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Supreme Court says state may enforce some restrictions on religious gatherings [pdf] (supremecourt.gov)
108 points by billme 40 days ago | hide | past | favorite | 255 comments



The difference between respecting a right and not can be seen by how much restraint goes into crafting the law. The details can get murky, but often the spirit is plain to see: was a good faith effort made to specialize the law to the problem being solved with minimal interference on any rights?

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.


The gun store issue in California is even worse because of the gun laws. You cannot lawfully acquire ammunition anywhere except at a gun store. You cannot lawfully acquire or transfer a firearm to another person except at a gun store. Lending a firearm to a friend in case of civil unrest is right out. And if you have a place to shoot right now, your ammunition supply is probably a little perilous.


The background-check-for-ammo law is a constitutional disaster. There was recently an injunction against the AG enforcing it, but the ninth stayed the lower court's order.

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.


There's an interesting constitutional issue there... which is that the right to bear arms is not the right to buy ammunition. That is made all the more challenging for an originalist, because metalic cartridges with percussion caps were not invented for almost a hundred years after the Bill of Rights.

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?


Applying the same logic to 1A, we could say that the freedom of the press is not infringed - you can have as many as you want! - but it doesn't say anything about ink. Or laser and offset printers, for that matter.

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.


See, I actually agree... it's the originalists who have a problem.

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.


Mail order ammo is only legal until the state says it's illegal - CA did just that. My understanding of your original premise was that there are no venues available.


"If black powder and shot for a muzzle loader are available, has your right been abridged?"

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".


"Our rights are naturally extended with technological advances in the same spirit"

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.


>“though I have no doubt exceptions can be brought forward, I think the following rule would be found generally true: that ages in which the dominant weapon is expensive or difficult to make will tend to be ages of despotism, whereas when the dominant weapon is cheap and simple, the common people have a chance. Thus, for example, tanks, battleships and bombing planes are inherently tyrannical weapons, while rifles, muskets, long-bows and hand-grenades are inherently democratic weapons. A complex weapon makes the strong stronger, while a simple weapon — so long as there is no answer to it — gives claws to the weak.”

-George Orwell


Bear arms is usually understood as being read with keep, as in in keep-and-bear arms.


It means to carry firearms, whether you keep them or not. Both rights are being codified in keep-and-bear.


The Amendments do not grant rights but protect them.


> . Lending a firearm to a friend in case of civil unrest is right out.

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.


>In California, you can lend a firearm to other people who have a firearms safety certificate for up to 30 days... 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"[1] and banned all loans to non-relatives. These are not "fake restrictions", you can verify them on the state of California's own website[2]

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.

[1]: https://a17.asmdc.org/article/2016-legislation-0

[2]: Law which amended PC § 27880[3] to ban nonfamilial loans: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml...

[3]: https://leginfo.legislature.ca.gov/faces/codes_displaySectio....


>> “banned all loans to non-relatives”

False; see PC § 27885:

https://leginfo.legislature.ca.gov/faces/codes_displaySectio....

——

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:

https://www.atf.gov/file/117166/download


True, when I think of loan I was thinking more along the lines of "let a friend take it home", not loans that require colocation. Definitely agree with you on the complexity— some of my personal favorites are how CA and the Feds measure the lengths of guns completely differently, leading to much confusion. And of course there's 3 or 4 different definitions of what it means to "possess" a gun, which depend a lot on the context


  False; see PC § 27885:
PC § 27885 (a) The person loaning the firearm is at all times within the presence of the person being loaned the firearm.

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.


Curbside pickup ammo and guns is allowed, see for example http://reedsindoorrange.com/


Allowed the whole time in all California jurisdictions, or allowed now (after lawsuits)?


It was not allowed until after (but not necessarily as a result of) the lawsuits. CA gun stores first started getting shut down in March. On April 10th, the ATF issued guidance saying that it was OK to do curbside pickup (for the whole country, not just CA: https://www.atf.gov/firearms/docs/open-letter/atf-business-p...)


  and guns
Not according to your stated example. Quoting:

"Ammunition and accessories only No firearm registrations."


Why not implement social distancing rules and require proper ventillation or even outdoor services? Religious orgs are non-profits that can't survive without attendance. Prohibiting the free excercise of religion is a clear violation, especially given that other unprotected gatherings are allowed with less restrictions. To many it's an optional gathering, to others it's a "church vs state" fight, but the right was esrablished to protect the people that consider these gatherings as important.

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.


> you can't be ok with this and then have a problem with sharia law and honor killings.

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”


I am aware of the comparison and you're misunderstanding.

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.


What's wrong with Sharia law? As far as I know it's generally accepted in the US and presumably in other civilized countries that parties who agree to decide their disputes in alternative settings such as religious courts are allowed to do so. It's not something done by members of one religion only either. Jewish and Christian sects do it/have done it historically.

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.


I was saying sharia enforced for criminal punishment contrary to secular law as an example.


If an unmarried daughter has sex, the father can kill her. I think that shouldn't be allowed.


That's your opinion, a right is retained despite majority opinions. Constitutional rights specifically outline legitimate relationship between government and governed where violating that constraint breaks the contract allowing the government to make and enforce laws.


My understanding is people have rights that trump whatever religion they are born into, i.e. the fundamental rights listed in the declaration of independence.


In the US you must opt-in to a religion. Parents can raise you according to their religion,the bill of rights applies to government not parents so they can tell you whato to say do and believe. Basic human rights are protected for most people (except prisoners I guess),but also additional rights for children exist both at the state and federal level. The idea of being born into a religion is not recognized. The declaration of independence is apparently not a legal document you can use in court. If it was,the fundamental rights you mentioned according to that document are self-evident and are given to mankind by God, meaning government cannot implement laws against the self-evident will of God and the self-evident rights of God has given to mankind. It was the foundation of their argument for independence, since after all King George is legitimate only because the people believe he was divinely appointed,deriving authority from God.

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.


I don't think muslim children in the US necessarily get to opt into their religion.

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.


Are you advocating gun stores have to remain open for the right of the people to own a gun?

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?


You actually want the gun stores to remain open. Why? Because closing them just feeds into the hoarding mentality that causes people to buy irrational numbers of guns when they are available. If someone feels like they can walk into a gun store any time they want and buy a gun with no hassle, they won't be in any rush. And for certain kinds of people, there's a big element of "the government doesn't want me to have this thing... here's a pile of cash, I'll take 12 and stick it to 'em".

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.


> Are you advocating gun stores have to remain open for the right of the people to own a gun?

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.


I’m strongly in favor out stronger gun control but find your argument here reasonable.

After a bit of googling I see that gun stores are indeed allowed to provide for curbside pickup and are open: http://reedsindoorrange.com/


"I’m strongly in favor out stronger gun control but find your argument here reasonable."

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[1], even in states with very permissive rifle laws. What do you think about removing pretty much all restrictions on rifles (and accessories, including suppressors[2]), and instead restricting pistols more heavily?

[1] https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-...

[2] 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".


Overall I would rather 2nd amendment would not exist and I don't think it belongs in a modern world (I am a retired soldier that has served abroad, and have gone to gun ranges to shoot).

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.


"I'm personally mostly OK with rifles, except automatic rifles with large capacity magazine."

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.


Agree fully about ways of transporting that includes walking. I have seen many pictures of people using guns for intimidation. I remember one picture of a black kid in Charlottesville laying down with the hands up and armed protesters were pointing guns and rifles at him. To me this is a pretty serious offence.

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.


> Overall I would rather 2nd amendment would not exist and I don't think it belongs in a modern world

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?


> Why don't you think the 2A belongs in a modern world?

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.


I would say an armed militia can still resist any industrialized nation. The US has lost numerous modern wars against minimally armed guerilla fighters. Pretty interesting such means of resistance has been so constantly successful.


Not just standing armies (but true that makes the argument much stronger), but also the militarized police force. A SWAT team is a mini army and the combined states police forces could easy invade many countries today if that was an option.


Several reason:

- 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


Taliban didn't do too badly in afghanistan. We've never defeated them despite over a decade of the world's most advanced military. Sure, they've had help from iran and such, but still their armaments are mostly inferior to what the average US citizen can buy with the right license and enough money.


Taliban doesn't get help from Iran. They get help from Saudi Arabia and Pakistan.


> and should not be used for intimidation in protests

“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.


It appears San Jose took a strong stance at least at one point:

https://www.mercurynews.com/2020/03/18/coronavirus-san-jose-...

Not sure the current status, but I'm sure a lot of lawsuits happened.


They wanted to stay fully open, not curbside delivery.


The ATF guidance telling FFLs that curbside pickup was legal wasn't issued until April 10th


I read the article I linked again and did not see any indication that Bullseye Bishop was given options to stay open. Where did you get that from?


Yeah it is unclear what the rules were/are, but at least now staying open for curbside delivery is an option. This whole thing took us all by surprise so I can understand if there were minor implementation details in the beginning.


Well, I use to be in favor of gun control. But, knowing what I do about the history of this country, any “War on Guns” will be just like the War on anything else, it will target minorities. We’ve already seen this in California. When the Black Panther Party legally started carrying guns, Reagan was quick to pass the Mulliford Act when he was governor - with the support of the NRA.


  Reagan was quick to pass the Mulliford (sic) Act
Reagan signed the Mulford Act, but it would have become law without his signature anyway. It was passed in the Assembly and Senate, neither of which was controlled by his party.


> Reagan signed the Mulford Act, but it would have become law without his signature anyway. It was passed in the Assembly and Senate, neither of which was controlled by his party.

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.

https://www.history.com/news/black-panthers-gun-control-nra-...

https://en.wikipedia.org/wiki/Mulford_Act


So that makes it a lot better. It’s not like Reagan reluctant signed it. He said that he saw no reason why on the street today a citizen should be carrying loaded weapons.

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.


During the shutdown, police in my area had severe staffing issues, and flat out said they would only come out for the most serious crime. At the same time, huge numbers of people were released from prison.


Legally purchased firearms are rarely used to do something illegal. That would be stupid, they have your name and address. I see no reason why a gun store can’t remain open. Or any store for that matter. It should be up to that business to decide social distancing protocols and mask wearing. If you don’t agree with how that store operates, don’t shop at it. Simple.


I think the argument is just about unfair discrimination.


The only thing that should be surprising about this ruling is the dissent. They can’t cite any applicable case law because there isn’t any. Up until now the Court has always treated the states’ (note states and not federal) police power in a pandemic to be near plenary. This is in line with English common law that developed under the shadow of the repeated waves of Bubonic Plague.

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.


Whether there is a pandemic or not isn't given great weight by either side. Both sides implicitly agree that California isn't allowed to go out of its way to penalize churches, but they disagree on whether it has done that.

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."


You don’t need much in the way of reasoning, or any really, to deny an emergency stay order. The presumption is and should be very much against.


Sure, but neither side is presuming that emergency orders are (un)constitutional.

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 seems to be some very mild confusion here. An "emergency stay order" doesn't refer to an order to stay home during an emergency. It's a request to the court to ask for the enforcement of the law to be temporarily halted (stayed) for the reason that it will cause immediate or irreparable harm to the moving party (it will injure the religious establishments).

There's no question that such requests are generally Constitutional.


That is another good observation that was hard to understand at first to someone very familiar with law (like myself). It would be a very strong action for the supreme court to take action here. The dissent doesn't really say why it would be irreparable damage to keep churches closed a little bit longer.


> cannabis dispensaries

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).


Cannabis dispensaries are currently closed except for medical patients (I know, but if a doctor has written a prescription it is hard for the government to say no), and then only for curbside pickup. See here for example: https://www.airfieldsupplyco.com/mmj-recommendations

So churches clearly have more access these days which makes that argument silly.


> Cannabis dispensaries are currently closed except for medical patients

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.


The dispensary near me (Bay Area) has been open for non-medical non-pickup purchases for weeks. There's a translucent divider and a folding table in front of the counter to create distance, and the iPad menus are gone, but aside from that it seems like business as usual.


Really? Not the ones close to me, but I did not go out of my way to check recently. That does not seem to be essential businesses in my book, or more so than churches assuming proper social distancing rules.


To be fair my sample size is only two (2) establishments :)


There are (or 'were', at the moment) plenty of dispensaries with smoking rooms in the back full of people exhaling their droplets.


The were part is the key here, currently churches have more opportunity to be open (at least in bay area), so that part does not make sense.


If one type of church can be open then why not the other? I acknowledge the risk and wouldn't attend either, but the double standard seems apparent to me.


Cannabis is not in any way a church or recognized as a sincere held religious belief by the supreme court I believe if that is what you mean.


Nope, they don't recognize it as anything except a Schedule 1 substance. That's why it's weird that the weed shops are open but we're in here arguing about how those silly religious people should stay home.

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/


It isn’t about anyone’s individual risk, but the risk to the entire community, including nonmembers.


I think the isolation is a risk to the community too. We have to allow people some social contact.

https://www.washingtonpost.com/health/2020/05/26/americans-w...


I too am dissapointed that this ruling was not unanimous, but the majority opinion is not much better. Both opinions seem to agree on the law generally, in that restrictions on places of worship must be no more onerous than restrictions on "comparable" secular activities.

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

"grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods."

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.


The court is letting states decide that religious practice is non-essential or less essential as compared to some selected commercial activities.

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.


> Interfering with religious practice can cause irreparable harm to persons. It is up to the person and the religion.

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.


Well it most certainly is a human right. Religious or otherwise. That was actually never up for debate.

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.


The problem is that the government is saying that grocery shopping is more important than going to church.

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.


They are still allowed religious service and practice, but in a controlled way that will not spread the virus.


The issue is that the government is putting more restrictions on the church than it does grocery stores.

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.


People need food to survive. No one needs religion.


I take issue with that statement. Yes, people need food to survive, and yes, one can survive without religion, but that shouldn’t be the argument. It should be that one can worship from home; one doesn’t need to go to a religious building for worship.


> 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

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.


A US government does not get to tell people how to practice religion beyond making a determination whether the belief system is a religion. And, making a determination if a particular practice is legal (to exclude harms like you mention).

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.


Food > faith

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.)


That hasn’t been decided one way or the other yet. This was just about what would happen while the litigation continues.


Irreparable harm is a fairly flimsy rationale in the context of the shelter in place order. Nearly anything prevent by the order could be construed to cause irreparable harm -- and many are significantly more concrete than suspension of in person religious services, e.g. reduction in non-urgent healthcare.


Not everything is protected by the 1st Amd.

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.


It would be interesting to see how this case would go with a fully developed case. Here, I appreciate that the SCOTUS is making a hasty and abbreviated ruling here on the emergency stay request. This makes sense practically in view of CA voluntarily reducing some of the earlier restrictions and given the fact that it seems that restrictions will be further reduced in the near future. Thus, there is no need for the SCOTUS to provide a fleshed out opinion absent a fully developed record and full briefing.

This order is 6 pages, I imagine it would be 60 pages or more if it actually ripened into a real appeal.


Yes, I mentioned this elsewhere as well. They key point is what is a comparable activity. That probably needs to go into law, or can this be used as a precedent later?


How much caselaw would there be on comparison of churches to other venues where people gather?

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.


Zoning is a big area where churches often are found to have more freedom. The basic argument is that putting arbitrary restrictions on a church is a violation of the 1st Amd.

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.


Well, yes, because the right answer is so obvious they felt no need to make citations.

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.


Because these are facts not law! As Alito points out he isn't a doctor and he isn't going to second guess them in the middle of a plague.


I do not see any statement from Alito, but he voted with the dissent.

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.


Oh good catch!


Didn’t he second guess doctors though? There were doctors writing the order but he said it should be overruled. Sorry if I’m misunderstanding, honestly want to understand here.

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.


Historically, The states power was plenary is because everyone had first hand observational knowledge of the pandemic; they lost friends, family, acquantences, and so forth. Nobody on the street knew how bad it was at the time until statisticians had time to study records from the time, which to be frank, took decades.

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.


> ... the Supreme Court is using the term "church" in their writing ...

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...


> they are not using language such as "places of worship" or "Religious instutitions"

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.


> 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...)


> Allah = Christian God = Yahweh

There is no consensus on this, either among Muslims or Trinitarians.


There's no consensus that what's actually worshipped is the same God. But as far as meaning of words go, Allah literally means The God, and Arab Christians use it to refer to the Christian god. There's also no ambiguity that Yahweh specifically is "the god" for both Christians and Muslims.


Don't the all believe in the God of Abraham?


> * "In God We Trust" only became the US motto in 1956, presumably because of the "Red Scare"

stay home, stay safe.

the mask is for their protection, put it on while you're working


>They can’t cite any applicable case law

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.


I'm not sure that is very on point. Secular businesses are something different in gathering type than Church services. And when it comes to gatherings where there would be similar close contact inside with often static groups of people, the Supreme Court majority properly made that comparison: "similar or more severe restrictions apply to lectures, concerts, movie showings, spectator sports, and theatrical performances."


Religious practice is incredibly varied. And unless the rule is "don't be religious," religious people will try to be flexible. Christians have an obligation to gather, but many churches can satisfy that obligation with a 15 minute service, no singing, and ample distancing, if those are the rules.

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.


But less severe restrictions apply to other things deemed "essential" or that require physical attendance. And that's the crux of the issue. The government can't declare churches "non-essential" and close them.


Clearly the government can declare them non-essential, and the highest body that arbitrates such claims has rules that California's implementation of the determination was equitable & constitutional. It is defacto legal, allowed, constitutional.

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.)


> The government can't declare churches "non-essential" and close them.

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".


Although I happen to agree that, in this case, the order respects the freedom of religion; I also appreciate the dissent.

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.


> I'd be disturbed if there was no hint of dissent when something pretty clearly goes against the text of the Constitution.

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.


> when something pretty clearly goes against the text of the Constitution

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.


A fair point. But a similar argument could be made about speech and the press. It's at least a little scary.


First, I think it's stupid to go to church (and the likes these times). That's my opinion considering the risk, and god should accept your prayers from home. Or "he" should get rid of the virus. That said, the dissent is not without merit: are all businesses limited to 25% occupancy or 100 or less people? If you risk getting /spreading the virus in a religious setting, you risk the same at malls or whatever.


Two thoughts on apolitical, pragmatic grounds:

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.


> The justices, though they don’t face elections, sometimes describe themselves as politicians

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:

https://www.reuters.com/article/us-usa-court-chiefjustice/u-...


I'm sorry I can't easily lay hands on a link. My statement comes from various speeches given by Justices over the last few decades, which are typically to legal gatherings or to law students. The point is slightly different from the one Roberts made in the article you linked to.

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.



"This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump and the 2016 election, fear that has been unfairly stoked about my judicial record, revenge on behalf of the Clintons and millions of dollars in money from outside left-wing opposition groups," a seething Kavanaugh said.

https://thehill.com/homenews/senate/408821-kavanaugh-says-he...


> I also am interested by the prevalence of 5-4 rulings, which are typically taken to imply a highly polarized court

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).


As a legal bystander, I often feel the Supreme Court writes dissenting opinions for future-proofing the law. Regardless of whether they think the opposing argument is good or not, they don't want to lock a different generation into having to obey present day opinions that would be unsuitable for the country as it will be then. The dissenting opinion can be cited as justification for changing the precedent, allowing those justices to come to a different conclusion.


It's such a missed opportunity, though.

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.


While a good idea in theory, I feel like this would be pointless in practice, because none of the amendments would ever end up getting the supermajority of approval they'd need to pass.


With the current state of affairs, yes, but it hasn't always been like that. The point here is more long-term - this significantly reduces the political stakes for SCOTUS appointments, so hopefully the court also becomes less politicized over time. Another goal is to make court decisions less dependent on the point in time at which they're made.


Are they cited in that manner? (I don’t know either way, just curious)


Perhaps, but it doesn't take a minority opinion to do so. When Muhammed Ali (formerly Cassius Marcellus Clay Jr.) was charged with draft dodging, the SOCTUS ruled[1] 8-0 in favor of him, but specifically tailored the ruling to only him and not other draft dodgers.

[1] https://en.wikipedia.org/wiki/Clay_v._United_States#Opinion_...


The ruling wasn’t about whether churches should abide by restrictions. And it is ridiculous to frame it that way. A case like this probably would never make it to the Supreme Court. The question was whether it is discriminatory to open some non-essential businesses but keep churches closed.


But churches are open, subject to certain restrictions which also apply to secular businesses. The question is which set of restrictions they should be subject to: those for concerts and movie theaters, or those for grocery stores.


The churches were opened mid-process as I understand.


I disagree.

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.


I edited my comment to say "some non-essential businesses" to avoid implication that all non-essential businesses were opened which I didn't intend.

>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.


Also hobby lobby was not granted a stay as far as I’m aware, they had to wait for the final ruling.


Based on this reply I now can't tell if you agree with me or not.


It’s arguable that churches conduct essentially business per se, but they do provide a venue to conduct Constitutionally-protected activity.


We should be distinguishing between "essential" activities and "constitutionally-protected" activities. They are different axes with only some overlap. Not everything that is constitutionally-protected is essential, and not everything that is essential is constitutionally protected. For example, the right to food is not guaranteed by the constitution but we can probably agree that stores providing food to the public are essential, because without food we die.

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.


As we know, rights are not absolute.

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.


> If Covid-19 rules restrict religious practices more than some commercial activities I think we have a problem.

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 problem arises because the government is not supposed to judge the merit, efficacy, or importance/value of a otherwise lawful religious practice.

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.


If the governments were smart, they would not pick and choose specific activities and industries to allow and disallow, but instead simply prohibited closely packed or indoor gatherings (by whatever measurement of "closely-packed" makes epidemiological sense) and left it at that. That way, if a church wanted to stay in service they could simply figure out how to comply, like by doing it outside and 2 meters between people.

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.


Agreed. They could have made a blanket rule that set a base standard that applied to all business or orgs, including churches, and then stricter targeted rules for particular non-religious organizations if they needed to.


Should it not be the side they want the stay that had to prove irreparable harm? I see no evidence for this in the dissenting opinion.


The government can't really measure the harm caused by interfering with otherwise lawful religious practice. You and I can have our opinions but legally it isn't within the power of the government to do so. How could it? What if the interference delays a child's baptism and the child dies during the delay. For some religions this may be an irreparable eternal harm.

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"


"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.


That's the point of the 1st Amd., you do not need to justify your otherwise legal religious practice to the government. This is because one person's grave sin that leads to eternal damnation may be another person's minor inconvenience.

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.


I just find it weird that nobody is bringing up Matthew 6:5. I can hardly imagine any example of "praying to be seen by men" purer than the politicization of opening churches right now. I have this feeling like, surely the cognitive dissonance will hit any minute now?

https://en.wikipedia.org/wiki/Matthew_6:5


You are forgetting Matthew 18, 19-20:

"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.


Church services often involve singing and speaking loudly in confined spaces. Yet there's no evidence doing so is necessary to survive.

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.


I won't debate your interpretation of scripture, but it's not relevant to your last sentence which seems disconnected and unsupported to me. And palpably absurd.

Trying to convince me is definitely not worth your effort. To act like you care what I think is an indictment itself.


It's not really the Supreme Court's job to interpret a religion's sacred texts and tell the adherents that they're doing it wrong.


No, it's the adherents' job though to consider if bringing something to the Supreme Court is consistent with their beliefs.


First of all, a religious text is not relevant in us court case, even if about a religious case.

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.


To say Jesus wouldn't understand modern Christianity is presupposing the Trinity is false, isn’t it? Otherwise, Jesus is part of the tripartite godhead and is aware of everything the Tetragrammaton and the Holy Spirit are aware of, which is more than the totality of existence of space-time.

Not to make this a religious discussion, just striving for a steelman interpretation of the religious logical stance.


I’m not making an argument about Jesus but about his supposed followers. Anyway, the main point is that US law and the Bible are not connected. It’s still legal to eat shrimp and pork, and usury became legal when that was convenient.


I don’t mean to miss your point; however, to many people, US law and the Bible are connected. The Moral Majority[1] used and modern religious right use the Bible as justification for their social and economic policies.[2] It could be argued how Biblical their policies are, but to say they are not connected in many voters’ and believers’ minds is to misunderstand them and what they believe, religiously and politically.

[1] https://en.wikipedia.org/wiki/Moral_Majority

[2] https://www.politico.com/magazine/story/2015/04/corporate-am...


> they do provide a venue to conduct Constitutionally-protected activity

So does virtually everywhere in the country (speech)


They take in revenues and provide services — is that not the very definition of a business? A food bank does the same and is a business.


I agree with the spirit of what you are saying but disagree on the letter when it comes to matters of law. When church service is on, or the church is otherwise open to the public, it is “open for business” in common parlance. However, I disagree that it “does business” in the same way that any other kind of public place does. That is because the First Amendment is clear:

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.


Just to be clear, as it seems not many people actually read the ruling, this is not an injunction on gatherings, but a ruling on the restrictions imposed (e.g. only 25% capacity, maximum of 100, etc.).


The rules that were challenged were the 25% capacity and no more than 100 people rules that newsom issued recently, after public outcry that the original rules (no church until phase 3) were inappropriate. The church in question seems to have focused on the 25% capacity portion of the new rules.


How are those rules different from the Fire Marshall rules on maximum occupancy?


The church's claim is that since other businesses, such as grocery stores, don't have occupancy limits[0], that enforcing occupancy limits on churches is discriminatory.

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.

[0]: 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.


The fire marshal rules take into account the size of each building and the number of exits. Newsom’s rules subject small churches and large churches to the same 100-person cap, regardless of building size.


Fire rules take into account many factors to ensure the health & safety of the people in the building. A hard cap on attendance (it's 25% or 100, whichever is smaller, by the way) during a pandemic is another example of accounting for factors to protect health & safety.


There was more to the case than just CA issue. The even bigger point was the Illinois Governor and especially the Chicago mayor effectively banning all church gatherings for a year or more until a vaccine is developed. The case was brought by some churches that when reopened they went fully above what CDC and the law required for Walmarts, Targets etc as safety measures keeping 2 feet distance, masks, sanitizer.. And in the end this was based on the First Amendment. Congress shall make no law in respecting religious an establishment of religion or prohibiting the exercise thereof...

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.

https://chicago.suntimes.com/coronavirus/2020/5/10/21253844/...

There is so much more to the story.

https://m.facebook.com/story.php?story_fbid=1021460120197827...

https://m.facebook.com/story.php?story_fbid=1021460494447183...

https://m.facebook.com/story.php?story_fbid=1021462636128723...


The key part of the dissent is what is a comparable “business” to a church service. I think it is sports arrangement, or perhaps political arrangement, and the Supreme Court justices believe It is a supermarket and manufacturing. I’m not sure how we could find common ground or understand each other.

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.


Considering religion is protected by the First Amendment, I'm fine with erring on the side of importance. The other nuance here is that while churches might be free to open, they're also free to stay closed out of caution, and individuals are free to not go.


Sure, but everyone (at least me and the 8 people on the Supreme Court) believes the governor is allowed to impose some restrictions in a pandemic. He is just not allowed to have harsher restrictions on churches then comparable activities which seems reasonable even to me as an atheist.


The dissent explicitly lists:

> "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.


The question isn't one of importance, but of the danger to individuals from partaking in the activity. Yes, speaking constitutionally, shopping malls are less important than churches. But that doesn't matter if a church service is a religious concerts and concerts (religious or secular) aren't allowed.


It is obviously not purely a function of danger. It is a cost-benefit of danger/importance. Clearly importance is relevant to this discussion. Supermarkets are open everywhere because they are very important (vital), even though they might be a ripe vector for transmission. I would agree that on the graph of danger against importance, supermarkets are obviously going to be less dangerous and more important than church. But my point was that it's not clear where to draw the line on this graph, and even if you do have a clear line, I think church is going to be higher on the cultural importance scale than concerts or sporting events, so it could make the cut even if they do not.


Just note that shopping malls are closed in California so that is not a reasonable argument. But for example Tesla manufacturing is reopened, is that a comparable activity? I think this whole case is clearly subjective and should not be of course. It would be useful to have a general rule what a church is comparable to.


Malls are allowed to open in California, and they are opening.

https://www.sacbee.com/news/business/article242962581.html


Malls opened in Los Angeles on wednesday


> I think saying religion is equivalent to sports is pretty strange.

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's functionally equivalent to a sporting event in terms of crowds and space usage. A large group of people gather to observe something on a regularly scheduled basis.

It even has more important events that typically draw larger crowds (high holidays/playoffs).


That list is not really accurate, shopping malls, bookstores, florists, hair salons, and cannabis dispensaries are still closed I believe.

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.


All those businesses are allowed to open under the current state order. A few of them weren’t allowed until the middle of last week though.


I stand corrected it seems, it is still not happening in most of the state and not at all in Santa Clara where I live.

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.


I’m religious and attend(ed) church weekly. I think this is great news. These idiots who are still trying to gather for church are so incredibly selfish.


I don't think it's fair to say that people who make a different assessment of risks and/or have different risk tolerance than you are "incredibly selfish". Lockdown, social distancing, mask-wearing, and other related changes in behavior are all about trade-offs in the face of uncertainty.

Maybe you're right - but maybe you're wrong.


Someone could go to a church meeting in one state and get the virus and then give it to someone else who gives it to someone else who gives it to me. x1000. That is selfish. They aren’t giving a single thought for the potential ramifications of their actions on people they’ve never met. Acting in such a way that potentially many people could die, when all you would have had to do was stay home, is the very definition of selfishness.


I think you are projecting your opinion.

>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.


People shouldn't have to stay home since it is hard?! Walking thousands of miles in the winter is hard. Fleeing an invading army is hard. Living through a famine is hard. Staying at home is not hard. And if it is, learning how to do hard things is a skill that everyone should develop.


That's a valid opinion.

It could also be that things are more of a spectrum than black and white.


> different assessment of risks and/or have different risk tolerance

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.


To paraphrase a well known orthodox rabbi in the US who wrote a long letter on the topic where he rules that one should wait where he ends: "we can to wait on returning to synagogue attendence, but we can't bring back a life".


Judaism is fundamentally a religion of laws, but virtually any of those laws may be broken in order to save a life.

https://en.wikipedia.org/wiki/Pikuach_nefesh


Not "virtually any". Most can, some can't. The link lists several exceptions; of particular note is various forms of disrespecting Jehova.


I think the order was reasonable but let's remember that something lies between being forced to do something and being forced not to do something. What lies between is freedom, and it's a much larger space than the two extremes combined.

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.


[flagged]


Motor cycle riding is not particularly contagious.

Additionally, safety rules are in place to make Motor cycle riding as safe as possible for the rider and anyone with whom they interact.


I think the risk of motorcycle riding is mostly borne by the rider. If you think the reward outweighs the risk, you are welcome to ride. If you think it's too risky, you can decide to not ride. You have a great deal of control over your destiny. (There are many other risks, including risks to others, but we're ignoring those for this comment.)

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.


Riding a motorcycle is not at all similar to the spread of a highly contagious virus. Further, the style of argument where one sarcastically suggests banning a completely unrelated source of death with respect to a different topic is not conducive to productive discourse.


It is completely reasonable to take precautions to avoid spreading a virus, just like you should wear a helmet when you ride a motorcycle to protect yourself in the event that you crash.


> It is completely reasonable to take precautions to avoid spreading a virus, just like you should wear a helmet when you ride a motorcycle to protect yourself in the event that you crash.

They were both wearing helmets.


I did not say that wearing a helmet guaranteed that no motorcycle rider would ever be injured.


I thought this was the motorcycles-only synagogue too but turns out it’s just a regular one.


I lean libertarian, but there's cases where paternalistic laws make sense. For example, w.r.t. motorcycle riding, helmets are required. COVID-19 is a special case where paternalistic laws (albeit technically these orders aren't laws) seem proportional. A reduction in church capacity doesn't really seem like government overreach in the middle of a pandemic; especially because buildings already have (fire-department imposed) capacity limits.


Helmets aren't required in all US states (not sure why people don't wear them anyway, but some people don't).


> which seems strange but I guess ones life is their own business

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.


Right, sorry, comment edited while you were responding.

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.


Because in the US, states get to make some rules, and the federal government gets to make some other rules, and each is protective of their rights and prerogatives as enumerated in the US constitution, as amended. Look into amendments 9, 10, 13, & 14 for more.

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.


Yes thanks, I'm aware of how the federal system works.

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.


It would be nice if churches were a moderating voice but they often do the opposite.


Please don't step into religious flamewar on HN.

https://news.ycombinator.com/newsguidelines.html


From what I saw of Italy, the Pope was perfectly cool with waiting to congregate.


Not a shock. Paraphrasing Scalia who wrote years ago, the context was about the 2nd, but his point was there are no absolute rights.

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.



The ruling has not been issued. This is about an injunction before the ruling.


arent the riots and protest much greater risk of spreading than a church service? why aren't police breaking them up?



Thank you. Maybe this should be the top level link? Unencumbered by the WaPo's editorializing and paywall.


Sounds fine to me, mod (aka dang) would need to edit the URL and decide on the title too.


Ok, we'll switch to that from https://www.washingtonpost.com/politics/courts_law/supreme-c....

I think the title is probably worth keeping.


[flagged]


This is way more nuanced then your argument and all 9 Supreme Court justices would agree to this. For example fire hazard laws apply to churches even though it would seem to be in violation of your quote. Say you have to argue how this is related to relevant law, and why the church would be irreparably harmed by waiting until the case comes up later presumably this year.


Congress has not made any law prohibiting the exercise of religion.

rantwasp 40 days ago [flagged]

probably this will rub some people the wrong way but, it amazes me how people put fiction before their well being.


No religious flamewar on HN, please.


This case is harder than most because this is so communicable.


It is really going to be a farce when the same jurisdictions that so zealously enforced the lockdown against churches, the same governors that threatened and said vitriolic things about small anti-lockdown protests, now refuse to enforce those same rules against the people organizing and involved in these mass protests.


It will be, but that’s not super relevant to this case. California didn’t enforce restrictions with any particular zeal and Newsom didn’t get mad about the lockdown protests.


I am not a lawyer, just an IT guy trying to use logic: the rights in the US Constitution and amendments don't exist. They are not worth the paper they are printed on, because reasoning like this can kill each and every one with the death of a thousand cuts: "However free the exercise of religion may be, it must be subordinate to the criminal laws of the country, passed with reference to actions regarded by general consent as properly the subjects of punitive legislation" (source: Wikipedia article Free_Exercise_Clause).

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.


You’re missing the core limitation on the constitution, it’s extremely short limiting precision. Freedom of speech is not about standing on a street corner with a megaphone, it’s about the content of the message. Where that line is between message and method is complicated, but that’s the core issue being decided in free speech issues.

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.


>Please explain me where I am wrong in terms that use logic […]

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 [1] 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.)

[1]: https://en.wikipedia.org/wiki/Employment_Division_v._Smith


> That reasoning tells that a law (the "criminal law") beats the Constitution by putting restrictions on a Constitutional right.

There's a lot to parse in your post, but I would strongly suggest reading J.S. Mill's On Liberty[1]. In it, Mill describes (what is now known) as the Harm Principle[2]. 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] https://www.gutenberg.org/files/34901/34901-h/34901-h.htm

[2] https://plato.stanford.edu/entries/mill-moral-political/#Har...


Do I need to read a book of over 220 pages to solve a simple logic problem? This is the problem:

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.


Yes, you do, but here's a short primer.

https://www.dummies.com/education/history/american-history/h...

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.


So there is no logic explanation of the problem. I am fine with that answer, no need for more.


>So there is no logic[al] explanation of the problem.

Logic isn’t even the correct framework to apply.


> A law cannot disobey the Constitution.

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.


Consider a hypothetical religion that has worship which consists of something criminal (i.e. adherents kill for their god or something). I don't know the legal justification, but their freedom of religion would surely be trumped by my right to life, if an adherent tried to murder me :)


You completely failed to understand my comment: if the Constitutional freedom of religion is too broad why do you accept the Constitution to be ignored with such decisions instead of fixing the problem, the Constitutional text? In your example it is clear the problem is the Constitution text being too broad/generic. SCOTUS is not there to rewrite or cut the text, people voting can do that.


There are many parts of the constitution both parties would like to improve but that is not possible in the current environment.

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.


I think a constitution is meant to be broadly worded so it would not have to be changed often, though. Are you proposing to make the constitution just a regular old law?


I am not looking for a solution for a problem that is not mine. I am looking to understand how people see the Constitution is ignored (not sure what is the right term) and feel fine about that. My line of thought is that everything in the Constitution can be ignored in the same way, so it is completely worthless and no right does really exist because it can be revoked by a law or government statute at any point. People loosing rights is a matter of principle, I could not care less about churches in California, I am not affected in any way.


It is not ignored, but there is a long practice of interpreting it and defining exactly what it means. You have to spend some effort here in understand it and how it has changed through history instead of expecting to be able to just read the law and fully understand what it means.


Then the law is a failure; if it is written in such a way that regular people cannot understand it (because it does not mean what it says?) and it needs to be "interpreted", then the law failed because it is not what it was written, but what the people want to interpret it based on their own interests: this leads to corruption.

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


I think your point is basically that you want human law to be as clear, definite, unambiguous as scientific theories or mathematical proofs should be. I think this makes you an extremist legal formalist/textualist. Firstly, I think your reasoning is slightly fallacious: it seems you may be implicitly concluding that features that are useful for mathematics and science would be useful for law, too, just because of their effectiveness when applied to math or science.

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:

* https://en.wikipedia.org/wiki/The_Common_Law_(Holmes)

* https://en.wikipedia.org/wiki/Philosophy_of_law

* https://en.wikipedia.org/wiki/Jurisprudence

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.


The language of the First Amendment is not as broad as you make it out to be. You are arguing a straw man that doesn't exist.


I quoted the text already a few times; it is broad enough to include free practice. Do you disagree?


Yes, I disagree.

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.


So what is the meaning of "free exercise"? What was meant 230 years ago? In plain English, that text was not written by aliens in a rare Klingonian dialect and "interpreted" by Ferengi looking for some profit$$$.

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.


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.


The Constitution protects religious beliefs not religious practices. Restrictions on religious practices was considered acceptable.

Similarly, the content of speech is protected, but the action performed by that speech (for examine, incitement) is not.


False: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;". "Free exercise" = "free practice" for the layman.

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.


You are making strong statements about things you need to read up more on. The congress and others can put limits on religious practice in many ways. The most relevant example here is that building and fire codes apply for churches.


I quote a text, I am not making statements. What is wrong with that?


In a nutshell: religion back then strictly meant beliefs but not actions. (Thomas Jefferson has a letter discussing this with one of the members of the BOR convention.)

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.)




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