different just because it uses new technology. And then people argue if it really is different or not. There's never an airtight proof of who is right.
A saying that I think I may have first seen on HN is something about quantity having a quality all its own. E.g. maybe at some point from a musket to a rifle to a machine gun to a bazooka to a nuke, there is a line to be drawn.
In California, you can lend a firearm to other people who have a firearms safety certificate for up to 30 days, civil unrest not required, and the rules are looser for family members out to grandparents/grandchildren. In the event of some imminent need due to civil unrest, the general criminal defense of necessity, which is recognized in California law, would be available even if the loan was otherwise prohibited.
The state’s gun laws must be too loose if the firearms fetishists have to keep inventing fake restrictions to campaign against.
Maybe before you go around calling names it would be beneficial to do some research of your own? I'll give you benefit of the doubt and assume that your knowledge of CA firearms laws is outdated as opposed to being maliciously incorrect:
Years ago you could lend guns to anyone with an FSC or HSC for <30 days. However the powers that be decided that this was a "loophole" and banned all loans to non-relatives. These are not "fake restrictions", you can verify them on the state of California's own website
edit: as mentioned below, it's still legal to let a non-owner handle a firearm as long as the original owner is constantly present and supervising. So sharing on a trip to the range is legal, but letting someone take a gun home afterwards is not.
: Law which amended PC § 27880 to ban nonfamilial loans: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...
False; see PC § 27885:
To give some idea of how complex firearm law is in California, take a peak at the 141 page document below (current as of 2019) covering “just” the state’s penal code:
False; see PC § 27885:
I think most people's definition of "loan" isn't limited to the loaner having to be right there for the duration. That's like a library "loaning" a book but forbidding you from taking it out of the librarian's view. In practical terms, it bans loans.
"Ammunition and accessories only
No firearm registrations."
Sepration of Church and state is a two way road,you can't be ok with this and then have a problem with sharia law and honor killings. If religious law cannot force governmental law to accept a contradicting outcome that is acceptable only because the government in turn is restricted from telling religious organizations how to conduct their affairs. If this is a public health concern, rules must be established for everyone with no exceptions. If there are exceptions, religious organizations get priority because they are specifically protected along with freedom of speech and aseembly as the first right of the people.
Let me spin it a bit for you due to all the riots and protests that are happening, majority (most?all?) Gatherings to plan and mobilize civil rights movement protests happened in protected Church assemblies (people sometimes like to conveniently excluse MLK's tile of Reverend). Today it's a virus, next month a terrorist attack, maybe then an enemy invasion and natural disaster. I understand this opinion will be unpopular here but you must understand OUR equal application of rights has no exception. Period. For example,You can say freedom of speech can't apply if you're shouting "fire in a crowd", but you can't say Jack can shout fire but Christian Emily can't. It's not just because Emily is being picked on for being religious,but also because she's a person guaranteed equal treatment.
I am, and I do.
This is an egregiously hyperbolic argument. Perhaps you, personally, are unable to make the distinction, but most people are perfectly able to distinguish between a temporary restriction to stop a virus spreading and literal murder.
Your argument is logically equivalent to saying “if you support building codes that ensure churches have fire exits, then you also support sharia law and honor killings”
Fire exits don't prohibit free excercise of religion.
The government's authority to say "actual murder" as you put it (by the way, is capital punishment murder? Because honor killings are capital punishment under a different law.) is wrong is legitimate only because they honor the rights of the governed, a critical and primary right being the right to assemble, freedom of religion and equal application of the law,especially to a group explicitly protected.
> I am, and I do.
Of course you do, because you perhaps forget many wars were fought over this subject. It's not optional. If you believe that way then do you also believe neo-nazis should be shot on sight for displaying a swastika? But burning a swastika is illegal? Of course not, you allow both because both are protected. But I can tell you, the day they ban burning swastikas would be the day people line up to shoot neo-nazis. I make the hyperbolic comparisons for a reason. The extremes start small. Let us not take peace and freedom for granted.
I am not saying Church services should be allowed. I am saying when you do ease restrictions, do it equally! Bases on building capacity and ventillation among other factors not "Churches". If that's ok then let's do the same by saying "black people can only assemble at 25% capacity because of covid death rate in the black community". There is a reason this basic rights exist. You treat them as suggestions and act surprised when the country is falling apart.
If responsibilities are not optional, rights are not optional.
I'm definitely against anyone being able to give up their rights to escalate to the regular court system, but as far as I know that only exists in secular arbitration which has a specific law addressing that.
This idea that democracies exist in acknowledgement of God and derive legitimacy not simply because they represent the people's will but because they protect the people's God-given rights(even for the minority) was well accepted well into the past century. Some even reallized how the atheistic views of communism is incompatible with democracy.
Even moving past independence, could Abraham Lincoln have made the argument that slavery must be abolished due to "all people are created equal" if he was a communist ? That argument was relevant because it was once again the government taking away people's God-given rights.
If you wonder why your rights are treated so cheaply and all the freedom you have is fading so rapidly is because no one,not the government,not the majority of people or the few that fight for rights acknowledge that the foundation of these fundamental rights is God's authority, that a government and a country while sovreign relative to other countries,there is only absolute sovreign from whom all authority and rights are derived. But going back to what you said, the fundamental rights might as well be fiction to the legal system and SCOTUS,the constitution itself is the document they think is "a living document" they can interpret as they see fit without regard to where absolute rights and liberties originate.
And yes, it is hard to argue for universal human rights without some sort of transcendental argument that there is something special and universal about humanity. As Solzhenitsyn says, the main problem with communism is they've forgotten God.
Why would anybody need a gun right now while their biggest life treat is a virus?
Please lord more riots with more people having guns would be a plead from Anders Breivik. Does that guy have internet these days?
Since you asked, the right to keep and bear arms includes the ability of ellegible people to buy them, along with ammunition, and make use of practice/training facilities.
Part of having a right means you don't need to explain it to anyone else. You can exercise your right, and if someone is curious why you did what you did (past tense), then you can choose to explain it to them. Nobody gets to ask "why" as a condition of exercising a right; otherwise it's not a right, it's a privilege.
How am I supposed to bear arms if I can't obtain arms? I think it's fairly reasonable to close gun shops if all other stores are closed, but there's no reason not to allow gun shops to open under the same terms as other shops. Maybe pickup / curbside only, maybe strict simultaneous customer limits, whatever.
> Why would anybody need a gun right now while their biggest life treat is a virus?
I personally don't think more guns help to deescalate situations, but there's like a lot of unrest, and some people think guns can be used to protect themselves from rioters, riot police, instigators, or some combination of the three.
After a bit of googling I see that gun stores are indeed allowed to provide for curbside pickup and are open:
A few genuinely curious questions.
First, would you rather there was just no 2nd Amendment at all? I can understand that point of view.
Second, let's assume there is a right to bear arms, and that it's not going away. Do you think all of the little half measures are actually helpful? Stuff like how you can buy ammo, or what models of guns are acceptable, or what kind of grip or stock a rifle can have?
Third: rifles. Not many killings happen with rifles. They are lower than knives, and behind even fists/feet, even in states with very permissive rifle laws. What do you think about removing pretty much all restrictions on rifles (and accessories, including suppressors), and instead restricting pistols more heavily?
 For most rifles, a normal suppressor just reduces the sound from "instant permanent hearing damage" to "louder than a jackhammer and you still probably want hearing protection".
I think currently stronger background checks, strong penalties for selling guns outside of this and bans of large magazines and ways of reloading quickly.
I would support some way of limiting open arms in public places, I do not think they belong in demonstrations or Subway stores and are often used to intimidate.
I'm personally mostly OK with rifles, except automatic rifles with large capacity magazine. If you have a hunting rifle and it can be traced back to you, please have your fun.
The parts I feel strongly about are strict background checks, weapons can be traced back, and should not be used for intimidation in protests. The rest are details and I am sure we can come to an agreement.
In the weapon culture I come from if you point a weapon at someone, loaded or not, your are assumed to be hostile or an idiot that should not have a gun and will be met with extreme force.
You mean semi-auto or fully-auto?
I ask because many states in the stats I offered allow pretty much any semi-auto rifle to eligible people with little restriction, and the deaths are still lower than knives/fists. While I agree that some rifles are scary, the data just don't seem to justify restrictions on semi-auto rifles regardless of magazines.
I think all states have laws against brandishing or threatening people with any weapon.
I generally agree about background checks, but some laws are pretty extreme, where it prevents reasonable sharing, and I don't agree with that.
I am not aware of any real problems with open carry demonstrations other than they make people uncomfortable. That doesn't seem like a great reason to pass a law, but I don't see a big problem having a law like that in city limits. You need ways to allow people to legally transport though, which should include walking.
I think we mostly agree about everything except on the margins.
No full auto for sure, semi? I don't really know. As a soldier I never used full auto in training or in action other than for the memes. It is just not a reasonable way to spend your ammo and aim well.
The issue with rifles is not really that the stats show they are dangerous but the potential they have for example in school shootings so if possible I would prefer to keep them out of the hands of civilians. Perhaps banning them is too much and instead strict background checks.
As for sharing, I don't really know enough about it. There would need to be background checks for that person as well as if they would buy the weapon I suppose? Perhaps some minor way of tracking this, should be possible now that we have Internet. Weapons should be handled with care, if you have to take 5 min to share it I am OK with that.
Genuine question since I see this argument online with some regularity. Why don't you think the 2A belongs in a modern world? What does the time frame (modern vs not modern) have to do with human rights?
The forgotten premise of the 2A is that it would prevent tyranny by providing the tools so that the citizenry could demand that the government not form permanent external or internal security services beyond what was necessary for a minimal tripwire and training cadre force that would form the nucleus of an at-need force that would be sized up as situations presented with the militia and it's privately-owned arms. Liberty wasn't guaranteed by permitting the general citizeney arms to fight the central government at need, but by providing the tools so that the citizens could use the government to meet their security needs while keeping the general citizenry and not a distinct and separate peofessional warrior group as the necessary and essential component of the government providing that function.
The development of standing armies scaled to fight major wars rather than serve as tripwire and cadre forces, professional paramilitary law enforcement services, the professionalization of not just standing military forces but even the ready reserves, culminating in the all-volunteer force, have all rendered that design outdated.
The 2A might conceivably serve it's function in a modern world, but not in a country where the citizenry has accepted the changes the US has since roughly the second quarter of the 19th Century which have completely eradicated it's fundamental premise.
- Civilians today do not have the means to stand up to a modern state. For a minor example see https://en.wikipedia.org/wiki/Waco_siege, note the outcome was never in any doubt just how much casualties the feds wanted to inflict
- Weapons today have much larger damage potential
- We live in a world that violence and weapons are not part of the way it used to be, for the better. I don't think we are ready to go back to having to defend ourselves
- A strong and well armed democracy was hoped to be a better solution to this
“Brandishing” a weapon is already a crime.
I think showing up armed to a protest against the government is sometimes important - reminding the government that the populace as a whole has the means to fight oppression is an act of political speech.
Using guns to imply a desire for violence against a group other the government seems wrong to me and I would be against it if I thought there was a way to legitimately differentiate between the two.
Not sure the current status, but I'm sure a lot of lawsuits happened.
Reagan was quick to pass the Mulliford (sic) Act
A member of his party, Republican Assemblyman Don Mulford, was the one who introduced the Mulford act, which was named after him. Reagan openly supported the ban on open carry. If you are going to split hairs on which party did which, you should mention who actually introduced the bill.
But yes I am well aware that the Democrats have a racist past and were the major proponents of segregation in the south in the 60s.
You act as if my mistrust of the government only occurs if the government is run by Republicans.
Maybe that should change in light of the dramatically changed jurisprudence in so many other areas starting with the New Deal Court, but not in an application for an emergency stay.
Robert's order says that "similar or more severe restrictions apply to lectures, concerts, movie showings, spectator sports, and theatrical performances." He concludes that California is not singling out churches.
Kavanaugh's dissent notes that churches are being treated worse than "factories, offices, supermarkets, restaurants, retail
stores, pharmacies, shopping malls, pet grooming shops,
bookstores, florists, hair salons, and cannabis dispensaries."
Both opinions do ultimately agree that emergency orders are, in general, constitutional during a pandemic. And not by presumption, but by an examination of the laws and facts.
That is why neither position makes this a central question: not because it's presumed, but because they both ultimately agree it's not a point of contention.
The point of contention is whether this particular order's treatment of churches is constitutional. Not whether the orders in general are constitutional.
Once both sides agree that the orders are in general constitutional, the argument that churches should be allowed to stay open while some other similar things stay closed now does require an argument.
There's no question that such requests are generally Constitutional.
I’ve never seen a cannabis dispensary where masses of people crowd together and sing spittle into each other’s faces.
Surely when looking at same treatment, you have to consider the differences in exposure. Plus church can feasibly be done remotely, where cannabis dispensing involves some physical transfer (could be mandated to be delivery though, and no singing and reduced capacity could be mandated for church gatherings).
So churches clearly have more access these days which makes that argument silly.
This is not true for San Diego county.
You can't go and browse, but both medical and recreational users can order online and pick it up or have it delivered.
As for the religion of cannabis, there's community, shared culture, ritual consumption of a specially-prepared substance, believers say how much it improves their life, etc. I even used to buy weed from here: http://coachellavalley.church/
The dispute is what qualifies as comporable. The majority feels that services are comparable to
"theatrical performances, where large groups of people gather in close proximity for extended pe-
riods of time", and not
stores, banks, and laundromats, in which people neither
congregate in large groups nor remain in close proximity for
The dissent considers comparable activities to include:
"factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops,
bookstores, florists, hair salons, and cannabis dispensaries. "
Neither side cites caselaw for there determination on this crucial fact.
I don't think a state or the US should be allowed to make that determination.
Interfering with religious practice can cause irreparable harm to persons. It is up to the person and the religion.
This is not really something the state can reason about.
Growing up in a Christian home I'd say allowing religious services to continue is more likely to cause harm to people.
Still, it sounds like you think physical religious gatherings are some kind of human right.
The question is that right can only be temporarily, narrowly, and non-discriminately suspended under extraordinary circumstances, and 5-4 agreed that is in fact what has been done.
For me personally, grocery shopping is undeniably more important since I am not religious. But for others being denied access to religious services or practice may be a grave sin that is worse than having to wait in longer lines at the grocery store.
On that note, I am going to go shopping.
If California put the same restrictions on grocery stores, as it did churches they would be more consistent with US law. Otherwise, the government has to prove that the difference in restrictions is so important it outweighs the religious concerns raised by the plaintiffs. (This is a high bar to reach in the US.)
The SCOTUS is being lazy by letting CA characterize a church similarly to a commercial movie theater. That is nonsense. A person can miss a movie without risking eternal damnation, but this may not be true for some church services for some Christians.
Earnest belief has also led to self inflicted wounds, drowning, and hanging others. I don't think religion should get a pass or get preferencial treatment.
That is why I have been careful to describe protected religious practices using the term 'otherwise lawful religious practice'.
The plaintiffs clearly practice a religion. Going to church is clearly a legal religious practice. Thus, the government needs to prove that shorter lines at grocery stores are more important than longer lines or less capacity at churches. The government can't prove that because it can't interpret (or weigh) the importance of going to church.
If you've known any religious people who successfully fasted all food for over a month then you may have seen the evidence for yourself. (Even as a once religious person I found it shocking.)
Religious practices are not supposed to be singled out. That is why a neutral rule that did not exempt grocery stores would be more consistent with US law.
I think the court was being lazy here because the covid rules are temporary rather than permanent. But the government cannot measure the harm that may be caused by missing church. You and I can say it is no big deal, but the government really can't say that without judging the merit/efficacy of the religious practice.
This order is 6 pages, I imagine it would be 60 pages or more if it actually ripened into a real appeal.
What sort of disputes in the past would have revolved around the similarities or differences? Perhaps disputes about zoning or occupancy permits? You don't see a whole lot of that kind of dispute rising through the courts to make a lot of case law.
There is nuance, such as, if the state can prove to a court that a zoning restriction is necessary. For example, a rule against high occupancy buildings in a flood plain, or the like, may be okay. While a rule against off street parking in a residential neighborhood, or the like, may not be enforced against churches.
Generally, US governments get into trouble if they put restrictions on religious institutions that are not absolutely necessary.
Usually they "take judicial notice"; but for some obvious things even invoking those words is skipped, because the fact doesn't even rise to the level of scrutiny.
The position of Roberts (writing for the majority) is that:
> Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,"
Which is to say, even the majority acknlowdges that there are times where the courts should intervene. The question of what a "comparable" secular activity is is very much a legal one.
Edit: I have tried to find what Alito thinks but can’t find any information. He voted to fully reopen churches but did not join the dissenting opinion or wrote his own so I don’t really know what his opinion is.
We're becoming a technological society; most people recieved life-saving information directly from infectious disease experts giving interviews on CNN, Fox, CNBC, and so forth. If you are successful in stopping a pandemic, most people won't know you stopped it, and furthermore, once you have it contained, you have to deal with keeping it contained because unlike spanish flu, you have no herd immunity.
I think just on first hand knowledge alone, most people don't believe there's been a pandemic and they'd be correct in that viewpoint; something else, something very novel, and probably very good for us all, has gone on.
What I find particularily onerous about this ruling is the Supreme Court is using the term "church" in their writing; given, it's a church that's filing the lawsuit, however, they are not using language such as "places of worship" or "Religious instutitions". Do these rules apply to Synagoges and Mosque's? It gives the feeling that if we were dealing with those institutions, an entirely different discussion would be had and that's dangerous given groups of armed protesters are willing to peacefully walk in and occupy government buildings in a show of force.
This seems to be an established practice, though, as in "wall of separation between church and state", or "Neither a state nor the Federal Government can set up a church.". I believe the "church" is used independently from religion, but I hope somebody can confirm that...
You mean like if the USA would change "In God we Trust" to "In God, Yahweh, Allah, Buddah, et al we Trust"? There has long been a bias in the USA towards the predominant religious institution away from the minority ones.
Are you sure that is the case at the federal level? Some states or governors may sometimes do something like you suggest, but I think at least the Supreme Court is more reasonable. Some examples here: https://en.wikipedia.org/wiki/First_Amendment_to_the_United_...
> In God, Yahweh, Allah, Buddah, et al we Trust
Some comments, a bit off topic:
* "In God We Trust" only became the US motto in 1956, presumably because of the "Red Scare"
* Allah = Christian God = Yahweh, so your proposed motto sounds stupid. (Though I think I read somewhere of a theory that the Torah is actually an aggregate work, so that different parts actually speak about different gods, or something like that...)
There is no consensus on this, either among Muslims or Trinitarians.
stay home, stay safe.
the mask is for their protection, put it on while you're working
There's several cases cited in the dissent. Succinctly the argument is:
>“restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Robertsv. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification.
Which seems on point to me.
Theaters, concerts, and theatrical performances have a harder time changing the product. "Wonder Woman 1984 in 15 Minutes" doesn't sell. Cutting a college lecture down to 20 minutes doubles or triples the number of lectures needed to cover the material.
It seems what you take issue with is the definition of "essential". That's fine: but even if California is allowing businesses that are not truly essential to remain open, that doesn't change whether or not Churches are essential. A mistake by California in one are does not require that it apply the mistake elsewhere. And again: every type of gathering style similar to what would be experiences in churches has also be put on hold. Are you aware of any business that has a similar exposure profile as churches, and is not necessary for normal everyday survival (food etc.) that has been allowed to remain open? (Though even if you are, again such a mistake by California does not require it to double down on that mistake with other such gatherings.)
And indeed, under this current order, they haven't.
They've limited them to min(25% capacity, 100). What's under contention is whether this is treating churches differently than other similarly-situated secular facilities. The two sides come to a disagreement over which other facilities count as "similarly-situated".
I'd be disturbed if there was no hint of dissent when something pretty clearly goes against the text of the Constitution. We should all have a bit of hesitation as this unprecedented stuff is happening, and make sure it's not permanent. Let's remember that this is all not normal, so hopefully we can somewhat get back to normal with our rights intact.
Incorporation isn't clearly in the text of th Constitution, and this is State not Federal action. Even if incorporation were clear in the text, it's not at all clear that failing to exempt religious gatherings from a broader general prohibition would be clearly against the text. It's true that even incidental impacts to important rights from facially-neutral acts are given strict scrutiny under case law, but that application is itself not an unambiguous application of the text and it's far from clear that this would conflict with that precedent.
Did Congress make a respecting an establishment of religion, or prohibiting the free exercise thereof?
These rules may ultimately be ruled unconstitutional but there’s nothing pretty clear about the incorporation doctrine.
This is a good ruling regardless of the importance of religious beliefs one might have. Churches are still subject to baseline rules like building codes, food safety (if they have a kitchen), have to pay their phone bill or else lose phone services,and the like. This represents an appropriate segregation of responsibility and allows parishioners to participate without having to consider externalities.
I also am interested by the prevalence of 5-4 rulings, which are typically taken to imply a highly polarized court (and thus leads to some consternation when the voting is “strange”). Consider the opposite: perhaps all the justices want people to be safe: when they know that five will vote in that way, the other four can safely issue “position papers”.
This latter point could be very important to the survival (credibility) of the court. The justices, though they don’t face elections, sometimes describe themselves as politicians: if people consider the court illegitimate or irrelevant then their rulings won’t be observed. So by signalling that every position is considered they help rope in those disappointed by the result.
Could you cite examples of them saying that?
Generally, the justices go out of the way to insist that they are not political. See, for instance:
In that he's talking about a perception that the court is not impartial and that the justices are seen as taking positions, and even (by implication) instruction from political parties. This concern, by the way, has existed for a long time, at least to the era of Dredd Scott if not earlier; presidents from Lincoln to FDR and, to a lesser extent to recent times have made the same charge.
And that is the sense in which I have heard various justices (since the 1970s -- I'm an old fart -- through a speech Roberts gave a few years ago which I couldn't find by searching -- in which they need to manage the perception of partiality because the Court is a participant in public life, and indeed in political public life. The sense in which I was quoting is that they are political actors though the entity they are working to protect is the credibility of their institution.
I have no illusion that any judge is superhuman and able to be impartial. But it's interesting to see how Justices' voting tends to shift as they are on the court for a while. It implies a certain independence of mind, though perhaps not from each other.
I think it's also worth considering that the vast majority of cases that are appealed to the Supreme Court are not taken up by the Court simply because they would rule unanimously or close to unanimously. The Court has a limited amount of cases that it can hear each term, so it goes out of its way to select those for which the law is the most unsettled (and therefore are most likely to produce split results).
I think that a big problem with SCOTUS as it stands today, is that a simple majority of judges is sufficient to decide profound matters of constitutionality. But if the decision is 5:4, or even 6:3 - if there are so many dissenters - shouldn't this be taken as prima facie evidence that the constitution is ambiguous on the issue, and needs to be disambiguated?
Imagine for a moment that any Supreme Court decision that causes such a split, automatically triggers the constitutional amendment process. And for every substantially different court opinion, the judges should come up with verbiage for an amendment that, if ratified, would result in them all joining that opinion. Whichever one passes, you have both your decision, and the constitution is actually updated to reflect it. If no amendment passes, then simple majority still decides, as today - but it doesn't set a binding precedent on the question of constitutionality.
In CA (this case was about a california rule) certain non-essential businesses are opened under heavy restrictions which include contact and congregation rules. Churches are not given an exception to those rules, which still bar similar things like concerts.
And cases like that most definitely have and do reach the Supreme Court: consider hobby lobby or this year’s rulings on teachers at religious schools.
>Churches are not given an exception to those rules, which still bar similar things like concerts.
This was the decision of the Supreme Court. The Pentecostal Church and the dissenting judges think differently.
>And cases like that most definitely have and do reach the Supreme Court: consider hobby lobby or this year’s rulings on teachers at religious schools.
These are cases on nuanced applications of the law. The idea that churches have to follow building codes, labor laws and health laws is a settled matter.
While freedom to believe in a religion is constitutionally protected, I think it can be strongly argued that congregating shoulder-to-shoulder in a confined space while shouting and singing is not an essential activity and should be restricted during a deadly global pandemic. Freedom of speech is protected too, but we don't see libraries in a rush to open up.
US law has developed such that commercial activities, including commercial speech can be subject to more limitations than non-commercial activities.
Also, US law has also generally held that political and religious activities are the most protected. This doesn't mean that anything goes, it is just that the government needs a really good reason to interfere.
If Covid-19 rules restrict religious practices more than some commercial activities I think we have a problem.
I feel the emergency stay should be left in place because the state is not equipped to measure the amount of irreparable harm that may be caused by interfering in an otherwise legal religious practice.
Oh come on. It's OK to pick and choose which activities are more important than a health rule -- a doctor or a plumber clearly should be permitted to perform some necessary activities or life would be at greater risk. And the law parses apart the cases: you can get respiratory care or chemotherapy but not plastic surgery. The plumber can fix a backed up sewer pipe but (for a while) not do new construction, etc.
Perhaps your note was accidentally misworded. If they restrict religious practices that are physically identical to commercial activities that are not restricted then we would have a problem. If concerts were allowed but not churches that would be a problem. If outdoor concerts were allowed but not indoor ones, then outdoor religious congregation should be allowed even if indoor equivalent is not. Etc.
But nobody, including the plaintiffs, is making that assertion.
The government needs a neutral independent reason that withstands strict scrutiny to regulate religion. For example, building fire codes can apply to religious buildings. But many zoning ordinances have to exempt religious buildings.
Here the government is saying some commercial activities, like grocery stores are more important than going to church.
The SCOTUS order is side-stepping the issue by trying to categorize religious practice as similar to going to see a movie.
It would be interesting to see how the court would have ruled on an appeal of a fully developed case. Here, since they are evaluating an emergency stay order, rather than a fully developed case, I think they were comfortable cutting some corners.
But no, governments instead editorialized and said these kinds of businesses are cool and these aren't, turning it into a politically charged value judgment of this industry vs that activity.
From the dissent:
"As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.""
"What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.
California has not shown such a justification. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”"
"The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities"
This is the key to get an emergency stay of the stay at home order until the supreme court can actually handle the case. This is extremely rare. I don't see any evidence here, he is just stating it as a fact when it is clearly not.
The importance or merit of a particular otherwise legal religious practice is not determinable by a US government. For example, the US government is not in the business of interpreting the bible and telling Christians how to practice their religion. The government only goes as far as determining if a person's belief system is a religion (broadly interpreted), and if the religious practice in question is otherwise legal (to exclude obvious overreaches such as child marriage, and such).
Plaintiffs do not need to prove a restriction of a religious practice causes irreparable harm because there is no way to prove it, they just declare it.
E.g., Prisons have to honor the religious dietary restrictions of inmates. The government can't say it is not important, here eat your ham sandwich like everyone else.
"Again I say to you, if two of you agree on earth about anything they ask, it will be done for them by my Father in heaven. For where two or three are gathered in my name, there am I among them."
There is also the idea of Communion, which is a religious gathering instituted by Jesus himself, in Luke 22. Paul also exhorts believers not to "forsake the assembling of themselves" in Hebrews 10.
Communal gathering as a church is actually a religious doctrine. The details of how one should do so is really a thorny issue, and the state saying "only so many may do so" is perilously close to breaching separation. It has nothing to do with praying loud to appear religious in public to get praise from men.
Proven mitigations against real threats are more important than the unprovable 'benefits' of religion. No matter how old, popular, or eloquent the source of the religion.
Trying to convince me is definitely not worth your effort. To act like you care what I think is an indictment itself.
Secondly, Christianity as practiced today is very different and not something Jesus would have understood at all so in many ways the Bible and Jesus is not key to understanding American Christianity.
Not to make this a religious discussion, just striving for a steelman interpretation of the religious logical stance.
So does virtually everywhere in the country (speech)
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
It’s just not equal in the eyes of the courts, the law, or in legal standing. You don’t need a business license to open a church, to my knowledge. Even if you did, that doesn’t change their tax exemption status and other exemptions and differences in operation and interfacing with other legal and zoning entities. They are not treated equally under the law as other institutions. In some ways they are legally similar to schools and other higher learning institutions in the regulations which apply to church property; firearm regulations, for instance, apply to schools and religious places of worship differently than your home, or in your car, or on the street or sidewalk.
You can’t equivocate because religious places of worship are not equal to places of business. In the eyes of many churches, the congregation is the church proper, not the building, so if you ban the gathering, you have banned the exercise of another’s religious beliefs in a real, meaningful way. That is the part which is unconstitutional, which is where we disagree on the letter of the law.
The state argues that churches aren't like grocery stores, but like concert halls or theaters, which remain closed and will likely have similar occupancy caps when. The state also goes a bit further and notes that churches include singing, speech, and audience participation that isn't common in other places like grocery stores and theaters, which increase the dangers of spreading respiratory droplets.
The majority essentially agreed that Churches are more like concerts than grocery stores, and that treating them similarly is reasonable in an emergency situation. The minority disagreed.
: I'm unclear on this, the grocery stores I go to do have 1-in-1-out policies and capacity caps. Lines go out the door and are socially distanced.
If retail stores and restaurants can reopen, why are their doors staying closed especially given the measures taken to prevent any transmission?
You can follow up on the article below.
There is so much more to the story.
I do believe the governor could have made the case better by stating restrictions (6 feet personal space, no sharing drinking cups, perhaps no choir in enclosed spaces?) instead of blanket numbers like max 100 people in a service regardless of church size which seems a bit arbitrary.
> "factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. "
I think saying religion is equivalent to sports is pretty strange. People clearly place way more importance overall on religion than they do on sports, even in a country that's pretty crazy about sport.
I would definitely argue that church is more important than pretty much everything in the latter half of the dissent's list.
Attending "church" is functionally different from "religion". The performance aspect of church is much closer to actors participating in a common theater. The other aspects of religion can be performed outside of church and usually without gathering physically in a communal room.
It even has more important events that typically draw larger crowds (high holidays/playoffs).
Pet grooming is open, and to some extent I agree with you (although I have used one). In my opinion the difference is that social distancing is trivial. We left the pet in the trunk and they picked her up from there and delivered her back there. No human interaction.
I find this fascinating in that there is no legal argument on either side (even in the supreme court!), but it is an argument about what church services are comparable to. I think this should go into law and would sort of be fine with any reasonable outcome (lower than supermarkets, but potentially equal with manufacturing), but if I got to decide it would be like a sport arrangement.
In that case it seems a little bit inconsistent, but that is up to the governor to decide. I do feel he implemented this a bit badly, but not bad enough that most of the supreme court felt it was illegal.
Maybe you're right - but maybe you're wrong.
>all you would have had to do was stay home, is the very definition of selfishness.
Staying at home for extended periods is not the easy thing people seem to project. Social gathering are very important to a lot of people. Religious gathering are the same.
Telling people that there is no "risk analysis" here is both dishonest and dangerous.
It could also be that things are more of a spectrum than black and white.
I could care less about their personal assessment of risk, what I care about is that they go on to put other people at risk through these shenanigans. Someone willing to go to a crowded church during a pandemic intersects highly with people willing to go into other public spaces during a pandemic. I don't want to be put at risk because of their stupidity. They're not just making decisions that effect themselves.
The Rabbi might use his freedom to leave his synagogue open, close it until we defeat coronavirus, or close it until defeat all transmissible contagious disease.
Additionally, safety rules are in place to make Motor cycle riding as safe as possible for the rider and anyone with whom they interact.
The calculus of a pandemic is different. Your choices affect others, potentially exponentially. You can decide you're in a low risk group, and so you don't care if you get infected. So you do get infected, and like your risk analysis determined, are fine. But you also infected 3 more people thinking the same thing. They each infect more people. One of those people several "generations" away from you then receives an emergency phone call from the nursing home, and rush to go see grandma. They infect several people in the nursing home, and now people that didn't want to take the risk of getting COVID-19 so you could do something you wanted to get COVID-19 and die. When dealing with exponential growth, your small choices can explode into large consequences.
People don't do well with cause and effect that they are strongly removed from, and that's what we're seeing with calls to reopen. The negative effects of their behavior will never affect them, so their thought is to ignore it. People in charge of public health have to balance these externalities, and that's what they're trying to do. I am not saying that they made the right decision, but it still seems prudent to me to avoid unnecessary activities if it means you may save someone else's life. We did achieve some important goals in the 3 months that we've been shut down so far. We have better tests. We have better contact tracing. We have more PPE. We have taught people to socially distance. So we are certainly making progress towards being able to live more freely without increasing the risk to the most vulnerable. But we are not in the clear yet.
They were both wearing helmets.
It's not strange at all. America is a federation of states which get to tax you, and get to pass their own laws. Your Mayor and Governor have much more impact in your day-to-day life than the President.
It just seems to strange to me they wouldn't be required in every state because it's such a severe safety hazard not to wear them.
When the US federal government has wanted to enforce
things like a nation-wide speed limit, or vehicle safety
requirements, they have had to threaten to withhold
highway funding to get states to go along by passing state-by-state laws. In theory, the same could be done with
helmet laws, but enough political energy has not materialized
for that to happen. This pattern will have implications
for full-self-driving vehicles.
Really in the weeds by now, but it just seems strange to me that each state has not decided, on it's own (as per the structure of our federal and state system of governance), to make helmets mandatory.
In this case he said that the 2nd (and clarified he meant all rights) is not a license to carry whatever weapon wherever you want for whatever purpose. That the point of the amendment was contextualized and needs to retain that context.
Religious practice doesn’t HAVE to take place in a temple. It’s reasonable enough to say that at home or safe group sizes during pandemic create less of a burden on the religious than the spread of a pandemic does for everyone.
I understand that that’s not how it was decided. But it goes to show that they don’t just think in black and white. Kavanaugh is an ignoramus though.
I think the title is probably worth keeping.
That reasoning tells that a law (the "criminal law") beats the Constitution by putting restrictions on a Constitutional right. First, it means the law should be considered unconstitutional by any decent logic, but SCOTUS decisions tells it is not. Enough cuts, rights are dead - free speech is the one that mostly exists, second amendment is heavily stripped in most states, fourth and fifth are regularly voided, probably a good lawyer can give examples for all.
What I am telling is that if people consider some rights should be limited, the Constitution should be amended, not ignored. Two wrongs don't make a right, if something in the Constitution is wrong (the rights are too absolute) then raping the Constitution does not make it right.
Please explain me where I am wrong in terms that use logic, especially for someone like me that is a complete foreigner (I live in Europe) and not familiar with these apparent wrongdoings. I am not saying anything in support or against this decision, I am saying this decision does not make sense in the context of the US Constitution text.
In terms of this, if a religion had a specific requirement for exactly 101 people to preform a ceremony then they have a real case. However, region is not a blank check to allow arbitrary gatherings of any size especially if there are any options.
That’s not really possible, since logic isn’t the basis of law. This is a trap that the engineering-minded seem to fall into frequently when examining the law: There is more to American jurisprudence than the literal text of the Bill of Rights.
It’s not particularly difficult to see where this would fall apart, even. Imagine a religion which requires its adherents to kill one person per year. A person with the required “sincerely held beliefs” who follows this religion would be allowed to kill with impunity under a literal examination of the first amendment. (Or, maybe not. Since we’re looking only at the BoR, I guess we’re pretending there’s no incorporation in this hypothetical?)
Rather than try to keep rewriting that one rule to greater and greater, more and more unwieldy specificity – don’t forget that the US Constitution is difficult to amend on purpose – the entire body of law applies. Given the prominence of the first amendment, there are likely more cases relating to it than one could conceivably read in order, beginning to end. Employment Division v. Smith  probably relates most directly to your question. (But do remember when you read it that incorporation is a real thing that exists. Don’t let it distract that it wasn’t federal action.)
There's a lot to parse in your post, but I would strongly suggest reading J.S. Mill's On Liberty. In it, Mill describes (what is now known) as the Harm Principle. This (or something like this), and not necessarily criminal law, is essentially what the Constitution is beholden to. It just so happens that most crimes also violate ethical principles.
1. Constitution gives a right: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
2. A law restricts the right
3. A law cannot disobey the Constitution.
4. Everyone thinks this is fine, including SCOTUS.
You don't have to be Vulcan to see logic is broken.
Ultimately if you can't be bothered to read a short book on the subject, you can just live with your confusion on the subject. The world can't be boiled down to sophomoric sequences of logic that ignore the complexities of reality and human behavior.
Logic isn’t even the correct framework to apply.
Laws are found to disobey the Constitution literally all the time (this is what SCOTUS does). And, yes, you do need to read a book to understand how modern political philosophy works. Just how you need to read a book to understand how the cardiovascular system works.
Conditions are in general meant to be broad so the last for a long time, and congress can implement laws around the details. The Supreme Court in the us can strike down laws if they believe they are counter to the constitution.
In the same logic, Pythagoras' theorem should be interpreted because it is very old, it had a different meaning when it was written and we need to adapt it to current realities. For example, it should be restricted to triangles with less than 100 inches on the longest side; anyone that disagrees must show a legitimate need for having bigger triangles and even then, the theorem needs to respect criminal laws or the country. Or, as an Australian Prime minister said, "The laws of mathematics are very commendable, but the only law that applies in Australia is the law of Australia." /s
While I agree that lawmakers are too often too sloppy, with many laws being unnecessarily ambiguous; I disagree with your supposed goal.
The first problem that comes to mind is that not even mathematics is done in formal languages, but I think much deeper issues are at hand here. It is that semantics are hard, even when the grammar is unambiguous.
I found a relevant quote from a 1881 book by a future SCOTUS justice (Holmes), The Common Law. This is the very beginning of the book: The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.
These Wikipedia pages might be interesting:
If you want to get more "practical", try thinking about the real problems that Jefferson & co. would have had trying to express the Constitution, Bill of rights, or even more mundane laws as you would like. It's not just that there was no Lojban or Ithkuil back then and math was less developed, even today the expertise required simply does not exist, and it is not clear if what you wish is even possible.
I want to say that, although I disagree with you, thinking about the questions you raised has been a rewarding experience for me and I wish you luck in finding somebody smarter and/or more knowledgeable in the philosophy of law than me that you could discuss this with. Although, you may need to adjust your attitude to be less sour if you want more discussion, it will be more pleasant for other people if you manage to do that (I know that's difficult). I have a hunch you may also find some answers in science/speculative fiction, but, sadly, I can not remember a relevant work right now. I would like it if you could tell me if you get some interesting conclusions down the road.
Free Exercise has never meant "do whatever you want" because that would have rendered all other laws moot.
The Reynolds case has a good discussion of what was going on in the heads of the BOR convention. In a nutshell, religion was viewed as "beliefs" not "actions." (There is a letter from Jefferson on this point.) So the free exercise of religion was understood to mean the freedom to believe whatever you wanted to believe, not whatever you wanted to do.
Modern First Amendment law is actually broader than the BOR...religious practice is considered subject to First Amendment protections, but like speech, is subject to extremely limited restrictions.
Free exercise for almost any religion includes going to the places or worship, without restrictions. At the time the article was written, there was no video conferencing so it was definitely considering going to the church as part of exercising the religion.
That's not part of the free exercise clause, that's part of the establishment clause. Yes, it's confusing. That's why lawyers get paid the big bucks: to spend days going through the laws, cases, and volumes of written literature on complex topics like this.
Similarly, the content of speech is protected, but the action performed by that speech (for examine, incitement) is not.
For free speech, the protection should be for speech, there is no free action so your comment is not clear on what it points at.
Since then, religion has come to take on the layman's meaning including both beliefs and actions, and courts have given religious practices First Amendment protections similar to speech. (In this sense, it is similar to the dichotomy between the blanket protection on the content of speech but the allowance for restrictions on the actions that speech may effectuate.)