How is the government to decide what meetings are "essential"?

Liquor stores may be "life-sustaining," but houses of worship are "soul-sustaining."

|The Volokh Conspiracy |

Yesterday, a per curiam Sixth Circuit panel (Sutton, McKeague, and Nalbandian) decided Maryville Baptist Church v. Beshear. (Eugene blogged about it earlier.) This decision halted the Kentucky governor's prohibition on "drive-in" church services. The Governor's policy, the court found, violates the Kentucky Religious Freedom Restoration Act and the Free Exercise Clause. I commend this opinion on several levels.

First, the decision approaches this difficult issue with the sobriety and respect it deserves. There was no hyperbolic rhetoric or accusations of bad faith. Indeed, the Court credited the Governor with the presumption of regularity:

We don't doubt the Governor's sincerity in trying to do his level best to lessen the spread of the virus or his authority to protect the Commonwealth's citizens.

The panel found that the Governor was doing his best to prevent the spread of an unprecedented epidemic.

Second, the court only decided issues that it needed to resolve. Specifically, it declined to resolve the validity of the in-person service ban:

The balance is more difficult when it comes to in-person services. Allowance for drive-in services this Sunday mitigates some harm to the congregants and the Church. In view of the fastmoving pace of this litigation and in view of the lack of additional input from the district court, whether of a fact-finding dimension or not, we are inclined not to extend the injunction to inperson services at this point. We realize that this falls short of everything the Church has asked for and much of what it wants. But that is all we are comfortable doing after the 24 hours the plaintiffs have given us with this case. In the near term, we urge the district court to prioritize resolution of the claims in view of the looming May 20 date and for the Governor and plaintiffs to consider acceptable alternatives. The breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom. But it's not always easy to decide what is Caesar's and what is God's—and that's assuredly true in the context of a pandemic.

The last sentence had a subtle, but effective reference to religion.

Third, the decision provides reasoned consideration that people of all persuasions and faiths can relate to. Consider this passage:

The Governor insists at the outset that there are "no exceptions at all." Appellee Br. at 21. But that is word play. The orders allow "life-sustaining" operations and don't include worship services in that definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

The contrast between "life-sustaining" and "soul-sustaining" is poetic and persuasive. This crystal-clear prose explains with precision why the government's policy is internally inconsistent. (Though the unsigned decision is per curiam, I would bet anyone a buckeye this language came from Judge Sutton's chambers). Why can some people meet in groups with social distancing, but not others? The government must make a subjective judgment about what is "essential" and what is not. For example, the Pennsylvania Governor determined that making marshmallow peeps was "life-sustaining" but selling firearms was not. (This policy was thankfully reversed.)

The Sixth Circuit tears apart Kentucky's policy:

Assuming all of the same precautions are taken, why is it safe to wait in a car for a liquor store to open but dangerous to wait in a car to hear morning prayers? Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave delivery woman but not with a stoic minister? The Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.

And why does the state trust some professions, but not the clergy to practice social distancing?

Keep in mind that the Church and Dr. Roberts do not seek to insulate themselves from the Commonwealth's general public health guidelines. They simply wish to incorporate them into their worship services. They are willing to practice social distancing. They are willing to follow any hygiene requirements. They are not asking to share a chalice. The Governor has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same. If any group fails, as assuredly some groups have failed in the past, the Governor is free to enforce the social distancing rules against them for that reason.

If people can congregate, elbow-to-elbow on an airplane, they should be able to do the same in a house of worship.

Moreover, the state cannot dictate alternatives that the house of worship can adopt.

Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when "two or three gather in my Name." Matthew 18:20; see also On Fire Christian Ctr., Inc. v. Fischer, No. 3:20-CV-264- JRW, 2020 WL 1820249, at *7–8 (W.D. Ky. Apr. 11, 2020).

Not all faiths can use Zoom. Certain Jewish groups will not use electricity during the Sabbath and other holidays. It is simply impossible for them to live-stream a Passover seder or the Kol Nidre service during Yom Kippur. And there are some rituals that can only be performed with a quorum of ten, know as a minyan.

Marc DeGirolami provides the Catholic perspective at Mirror of Justice:

Consider religious observance. If one's view is that all of the true goods of religious observance can be obtained individually, at home, in solitary prayer in front of a screen, then one will think that distinguishing between churches and liquor stores–treating the goods of the human activities that these places foster unequally–is perfectly justified. But if one's view of the true goods of religious observance is very different, then one will not accept these arguments.

Marc also draws attention to a jarring video from Italy. A police officers interrupts a mass, and tells the priest to stop the service, and disperse his parishioners. At the time, there were 14 people, who were spaced out in a huge church. Marc relates that the government had planned to re-opened certain businesses, including museums. But not churches.

The dialogue is in Italian, but you can follow along. The priest tells the officer, "All right, I'll pay the fine, or whatever there is to pay." The officer says people can watch the live-stream. The priest replies that his parishioners cannot receive communion online.

Zoom may be an answer to online education. But it is not a replacement for deeply held religious practices. Thankfully, laws like RFRA ensure that the government cannot substantially burden free exercise, even if it acts with purported neutrality. I hedge, slightly, because often a policy of neutrality is premised on a secular understanding of what is "life-sustaining" and what is "soul-sustaining." For many Americans, what is "soul-sustaining" is "life-sustaining." A house of worship is far more essential than a liquor store.

Update: I corrected one point above: museums had been scheduled to re-open, but had not yet opened when the video was filmed.

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  1. Governor is a democrat. Of course he was doing it in bad faith. One thing this pandemic has shown the public is that liberals love themselves a power trip. Especially if it is banning Christians.

    1. Do you really have such a blinkered view of people who disagree with you? You’ve basically said that for half the country (or 30% if you don’t count people who lean left) you assume they act in bad faith.

      I mean from just doing a Google search it looks like Beshear is a practicing Christian.

      It’s like if I assumed Republicans were only for banning gay marriage because they hate liberals. It’s just a limited way of viewing the world.

      1. Leftists, not liberals, there is a difference.

        1. Dude said Democrats, Ed.

          1. “One thing this pandemic has shown the public is that liberals love themselves a power trip.”

            1. Jesus, Ed, read the first two sentences.

              Governor is a democrat. Of course he was doing it in bad faith.

              What the heck is wrong with you?

              1. What the heck is wrong with you?

                Problem with answering: there’s a character count limit on comments here.

          2. So now you are going to start quoting people accurately?

      2. Yes. The lefties have been dreaming of breaking the egg called the United States to make their socialist omelette for decades.

        And now they’re putting the evil, sinister plans they’ve been talking about all this time into motion.

    2. Your comments would come as a huge surprise to the millions of liberals who are also earnest Christians.

      1. A lot of Nazis purported to be Christians…

        1. I’m not sure whether your comment is more stupid for (a) comparing liberals to Nazis or (b) implying that liberals aren’t real Christians. Whichever, this is easily one of the dumbest comments I’ve seen here, or anywhere.

          1. Check all of his other comments?

          2. Inflammatory, perhaps, but I am tired of leftists presuming to speak to my religious views. I don’t speak to theirs, and in return, I ask them not to speak to mine. And I presumed that people would know what the word “purported” meant, and hence the distinction I was making between Nazis and Leftists. I thought…

            Both the UCC and CCCC are Congregational Christian Churches, but they are very different. Etc….

            1. But… no one here is speaking to your religious views, and your comment was entirely aimed at speaking to the legitimacy of the views of “leftists”.

            2. And by any reasonable definition, the UCC and the CCCC are both Christian denominations. So what’s your point?

              The concept of “Christian” takes in some people who are very liberal, and some who are very conservative, both theologically and politically. Unless, of course, you’re making the no true Scotsman argument that only your particular flavor of Christianity is real Christianity.

              1. One should not be able to use the power of the state to tell the other what is or isn’t essential. That’s what it means not to have an established church.

                The fact that Bashear is a Christian is not a defense against allegations he is violating the rights of other Christians. He doesn’t get to define their theology.

                1. He’s not defining their theology. He’s saying it’s a danger to the public health for them to meet. Disagree on the public health issue if you like but their theology has nothing to do with it.

                  1. But a difference in theology does not justify the leftists dismissing the theology of others.

                    I have Jewish friends who keep Kosher and those who don’t. I may be a lily-white WASP but I’d be rather pissed if those who don’t were to use the power of the state to preclude those who do from keeping Kosher on the grounds that they don’t.

                    Two months into this purported “emergency”, I’m having trouble with the blanket “public health” excuse.

        2. What’s with, “purported?” SCOTUS says that if they say they are Christians, they are.

          1. I know it isn’t fashionable to defend Ed, but SCOTUS defines how the government may determine religiosity. You, me, Ed, and the rest of the non-government actors hanging around here aren’t constrained by its legal dictionary when expressing what we think it means to be a Christian.

            1. VOR, we can have an interesting theological discussion about who is, and is not, a Christian. But please recall how this specific discussion actually started.

              The claim was made that this is an attempt to screw over Christians, which is patently absurd, given that the governor who signed the order is himself a Christian. And even if you don’t think he’s a real Christian, however you define the term, he thinks he is. So there’s no reason why he would do something to screw over Christians.

              1. The Nazis thought they were Christians.
                I don’t, and I hope that you don’t, but that’s irrelevant.

                As is what the Governor thinks he is — his theology is not a defense.
                Not unless you want the state determining who is and who isn’t a Christian, and that’s a religious purity test that I don’t want to have!

              2. Krychek, I think the original claim was broader, more like “liberals love to ban Christians”, which is even more absurd. But I wasn’t responding to that comment, I was responding to Stephen Lathrop’s assertion that the Supreme Court has somehow made it improper to be skeptical of someone’s self-professed religion. For anyone who is not acting on behalf of government, it just ain’t so.

                1. Ah. Sorry, I misunderstood your comment. In that case, I agree with you.

            2. “You, me, Ed, and the rest of the non-government actors hanging around here aren’t constrained…”

              Dr. Ed isn’t constrained by anything he says, because he lives in a fantasy world. But you can’t defend him even on these grounds, because he’s now said you’re wrong that he isn’t constrained:

              “I don’t speak to theirs…”

              Of course he’ll just make up some anecdote about why this wasn’t true and how it fits with your defense, somehow.

    3. It’s not that. It’s likely more of a circular echo chamber where only liberal-leftist views are heard, and they self-reinforce without any real contrary opinions. And it leads to bad choices.

      1. You mean like Fox News and other conservative media do with conservative views?

        1. Yep, exactly like that.

        2. See, here’s the thing. “Conservatives” are by default exposed to liberal views, through the entire rest of the mainstream media, most of Hollywood, and more. Even Fox News has a large liberal component. In addition, “Conservatives” rarely live in an area or social bubble which is entirely conservative. Most voter demographic patterns bear that out.

          The opposite isn’t really true at all. I’ve seen many examples of it.

          1. I’ve watched enough Fox News to know that you are far more likely to see conservatives represented on CNN talking heads panels than you are to see liberals on Fox.

            And it’s not just viewpoints; it’s also facts. On those occasions on which it is possible to independently confirm which radically different set of facts — those presented by conservative media and those presented by liberal media — is true, in my experience, the mainstream media is usually the one telling the truth. If you want an example, Fox spent most of the 2016 campaign claiming the economy was terrible so it would make Obama look bad, whereas in truth Obama had a great economy for most of 2016. The cold, hard numbers — unemployment, GNP, state and local tax revenues, consumer confidence — all showed a healthy economy. But you’d never have known it from watching Fox.

            1. Fox has 3-4 million viewers. Its a tiny fraction of conservatives.

              https://www.cheatsheet.com/entertainment/how-many-people-actually-watch-fox-news-in-america.html/

              “cold, hard numbers — unemployment, GNP, state and local tax revenues, consumer confidence — all showed a healthy economy. But you’d never have known it from watching Fox.”

              Unlike you, I don’t watch tv news much, including Fox. But its unlikely that they didn’t report the “cold, hard numbers”, its just that their opinion people spun it a different way than you liked.

              “in my experience, the mainstream media is usually the one telling the truth”

              LOL. No one expects you to say anything else.

              1. Bob, I at least have gone to the trouble of attempting to independently verify which set of claimed facts are correct when it has been possible to do so. Have you?

            2. It’s not “talking heads panels.” It’s the media organizations as a whole. And it’s a self-reinforcing bias, that reflects throughout the entire media complex, and it shows in how they tell the news, what stories they pick, what gets emphasized, and what does’t. It’s not even conscious half the time.

              Read the below polling, if you don’t believe me. The media doesn’t think they’re liberal. They think their viewpoints are “moderate.” Except, according to the polling, they basically, reflexively, are quite liberal when compared to America as a whole.

              https://www.mrc.org/special-reports/liberal-mediaevery-poll-shows-journalists-are-more-liberal-american-public-%E2%80%94-and

              1. Better, look at who now owns FOX News — and he is way to the left of his father….

            3. Finally, you like “cold hard facts” on the economy, and you specifically mention “GNP” (IE, GDP) for 2016 as a market that it was “great”.

              GDP growth in 2016 for the US was just 1.57%. In the last 25 years, there have been just 4 years with worse GDP growth. 1991, 2001, 2008 and 2009. So, in terms of “cold hard facts,” how can you say the economy was “great?” with the 5th worst GDP growth in 25 years? Why did you think that?

              1. Because no one number standing alone gives us the entire picture. All of those numbers are inter-related. You don’t say someone is in terrible health merely because his blood pressure is slightly elevated if everything else is fine. And, if you look at all the numbers for 2016, Obama had a pretty good economy. Probably would have had an even better one if the GOP Congress had worked with him instead of against him.

                As for polling, if you look at individual issues, like single payer health care, abortion rights, gay marriage and environmental protection, what you consistently find is that most Americans have generally liberal views. Yet the right has succeeded in turning the word “liberal” into a dirty word, in one of the best sales jobs of my lifetime. So I wouldn’t harp too much on polling data if I were you.

                1. Consumer confidence for 2016 was about average, at best, for the 25 year period, with it being the best year of Obama’s tenure. GDP growth was in the lowest 20% for that 20 year period. Unemployment was at 4.8%, but the labor force participation rate was at its all time low (it has gone up since 2016). State revenue was at 8.01% of GDP in 2016. That represents the third worst year for state revenue in the 25 year period.

                  So, the summary of all that is…what exactly? 5th worst GDP gain in the last 25 years. 3rd worst state revenue as a % of GDP in the last 25 years. Average to below average consumer confidence for the 25 year period. And average unemployement (11th in the 25 year list), but with the lowest labor participation rate in the entire record.

                  But you say the economy was “pretty good” or “great” based on “the cold hard facts”. With bad GDP growth, bad state revenue generation, average to below average consumer confidence, and average unemployment.

                  Maybe, just maybe, Fox News isn’t the one lying. If you look at the cold hard facts.

                  1. And why would I lie when, as I pointed out, those numbers are readily available on google for anyone to find? If I were inclined to lie, you think it wouldn’t occur to me that anyone who disagrees with me will spend five minutes on google before calling me out?

                    I just did spend five minutes on google. The situation in 2016 was that consumer spending was up, the unemployment rate was down, people voluntarily working part time was up and people involuntarily working part time was down, and the stock market was up. It wasn’t Clinton’s second term by any means, but neither was it the complete basket case Fox made out (which reporting you can also find on google or youtube). And that’s even before factoring in that Obama inherited an economy that was a complete basket case, so the fact that he was able to raise those numbers at all, especially with a Congress that opposed him at every step, is really pretty good.

                  2. “So, the summary of all that is…what exactly?”

                    That you’re economically illiterate?

                2. “As for polling, if you look at individual issues, like single payer health care, abortion rights, gay marriage and environmental protection, what you consistently find is that most Americans have generally liberal views.”

                  I’d read those polls with a really critical eye. Asking ‘do you think the govt should provide free health care to everyone’ vs. ‘do you support raising taxes so the govt can provide free health care to everyone’ will probably get very different answers. And most Americans are very media-bubbled, so they only see the slanted polls their side does, and so both sides are convinced most people agree with them. You are a prime example of that.

                  1. You have a point that how a poll is worded makes a difference. But you’ve assumed, without offering evidence, that taxes would need to have been raised; if not, there would have been no reason to include that factoid in the poll. Western European countries with single payer insure 100% of their population for about 10% of their GDP; the US spends about 16% of its GDP on health care without insuring 100% of the population. The two health care systems are not an apples to apples comparison; there are differences between them. But still, the fact that the Europeans get better results for less money suggests that had single payer been seriously considered, there could have been ways to do it without raising taxes.

                    And you have no idea what polling data I look at, so stop telling me I’m a prime example of anything. You sure do love making fallacious claims about what I’ve said.

                    1. Well, you said: “As for polling, if you look at individual issues, like single payer health care, abortion rights, gay marriage and environmental protection, what you consistently find is that most Americans have generally liberal views.”

                      And that’s only true if you’re only looking at the polling in only one of the bubbles.

                    2. No, that’s not true if you only look at bubble polling. There’s majority support for those positions even without using loaded language in the question.

                      If you want to talk about a specific poll with language you find objectionable feel free to cite one. I never said there are no polls that use loaded language; the ones you’re talking about do exist. But I’ll probably be able to find another that got the same results without using objectionable wording.

                    3. “But I’ll probably be able to find another that got the same results…”

                      Sure. Heck, if it’s a topic I’m interested I can provide you with studies and polls that support your side. Or I can provide you with the studies and polls that support the other side, because I go to the trouble to find both of them. And when I do, I don’t just skim the abstract to see if it agrees with my preconceived notions before adopting it as gospel, I give the data and methodology a careful look – and I have a stats degree, so I’m not a complete amateur when doing so. And like as not, I find cherry picked data, questionable analysis, and so on.

                      I get why partisans – from both sides – push their slanted studies. I just don’t get why they think doing so is persuasive to an unbiased observer.

                    4. You’ve yet to offer any actual evidence that mine are slanted.

              2. I cannot believe the largest GDP in human history is not growing by 20% every year. It is outrageous that the US is getting beaten in GDP growth by Libya, Eritrea, and Rwanda, and has nothing to do with the facts that those countries have much lower GDPs and therefore more room to grow, or that there is a theoretical limit on human economic productivity. If only we could sustain the 7% growth of 1984–which of course had nothing to do with the economic plunge of 1982–we’d probably be at seventy million quadrillion gazillion GDP right now. Thanks, Obama.

            4. And you probably believe that Sarah Palin said she could see Russia from her front porch.

              No, it was Tina Fey on SNL….

    4. I really don’t think it’s as simple as all that, since there are still plenty of what used to be called Social Gospel types in the Democratic Party.

      https://sojo.net/about/about-sojourners

  2. “ A house of worship is far more essential than a liquor store.”

    A physically dependent alcoholic denied access to otherwise easily obtainable medicine will go through terrible withdrawal symptoms that may well result in death (and certainly will require hospitalization). Liquor stores are considered essential for the same reason pharmacies are.

    1. I suppose that if alcohol is medically necessary it could be made available by prescription – perhaps at the pharmacy – like in Ye Olde Days.

      1. “During Prohibition, Your Doctor Could Write You a Prescription for Booze

        “Take two shots of whiskey and call me in the morning”

        https://www.smithsonianmag.com/history/during-prohibition-your-doctor-could-write-you-prescription-booze-180947940/

    2. Then they should get their “medicine” delivered to their house or made available by prescription.

      1. But it’s O.K. that supermarkets are open?

  3. “But he answered and said, It is written, Man shall not live by bread alone, but by every word that proceedeth out of the mouth of God.”

    Thus the question of weather religious services are more essential than secular goods, is itself a religious question, which is off limits for the courts.

    1. “a religious question, which is off limits for the courts.”

      That’s incredibly naive, since religion is mentioned in the Constitution ad there have been innumerable cases regarding religion.

    2. It’s also off-limits to secular governors and legislatures, and also in reverse. That is the point here. A governor cannot legitimately decide that religious gatherings are inherently less worth or less important than secular gatherings.

      1. The comparison that cannot be avoided is between the harm of foregoing a certain kind of activity vs the harm of allowing it in the context of a pandemic. This is true regardless whether the activity is religious.

        If you believe that religious activities should be inherently exempt from such comparisons no matter how infectious and lethal the pandemic, you are being foolish. If OTOH you agree that a pandemic could be so severe as to justify restrictions of religious gatherings on public health grounds, then you have just made the kind of comparison I say cannot be avoided.

  4. Why can someone safely walk down a grocery store aisle but not a pew?

    Perhaps a brief interview with an epidemiologist could be of help. As I recall, epidemiologists have consistently stressed the duration of a particular exposure as a factor in promoting contagion. Perhaps there is a difference between proximity lasting seconds and proximity lasting more than an hour. In the context of a pandemic emergency, why is any such distinction even for a court to evaluate, let alone decide?

    If people can congregate, elbow-to-elbow on an airplane, they should be able to do the same in a house of worship.

    Why doesn’t that lead to shutting both down, to improve public safety, instead of opening both up, to degrade public safety? Given that an evaluation of public safety lies at the heart of the assessment, why does a court have any authority at all?

    Sure, the Church might use Zoom services or the like, as so many places of worship have decided to do over the last two months. But who is to say that every member of the congregation has access to the necessary technology to make that work? Or to say that every member of the congregation must see it as an adequate substitute for what it means when “two or three gather in my Name.” Matthew 18:20;

    Why cite scripture? If courts are not competent to evaluate religious doctrine, and should not do it—as the Supreme Court has rightly decided—why is it availing to cite scripture to seek an exception to civil authority? It cannot be correct that a court cannot take religious doctrine into account to limit religion according to generally applicable laws, but must take religious doctrine into account to privilege religious practices which civil authorities have decided are dangerous during an emergency.

    Thankfully, laws like RFRA ensure that the government cannot substantially burden free exercise, even if it acts with purported neutrality. I hedge, slightly, because often a policy of neutrality is premised on a secular understanding of what is “life-sustaining” and what is “soul-sustaining.” For many Americans, what is “soul-sustaining” is “life-sustaining.” A house of worship is far more essential than a liquor store.

    To avoid establishment of religion, it is indispensable that evaluations of the sort mentioned, which go to the heart of the question of the power to enforce generally applicable laws, be premised only on secular understandings. From a secular standpoint, the last sentence is pure religious blather, which ought to have no place in a legal argument.

    Blackman’s argument is an attempt to push America’s constitutional expectation of secular government down a slippery slope to destruction. He is moving away from the constitutionally valid notion behind RFRA laws—that government should not burden religion needlessly—to assert instead that RFRA laws mean that the interests of secular government and the interests of religion must be balanced against each other. That is establishment of religion—and of course that has always been the objective religionists hoped for from RFRAs.

    1. ” He is moving away from the constitutionally valid notion behind RFRA laws—that government should not burden religion needlessly—to assert instead that RFRA laws mean that the interests of secular government and the interests of religion must be balanced against each other. ”

      The second reason is why the RFRA laws were established in the first place. They were passed because of Employment Division v. Smith…

    2. The judge’s arguments reinforce the importance of the First Amendment where The People set the rules for religion.

      You sit there and say religious references are not allowed, or are not to be considered with general laws and entanglement. This is completely backwards.

      Banning is monstrous entanglement that stomps all over a direct command by The People. Government cannot second guess the validity or importance of religious beliefs, so it is completely proper to quote some as examples of why.

    3. RFRA laws mean that the interests of secular government and the interests of religion must be balanced against each other.

      That is literally what RFRA laws are for. That’s all they’re for.

      Your understanding of our system seems closer to French laïcité than to American separation.

      1. DN, once you have completed the balancing, on behalf of empowering some particular religious doctrine, practice, or privilege to infringe generally applicable laws, how are those preferred parts of religion not established?

        1. From Justice Ginsburg’s unanimous opinion in Cutter v. Wilkinson:

          Foremost, we find RLUIPA’s institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. […] Furthermore, the Act on its face does not founder on shoals the Court’s prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.

        2. Because that’s not what establishment of religion means?

  5. How is the government to decide what meetings are “essential”?

    The 1A makes clear that, generally, the government is not to decide. But once you concede that during a public emergency the government may decide, then the 1A equally demands that the decision be made entirely on secular principles, not religious ones.

    1. lathrop….do you have an actual position? You do, or do not think the Governor was correct in his decision?

      I thought the Governor was wrong.

    2. He’s questioning your premise, that trodding on the First Amendment is conceded. If permissable, it may not be cavalier, and examples of sincere and vital religious beliefs waved away by your conception are appropriate.

    3. After two months, it’s not an emergency anymore…

      1. Unusually ignorant, even for you.

        1. Define “emergency”….

          1. An urgent need for assistance or relief.

            1500-2000 Americans are dying from this every day, with the numbers expected to reach 3k per day by early June.

            You are a lying, ignorant piece of shit, and you deserve to be one of the casualties.

  6. Kentucky has a RFRA, but according to the court, even if it didn’t it would still have to meet the compelling interest/least restrictive alternative test. As I understand it, this is because the governor’s decree has so many (secular) exceptions that it doesn’t qualify as a “neutral, generally applicable” law, which is the kind of law on which the *Smith* decision was premised.

    Perhaps if some student or professor researched all the lower-court opinions on this issue, (s)he would find an attempt by lower-court judges to blunt *Smith’s* impact – denying laws the coveted status of neutral/generally applicable and thus subjecting the laws to searching scrutiny when they interfere with religious practice.

  7. A good decision by the sixth Circuit.

    In other news, I foretold that certain states would begin arresting protestors who protest the shutdown because they “violate social distancing” and other items.

    California has now begun arresting protestors about the shutdown. For violating the shelter in place order.

    1. This is rapidly approaching the point of no return…

      1. Luckily, no it’s not. Because we have the Federal system of government, and the US Federal Government, which is being eminently sensible, and more than willing to reign in the authoritarian responses from certain states.

        But voters should take note of those governors with more authoritarian responses, and think strongly about recalls for these mini-dictators.

        1. If historians can find one good thing about Trump, it will be that he resisted calls for a nationwide lockdown and left it to individual states. That’s too much power. People act like the collapse of democracies and freedom is due to sneaky coups, when it’s just emergency powers granted to cheers and applause, that are never given up.

          1. It is literally one of the best things, and it alone is a reason to prefer Trump over a Hillary or Biden. Resisting the call of dictatorship.

            1. Because firing anyone who disagrees with him or demonstrates his stupidity isn’t at all something a dictator would do.

              How many Cabinet-level positions have been sacked during his administration? How many Inspector Generals?

              All for daring to speak the truth about his corruption and incompetence.

              1. No…arresting protestors because their very protest is violating your executive order is something dictators would do…

                1. Will do — and then what happens?

                2. So the behavior that is consistent with authoritarianism you dismiss in its entirety in favor of pointing out something he has yet to do, pretending that nullifies his actual behavior over the last 3 years?

                  Seems to me that even if I asked you to open your eyes, you’d only come back and report that everything is brown.

        2. Even still, we’re rapidly getting beyond the time of “no harm, no foul” — these Governors are not going to be able to “save face” even to the extent that George Wallace did standing at the schoolhouse door. The Feds are going to have to stomp on people, and that is going to get nasty.

  8. While I agree that the “life-sustaining” vs “soul-sustaining” language is very poetic, as a factual matter it’s a false distinction. Emotional/spiritual health is a lifestyle factor that is strongly correlated with physical health and longevity. It’s as important as exercise and good diet. For those who meet their emotional/spiritual needs through religion, it is literally life-sustaining.

    1. I know I don’t have to explain to you why the “literally life-sustaining” part does not follow from “correlated”.

      1. Unless you’re going to limit your definition of “life-sustaining” to the provision of oxygen, heat in winter and the bare minimum of calories, the “literally” part of “literally life-sustaining” is irrelevant. Literally no one uses the term that way in the context of the COVID lockdowns.

        1. You’ve held yourself out a science-minded person. I think you’re an engineer? In your view do correlations prove causation?

          1. You mean ice cream consumption doesn’t cause hurricanes?

          2. Physicist by training, actually. And no, correlation does not prove causation. Correlation can, however, be evidence in support of it.

            We also have to focus on the standard of proof appropriate to the discussion at hand. My claim is that emotional/spiritual health is as life-sustaining as exercise and good diet. Can you “prove” that eating blueberries is life-sustaining? No, but you can show good correlational evidence that a balanced diet is good for you. The evidence for making sure that your emotional/spiritual needs are met is equally strong.

            In medicine, there is almost never “proof” as logicians define it. There are only high degrees of confidence based on repeated observations.

            1. “In medicine, there is almost never “proof” as logicians define it. There are only high degrees of confidence based on repeated observations.”

              Right, but to overcome that very high hurdle of proving causation from correlation, you have to have some causal theory that itself can be tested. There is at least a causal theory as to why “a balanced diet” (however defined) leads to good life outcomes, and is not just correlative hanger-on behavior of people who are healthy for some other reason.

              There can be no scientific, causal theory about the “life-sustaining” effects of “spiritual health” because it appeals to a thing that cannot, by definition, be measured. We can’t measure the “spiritualness” of humans, isolate confounding factors, and then emerge with a causal theory, because the first premise is impossible to satisfy. You might be able to show that people who attend church have better life outcomes than people who don’t, but you’d still need a causal theory. Are people eating blueberries in church? Do crosses emit ultrasound waves that encourage good bone growth? Does prayer kill cancer cells or at least slow their growth? Now we’re getting somewhere, because those are approaching testable theories. The problem is despite decades of testing there’s no evidence that “spiritual health” however defined causes good life outcomes when you isolate confounding factors. Worse there’s precious little by way of theory to even support them.

              Unless you have something in mind, the “standard of proof appropriate” for a discussion of the “life-sustaining” causal effects of “spiritual health” is on you, as it is on anyone who makes a causal claim about anything, ever, in the entire history of human kind. Any other standard would be ludicrous and unscientific. Is it up to me to rebut the claim that volcanoes are caused by Vulcan’s anger at Venus? What would the evidence be, exactly? And if your theory remains in the metaphysical world (“spiritual health”) or what moment would any physical explanation I give be? You’d just say of course you didn’t find Vulcan when you dug into Mount Etna, and of course you think it’s caused by tectonic plates. Hello, Vulcan is a God, he was hiding from you and he uses the tectonic plates at his forge. Duh.

              I think you should begin by telling us what you’re causal theory is about the “life-sustaining” effects of “spiritual health”. If it’s something physical (like connection with other human beings, active lifestyle, clean living, etc.) the claim is going to become rather unremarkable and of course not dependent on church attendance, at all. If you appeal to a metaphysical power, there’s nothing left for us to discuss. But if you’re going to insist that every correlation is good enough to prove causation unless I disprove the causation, you’re asking me to prove a negative. Which is impossible, both theoretically, and practically since, as you note, “there is almost never ‘proof’ as logicians define it.”

  9. What are the limits on governors police powers -at what point would courts step in , in a broader sense? Is there some death rate etc that would affect this? Can a pro life governor ban abortion to save lives ? And can a 2nd amendment restrictionist, ban guns for the same reason? Or are these powers solely reamlated to plague etc

    1. In theory, every emergency power the governor has must be authorized by the legislature and is limited by the state (and federal) constitutions and sometimes by statutes like RFRAs. So (theoretically) no flat-out gun or abortion bans.
      In practice, the statutes are usually so broad that the contours of the powers have to get fought out in court and are limited by what the legislatures and courts (and people) are willing to put up with.
      In my state, the legislature thinks the governor has over-stepped, but they’re too chickenshit to come into session to override.

  10. How about we just cut the Gordian knot by filing a motion for habeas relief for the entire state?

    1. YES!!!!!

      Even filing it would make a point, and any objective reporters left in the media would report on it.

      1. Wonderful! A class-action suit for habeas relief.

        As for being reported by objective media: this might resolve the ancient puzzle: “If a lawsuit is filed and nobody reports it, was it ever really filed?”

        1. I am quite serious. The government owes the people a way to immediately challenge and overturn actions like this shutdown order, which may have been motivated by public safety but far exceeds what is necessary to protect us — or simply amounts to usurping our inherent right, as adult human beings, to make our own risk/reward decisions individually.

          If the courts will not hear such a challenge — or won’t hear it until too late for the hearing of it to stop its effect — then it cannot expect the people to continue to behave. They will and should challenge the order in the only remaining way possible — by taking up arms.

  11. “A house of worship is far more essential than a liquor store.”

    Only because Madison short-sightedly singled out religion for protection, and not alcohol consumption. Should’ve had Gouverneur Morris write the bill of rights, that guy knew how to party!

  12. The last sentence had a subtle, but effective reference to religion.

    If that’s subtle, I’d hate to see what Prof. Blackman would consider blunt and ostentatious.

  13. While it is plausible the result is correct if Kentucky allows some drive-in non-essential services, I strongly oppose the reasoning that the Constitution mandates that soul-sustaining services are on par with life-sustaining services as being essential. That conclusion strikes me as favoring religion in a way that conflicts with Employment Division v. Smith.

    1. The Smith decision was sold to the public as meaning that “those religious people have to obey the same laws as everyone else.” Or in more formal terms, religious objectors have to obey neutral, generally applicable laws.

      But once the government gets in the business of doling out exemptions, exempting the life-saving ministrations of liquor stores while banning such inessential things as drive-in church services, then that “same laws as everyone else” talking point loses much of its force.

      1. I found Eugene’s argument to the contrary persuasive:

        Most laws have many exemptions, including ones that offer favored treatment to certain secular motivations. […] battery is a crime—but it has exceptions […] necessary defense of property […] it treats a secular motivation (protecting my property) as more important than a religious motivation (protecting God against insults, if that’s how I conceptualize blasphemy). […] I don’t think the Free Exercise Clause condemns the denial of religious exemptions in such cases.

        1. A self-defense exception for battery seems intuitively different from a liquor-store exemption from quarantine. But the good professor’s argument does have the advantage of invoking some of the old standbys of the anti-exemption argument.

          Did he mention human sacrifice?

          1. My understanding is that under both Smith and RFRA, there’s no exemption for human sacrifice, punching blasphemers, etc – because even under the most freedom-friendly standard, there’s a compelling government interest in stopping such behavior, an interest which cannot be met short of punishing the perpetrators.

            So even under RFRA-type standards, you still can’t throw virgins in volcanoes, or what have you.

            The more interesting comparison would be between behavior which can be banned under Smith, but which would be allowed under RFRA-type standards.

            1. Eugene gave four examples of laws which have secular exemptions that he believes the Free Exercise Clause nonetheless does not require religious exemptions: 1) anti-discrimination laws, 2) battery, 3) copyright and 4) trespassing. I’m not sure if he believes religious exemptions are required under a RFRA.

              1. If the Professor’s take on Smith is correct, then that should be an argument *against* that precedent.

                The whole thing with Smith is that you posit some “neutral, generally-applicable law” and declare that these religious people have to obey the same laws as everyone else. Put that way, it gives the Smith case some powerful rhetorical defenses. It appeals to our egalitarian impulses. Why should this Indian be able to use peyote for sacramental purposes, and I can’t use it to get high? (This is a strictly hypothetical example; I’m not into peyote).

                But frequently the talking point about obeying the same laws as everyone else simply doesn’t apply. When a law has enough secular exemptions, then it’s a law *some* people have to obey, and if the some people includes religious objectors, too bad for them.

                At some point, if you have enough secular exemptions then even the strictest supporter of Smith will start to ask if its fair to deny, without further analysis, any religious exemption. I think Prof. Volokh agreed with the proposition, he simply thought some judges were too willing to throw aside the Smith framework.

                But if the Supreme Court overruled the Smith case then we wouldn’t have to worry about when there’s enough exemptions to trigger strict-scrutiny analysis, you just go straight to that analysis and if the government loses, grant the exemption, but if the government wins, deny the exemption.

                1. But the fact that the Smith decision, in the first few years, prompted a *bipartisan* backlash in favor of freedom, is quite telling. How often does a bipartisan consensus go in the direction of freedom? Usually, “bipartisanship” is just another name for both parties attacking freedom.

                  This bipartisan backlash against Smith produced (a) a Congressional RFRA applicable to the federal government, (b) a Congressional Religious Land Use and Institutionalized Persons Act (RLUIPA) forcing at least some state activities to conform to RFRA principles, and (c) state RFRAs, though lately the bipartisan aspect has been lost.

                  At some point, hopefully, the backlash will lead to Smith itself getting overruled.

                  1. Smith definitely gave rise to a backlash.

                    It was still rightly decided.

                    1. Scalia was wrong.

                      He wanted to draw a bright-line rule, and he drew his bright line right through the heart of the First Amendment.

                      He acknowledged that his rule would leave small and unpopular religions at the mercy of hostile majorities, but it was a risk he was willing to take.

                    2. “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”

                    3. (observe the straw-manning)

  14. This pandemic has made liberals power hungry. Never before, maybe since the Civil War, have you seen the difference in the political parties. Democrats are in “full achtung” mode with the lockdown orders. The thought of letting people go about their business is so foreign some have extended these far beyond their usefulness. I don’t think this is going to end well for the liberals. If the fascist in the governor’s office in Michigan is deposed I think the other liberals are going to start really worrying.

    1. I’ll buy the argument that the left is, in at least some ways[1], more willing to defer to government micromanagement, but I really don’t think that even the most liberal/left/whatever governor heard about this pandemic and thougt ‘Yippee! It’s just like the normal flu, but I’ll exploit it to shut down churches and gun stores[2] and make everyone stay home, because I hate the restaurant business’. Doesn’t it seem more likely that they are thinking ‘Yikes! The epidemiologists are universally saying this could be very, very, bad, and I’m going to err on the side of caution’? It’s one thing to say that this or that policy is wrong and to advocate for changing it, but comparing the various shutdown orders to, say, Hitler’s first couple of months in power is profoundly silly. He had the first concentration camps up and running by then. None of my conservative friends have disappeared yet, so I’m pretty sure the lib takeover isn’t quite what you think it is yet.

      [1]and in other ways, e.g. bedrooms, not so much.
      [2]they may not have cried crocodile tears over that, but then governors on the right weren’t crying over shutting down abortions, either

      1. ” None of my conservative friends have disappeared yet, so I’m pretty sure the lib takeover isn’t quite what you think it is yet.”

        Not even the ones publicly talking about eating their neighbors.

    2. I’m more worried about the fascist in the Governor’s office being shot — and that will not be good for anyone….

      1. A tribunal would be far preferable.

  15. “How is the government to decide what meetings are ‘essential’?”
    I think it’s less a question of who’s “essential”, and more a question of “can they gather and still maintain social distancing and limit the spread of the virus?”
    That’s where liquor stores and religious services substantially differ. Even the best liquor stores don’t draw shoulder-to-shoulder crowds, whereas the best religious services do.

    1. “Even the best liquor stores don’t draw shoulder-to-shoulder crowds…”

      Until there is a rumor going around that the state government is going to close them down. The day that was going around you couldn’t get a bottle of cheap wine. People were loading up cases of liquor.

      1. I’ve only lived in states where the liquor stores are operated by the state. Where if the states wants the liquor stores closed, they just close them.

    1. You celebrate threats of violence endangering the public health?

      What kind of a dipshit are you?

  16. That seems to me to be an odd way to frame the issue. The legal question is what is “essential”. Yet your post, and the court, seems to argue what is “safe”:
    “Why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave delivery woman but not with a stoic minister?”

    The answer is simply. They can’t. Interacting with a delivery woman is a risk, as is walking down the grocery aisle. But they are risks we have to tolerate because not taking them would expose people to even more serious and/or certain risks – to whit die from starvation, or not getting necessary medication etc etc. So for the “essential” test, the relative riskiness doesn’t matter, the question is :”how many more will die if we stop doing X as opposed to stop doing Y”.
    People are unlikely to die from skipping church a few weeks, they will die if the post doesn’t deliver their insulin. I would not underestimate the benefits in terms of mental health of church service, but it would have to be argued on that point, not risk (and then also apply to other, secular group activities w same benefits

  17. “The contrast between “life-sustaining” and “soul-sustaining” is poetic and persuasive.”

    What the fuck are you talking about? Persuasive to whom?

    Anyway, of course the government makes political decisions about which businesses to opportunistically close and which ones to keep open, including on the basis of political support. That’s how government works.

    “And why does the state trust some professions, but not the clergy to practice social distancing?”

    I can think of a good reason to treat accountants differently from clergy. Can’t you?

    “If people can congregate, elbow-to-elbow on an airplane, they should be able to do the same in a house of worship.”

    A flight from NY to Charlotte has what exactly to do with the Kentucky Governor’s order?

  18. Morning, NToJ. I’m wondering, off topic to this, although spurred on by your usual ability to be at least nominally nonpartisan and call out either side when they’re being silly (an ability I lack).

    You originally very much thought this COVID thing was overblown. To be fair, I thought even with social distancing measures we’d be seeing quite a few more deaths than we have seen thus-far. So that’s good.

    What do you think now?

    1. It’s a difficult claim to respond to. I don’t have a precise understanding of what “overblown” means in context. I don’t know what specific things I said to which you are referring. If you are asking me if I believed then that some media sources were either reporting things that were contrary to available evidence, ignored important nuance to what they were talking about, or omitted contrary evidence, I think that happened and my thought today is that it is still happening.

      I believe most of what I commented had to do with the IFR. (If there’s something else specifically I said that you want to discuss, let me know.) I have maintained that the empirical evidence suggested it was below 1%, and that reports of it being higher than 1% were either referencing a CFR, or were ignoring evidence.

      There’s a lot of scientific disagreement about estimating the IFR, as you might expect with a disease that affects demographics differently, and probably has some regional variability due to weather, health care resources, etc. The most recent paper I’ve seen estimated in Italian regions IFRs between .57 (Bergamo) and .84 (Lombardia), that’s at medRxiv from Modi, Boehm, Ferraro, Stein, and Seljak (4-20-2020). That contrasts with the Stanford study (~.2%) and some others that I am not finding right now.

      What I think now is that we may never know whether the policy responses to COVID were “overblown”, since we will be dealing with the long-term morbidity, economic, social, etc. effects for decades, probably even long after I’m dead. Near-term, it will take at least several years after the epidemic is brought within normal limits (post-vaccination) before we will have a useful enough data set to see the effects of the social policies we enacted, and their corresponding harm.

      I may be able to answer your question more directly and with more specifics if you let me know what you mean by “overblown”. At this moment, what I think is that we’re probably on the right side of COVID and that moving forward R naught can be brought below 1 in many parts of the country without broad shelter-in-place orders. I don’t think that’s true in every part of the country, particularly cold places with dense populations that rely on elevators and public transit to get around (like NY). I predict that when the next COVID-like epidemic hits, most (but not all, it’s politics) jurisdictions are going to utilize less broad shelter-in-place, in lieu of quick testing regimes with protective measures targeted at the most at-risk populations.

      The most disgraceful thing about COVID has been our information deficit. We should not be this deep into the epidemic and still have significant disagreements between epidemiologists on basic questions like IFR, the actual IR, etc. Nothing was as important but more neglected than a broad, randomized testing regime from minute one. It is a failure at every level of every government and suggests the need for a coordinated, global solution. I’m usually very against central planning, but getting early testing everywhere at the beginning of an epidemic is the sort of unique problem that can only be solved by central planning. And it didn’t happen. It still hasn’t happened in most places.

      1. I was thinking less of the rates than the total numbers, but your response more or less answers my question.

        I would tend to agree with your policy prediction that the response to a round 2 will not be so radical, for better or worse.

        Could not agree with your last paragraph more. My work may be reopening with the option to go in. I have no idea how to make that decision.

        1. Re: total numbers, I do think that the scientific estimates on total number of infected in the present is not reported on enough. If the total number of infected is 4x, 10x, or 20x the reported case infection, that’s going to have a rather drastic effect on the IFR, which itself is probably the first or second most important data point for evaluating the appropriateness of policy responses. Developing evidence to make those estimates assumes we’ve figured out some rather important things about the disease, including how it transmits, whether asymptomatic people are carriers (or not), etc., all things we’d want to know to develop effective public policy to combat it. (That information is also invaluable to people like you trying to make personal decisions about how to interact with a potentially sick world.) Three days ago researchers Bohk-Ewald, Dudel, and Myrskyla (again at medRxiv) estimated the number at (on the lower bound estimate) 2x reported cases, with significant variation across countries. Upper bound is 10x.

          Lots of interesting data in there that would be very helpful towards informing public and personal decisions about how to respond to the risk of the virus. For example, they appear to estimate that ~90% of deaths are from people over the age of 70. They estimate the IFR in the US for people <70 to be .8% on the high end (60-69 age cohort) and plummeting after that (.25% for 50-59, .06% for 40-49, .039% for 30-39, and .012% for 20-29). Keep in mind this report attempts to rebut the estimated infection rates of the serological studies that would imply an even lower IFR. This is exactly the sort of information people like you could have used to estimate, based on your age, high-end IFR possibilities, to inform your own safety decisions. It’s unfortunate that we’re still stumbling into this information in May.

  19. ‘Liquor stores may be “life-sustaining,” but houses of worship are “soul-sustaining.”‘

    You worship your way, and I’ll worship my way. Ave Bacchus amen!

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