Kentucky Governor's Order Violates Free Exercise Clause as to In-Person Worship Services

So the Sixth Circuit held today, because of the many exceptions the Kentucky order provides for secualr activities.

|The Volokh Conspiracy |

In today's Roberts v. Neace, Sixth Circuit Judges Sutton, McKeague, and Nalbandian, granted an injunction pending appeal of a case challenging the Kentucky Governor's shutdown order, as applied to in-person worship services. And in the process the panel concluded that the order likely violates the Free Exercise Clause, because it treats religious worship services worse than many exempted activities, including "typical office environments."  The court concludes that the petitioner is entitled to conduct an in-person service tomorrow, though the state can impose the same social distancing requirements on it as it does on exempt entities:

Governor Beshear has issued two pertinent orders arising from the COVID-19 pandemic. The first order, issued on March 19, prohibits "[a]ll mass gatherings," "including, but not limited to, community, civic, public, leisure, faith-based, or sporting events." It excepts "normal operations at airports, bus and train stations, … shopping malls and centers," and "typical office environments, factories, or retail or grocery stores where large numbers of people are present, but maintain appropriate social distancing."

The second order, issued on March 25, requires organizations that are not "life-sustaining" to close. The order lists 19 broad categories of life-sustaining organizations and over a hundred sub-categories spanning four pages. Among the many exempt entities are laundromats, accounting services, law firms, hardware stores, airlines, mining operations, funeral homes, landscaping businesses, and grocery stores. Religious organizations do not count as "life- sustaining," except when they provide "food, shelter, and social services." …

The Governor's restriction on in-person worship services likely "prohibits the free exercise" of "religion" in violation of the First and Fourteenth Amendments. On one side of the line, a generally applicable law that incidentally burdens religious practices usually will be upheld. On the other side of the line, a law that discriminates against religious practices usually will be invalidated because it is the rare law that can be "justified by a compelling interest and is narrowly tailored to advance that interest."

These orders likely fall on the prohibited side of the line…. [A] law might appear to be generally applicable on the surface but not be so in practice due to exceptions for comparable secular activities. See Ward v. Polite, 667 F.3d 727, 738 (6th Cir. 2012); see also Fraternal Order of Police Newark Lodge No. 12 v. City of Newark, 170 F.3d 359, 365-67 (3d Cir. 1999)….

[T]he four pages of exceptions in the orders, and the kinds of group activities allowed, remove them from the safe harbor for generally applicable laws[.] … As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non- discriminatory law. "At some point, an exception-ridden policy takes on the appearance and reality of a system of individualized exemptions, the antithesis of a neutral and generally applicable policy and just the kind of state action that must run the gauntlet of strict scrutiny."

The Governor insists at the outset that there are "no exceptions." But that is word play. The orders allow "life-sustaining" operations and don't include worship services in the 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, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions. 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 the other services.

Keep in mind that the Church and its congregants just want to be treated equally. They don't 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 do not ask to share a chalice. The Governor has offered no good reason 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.

Come to think of it, aren't the two groups of people often the same people—going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings? The distinction defies explanation, or at least the Governor has not provided one.

 

No doubt, some groups in some settings will fail to comply with social-distancing rules. If so, the Governor is free to enforce the social-distancing rules against them for that reason and in that setting, whether a worship setting or not. What he can't do is assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings. We have plenty of company in ruling that at some point a proliferation of unexplained exceptions turns a generally applicable law into a discriminatory one. See, e.g., Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 165-70 (3d Cir. 2002); Fraternal Order of Police, 170 F.3d at 365; see also Cent. Rabbinical Cong. of U.S. & Can. v. N.Y.C. Dep't of Health & Mental Hygiene, 763 F.3d 183, 196-98 (2d Cir. 2014).

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. See Jacobson v. Massachusetts (1905). And we agree that no one, whether a person of faith or not, has a right "to expose the community … to communicable disease." Prince v. Massachusetts (1944). But restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom. 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 Commonwealth has no good answers. While the law may take periodic naps during a pandemic, we will not let it sleep through one.

Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutional benchmark is "government neutrality," not "governmental avoidance of bigotry." A law is not neutral and generally applicable unless there is "neutrality between religion and non-religion." And a law can reveal a lack of neutrality by protecting secular activities more than comparable religious ones.

All of this requires the orders to satisfy the strictures of strict scrutiny. They cannot. No one contests that the orders burden sincere faith practices. Faith plainly motivates the worship services. And no one disputes the Church's sincerity. Orders prohibiting religious gatherings, enforced by police officers telling congregants they violated a criminal law and by officers taking down license plate numbers, will chill worship gatherings.

At the same time, no one contests that the Governor has a compelling interest in preventing the spread of a novel, highly contagious, sometimes fatal virus. The Governor has plenty of reasons to try to limit this contagion, and we have no doubt he is trying to do just that.

The question is whether the orders amount to "the least restrictive means" of serving these laudable goals. That's a difficult hill to climb, and it was never meant to be anything less. There are plenty of less restrictive ways to address these public-health issues. Why not insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities? Or perhaps cap the number of congregants coming together at one time?

If the Commonwealth trusts its people to innovate around a crisis in their professional lives, surely it can trust the same people to do the same things in the exercise of their faith. The orders permit uninterrupted functioning of "typical office environments," which presumably includes business meetings. How are in-person meetings with social distancing any different from in-person church services with social distancing? Permitting one but not the other hardly counts as no-more-than-necessary lawmaking.

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, or what it means when "not forsaking the assembling of ourselves together," Hebrews 10:25.

As individuals, we have some sympathy for Governor DeWine's approach—to allow places of worship in Ohio to hold services but then to admonish all of them (we assume) that it's "not Christian" to hold in-person services during a pandemic. But the Free Exercise Clause does not protect sympathetic religious practices alone. And that's exactly what the federal courts are not to judge—how individuals comply with their own faith as they see it.

The Governor suggests that the explanation for these groups of people to be in the same area—intentional worship—creates greater risks of contagion than groups of people, say, in an office setting or an airport. But the reason a group of people go to one place has nothing to do with it. Risks of contagion turn on social interaction in close quarters; the virus does not care why they are there.

So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time? It's not as if law firm office meetings and gatherings at airport terminals always take less time than worship services. If the problem is numbers, and risks that grow with greater numbers, there is a straightforward remedy: limit the number of people who can attend a service at one time. All in all, the Governor did not customize his orders to the least restrictive way of dealing with the problem at hand….

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  1. KY governor is a democrat.

    1. Tall Dukakis (RINO-MA) purports to be a Republican….

  2. I think the court got the decision right. But I do see one difference…although maybe only of optics. Almost no one would see a problem with govt officials going into a law firm, or a bowling alley, or a grocery store, to see if people are complying with the law re social distancing. Govt officials going into gun shops and gun ranges would be met with outrage by the extremist wing–but most strong gun advocates would not mind this monitoring, as long as it was being done to all types of businesses. But I predict huge problems if those same govt officials are going into houses of worship and observing if people are indeed following the law. Yes, it’s being done exactly the same way as observation of non-religious locations. But it sure looks like the govt is intruding on religious practice, just by its presence.

    (As an aside; I am not sure how Catholics are supposed to do confession. I’m Jewish, so I obviously have never done this practice myself. But from what I’ve seen on TV (and based on my visits to churches while traveling), the two parties in a confession are *way* closer than 6 feet apart. Eugene, can a law single out practices unique to a religion like this, where the law is absolutely neutral [ie, “6 feet apart”] but happens to impact one or two religions in particular?)

    1. Actually the Catholics are being compliant — it’s the Protestants who are challenging this stuff. In part it is easier for most Protestant denominations to do so because they don’t need permission from a church hierarchy to file a lawsuit, the local church is sovereign.

      The only real issue is communion, although most Protestant churches already meet health code — disposable cups of grape juice and individual squares of bread. There could be a little bit more packaging, but no big deal. And Protestants don’t have to do it every Sunday.

      But the confessional is a good question.

      1. Baptism, don’t forget baptism. Also kind of hard to do from six feet away.
        And the real point is that the edicts from the executive are an infringement on everyone’s constitutional rights. No one should have to kneel to these petty tyrants because a bunch of un-elected statists claim to have models based on known lies showing a disaster. We never shut down anything for AIDS. We do nt shut down anything for the yearly flu. We rely on voluntary use of reasonable health precautions, nothing else.
        One unanswered question. Will we count as C19 deaths all the people who die from lack of diagnostic tests or “elective” surgery over the next decade?

        1. While you are right, there is the lesser included question of the hypocrisy of Ratheon versus churches.

          And as to your other question, we ALREADY ARE counting all deaths as C-19 deaths. It’s more Federal $$$$ if we do.

          1. And as to your other question, we ALREADY ARE counting all deaths as C-19 deaths. It’s more Federal $$$$ if we do.

            We are not and it is not.

        2. “We never shut down anything for AIDS”

          Factually incorrect.

    2. I suspect the general public would have a huge problem with government agents walking into random offices and businesses to check for proper social distancing. It’s one thing to act on a complaint; another entirely to wander in without any suspicion, reasonable or not.

    3. The only requirement for a Confession is that it has to be private.

      Priest and Confessor could be seated 6 feet away from each other.

      1. Kevin,
        Of course we know they *could* be. But the physical confessional would not allow for that 6-foot distancing. One of the accommodations the Church could make is to say, “Confessions will now be done in the priests’ offices, rather than in the usual confessional.”
        BUT, if the Church refused to do that, what would the result be? I’m not so sure.

        1. Ah, you do realize that the confessional booth has a partition, right? There’s no issue with being less than six feet apart if there’s a wall between.

          1. Partition does not a wall make.

            When I’ve been into churches in Prague, Vienna, St. Petersburg, etc etc, there is a small “window” in the confessional and that window has a wooden grate on it. And (I admit, based only on TV shows I’ve watched), the confessor sits with her face very close to the grate, the priest sits with his face very close to the grate, and they softly speak. So, their faces are 1-3 feet apart, and IT IS AN OPEN GRATE. [The grate is there, I assume, to give a fig leaf to the concept of anonymity.] So, no protection from an airborne virus. If there were a confessional with an actual wall, then the two would have to be shouting in order to be heard…sort of defeating the whole purpose of a private confession.

            If you and I are chatting somewhere and there is a solid brick wall between us, then you’re correct, of course, in terms of safety. (But, again, we’d be shouting, or loudly talking, in that case.) If it’s a chain link wall, then the partition between us will obviously do absolutely nothing to stop the virus from spreading. (A normal wood fence–a la “Home Improvement,” and chats with Wilson–would be somewhere in-between, I assume.)

            1. Not really a big deal to work around. Here are two obvious ways:

              High tech: Cover the confessional grate. Church acquires a disposable cell phone per confessional, leaving each one on the priest’s side, and posting the number on the confessor’s side. Church also has loaner phones for those who are truly indigent. Sanitize confessor side and, as needed, loaner phone between confessions. Substitute phones with securely paired Bluetooth speakers or other tech for workalike approaches.

              Low tech: Cover the confessional grate with something like Saran Wrap, which transmits sound, though obviously not as well as the open grate. Compensate for the louder speaking needed by temporarily affixing acoustic foam on the inside walls of the confessional, except the separation wall, which would be pointless. Sanitize confessor side between confessions.

              People will find ways, it’s what they do.

            2. Much like anything else, you could build something that would work. For example, prisons put solid walls between prisoners and visitors and then provide for electronic communication between the prisoners and their visitors. There’s no reason Catholic confessional couldn’t be facilitated by electronics. The engineering of encrypted private and anonymous connections is fairly well understood by professionals in that field. Many of those professionals are available for hire, even the ones who are “essential” to their employers might choose to take on a side project.

            3. [The grate is there, I assume, to give a fig leaf to the concept of anonymity.]

              Anonymity is not always possible to provide. The priest is sworn to absolute silence about what was said during confession, even if he knows the identity of the Confessor. I have given confession in an open corner of a church, but distant from any other people.

        2. “Confessions will now be done in the priests’ offices, rather than in the usual confessional.”

          Actually that’s always been permitted. There’s no requirement to use a special ‘confessional’ booth, and many Catholic churches don’t have those.

    4. So santamonica811….How do we convene a minyan? Conduct shiva calls? Perform weddings? It is not as if Jews are not injured by these draconian restrictions on our free exercise.

      1. I’ve posted to earlier Eugene OP’s, when the issue of limiting crowd size was being discussed (when the only restrictions were large crowds, then 100 or more, then 50 or more, then 10 or more people): People were making the argument that one could worship via the internet, or in very small groups. And I wondered about the impact on Jews, where it’s an actual part of our religion that there be at least a certain number in order for critical (from a religious perspective) things to occur. I’m not sure if I ever got an answer to those questions…maybe Eugene or others with expertise while chime in here with an answer to your (and my) question(s).

        1. Surely God knows about the current pandemic, and understands the difficulty he’s placed you under.

          1. Well, God created the pandemic, and it’s all part of his plan that a few hundred thousands die, and that our lives get tossed into chaos. So, yes; I agree with you that he probably is understanding of our resulting difficulties.

    5. Here’s the problem.

      Government officials are already going into Houses of Worship to enforce the law. And just arresting the pastors for having 16 people in a chapel designed for over 250, all separated by more than 2 meters.

      https://apnews.com/e8e3e00f7017adef8eee9a8a68127a87

      1. Yeah Armchair, my sense is that the time for restricting the free exercise of religion has now passed. It is now time to allow us to worship in our houses of worship.

        1. My sense is (and has been) that the orders being passed always seemed to have too many exceptions to them to justify banning church services. Recommending they not do so, sure. But banning with jail time? Too much, because of all the other stuff that is “excepted”.

          Liquor stores, and gun shops. Lawnscaping services and steel mills. Union meetings and lawyer’s meetings. Accounting services and packed airport terminals. Laundromats and golf courses.

          When everything else is excepted…when every other industry and focus group gets an exception…it’s not right.

          1. Every other industry is not getting an exception. Theaters, restaurants, bars, nightclubs, hair salons, tattoo parlors, gyms, clothing (and many other retail) stores and sporting venues are all closed as well.

            1. “Theaters, restaurants, bars, nightclubs, hair salons, tattoo parlors, gyms, ” And those are all protected by the First Amendment??

              Supposedly only those “Life-sustaining” industries are allowed to remain open. But when “Life-sustaining” includes steel mills, accountants, lawnscaping, union meetings, and packed airport terminals, I’m not sure it has a real meaning.

              1. Under Employment Division v. Smith, religious services do not get more First Amendment protection from a neutral and generally applicable law than theaters do.

                The hard question remains what is the standard for determining whether including religious services along with theaters rather than steel mills violates neutrality. This decision shed no light on that question.

                1. You’re using the wrong comparison here.

                  Under Employment Division v. Smith (or any other major case), theater services do not get protection. Period. The state can shut down theaters if it wants. It doesn’t have to be a general industry-wide law.

                  But when you have as many exceptions to a “neutral and generally applicable law” as the current law is, it ceases to be “neutral and generally applicable.” It is instead being applied in specific cases. If the law shut down everything, but then issued exceptions for everything except religious services and theaters, the “theaters” would be the wrong comparison.

                  1. But when you have as many exceptions to a “neutral and generally applicable law” as the current law is, it ceases to be “neutral and generally applicable.”

                    The court kind of said that with

                    As a rule of thumb, the more exceptions to a prohibition, the less likely it will count as a generally applicable, non- discriminatory law.

                    But, a rule of thumb is not much help as a rule of law.

                    1. The court doesn’t make laws. It interprets them.

                      The law could’ve stood, if it was far more strict. If steel mills and accountants, airports and lawnscaping, union meetings and airports, laundromats and electronics stores and more were also shut down. But they weren’t. (And if they all were shut down, there would be far more pressure to open up things.)

                      Personally speaking, here’s my analogy. Think of everything that is shut down during a truly massive snowstorm. Then think of what is demanded to be left open. Those items are truly life-sustaining. When you expand beyond that, the law isn’t about “life sustaining” anymore, and begins to have enough exceptions that religious services should be allowed.

                    2. Perhaps the massive-snowstorm test would work in this particular case (*) for deciding which exceptions move an order from neutral to targeting religion. But, 1) that test is of little help in deciding other cases that have exceptions not based on what is life sustaining, and 2) this ruling did not use the massive-snowstorm test, or any test as far as I can tell.

                      (*) I’m not sure that the massive-snowstorm is appropriate. For example, while airports aren’t needed during a massive snowstorm, can the state rationally argue they are for the life-sustaining supply chain over the months of a pandemic?

                    3. The challenge is that people aren’t just choosing whether or not to risk their own health. They’re also making a decision as to whether or not to put everyone else they come in contact with in the future at risk of contracting the disease. It’s been a long time since humanity in general lived in fear of infectious disease, and we’ve lost the knack.

                    4. 1) Other cases. For example? Can you think of a rational reason that somehow doesn’t violate the first amendment, that shuts down all in person religious services?

                      2) Again, that was my personal analogy. What they did is look and say “that’s a heck of a lot of exemptions”. Which is the big problem.

                      *) I used an example that is most common for large scale closures. For what absolutely, positively, must stay open.

                      For a months-long crisis? That’s new terrain. The issue with “rational arguments” is you can make rational arguments about almost anything in the long term. I can rationally argue that you need to open the churches back up, so to assist with people’s mental health, and prevent suicides. You can argue there needs to be a packed flight from New York to SF. So, with these rational arguments, you either need to be ultra-strict, and nothing that isn’t absolutely critical is opened up….or there need to be openings for things protected by the Constitution.

                    5. 1) Eugene brought up four examples where he thought the law remained neutral in spite of secular exceptions: battery, anti-discrimination law, trespassing and copyrights. The massive-snowstorm test has no applicability to those cases.

                      2) “that’s a heck of a lot of exceptions” is (once again) no basis for a rule that courts can implement.

                      Yes, you can construct many different rational arguments. But, I think you may have missed my point that the question is when assessing exceptions, should courts defer to the elected branches if there is a rational basis for not including religious services in the exceptions such that the order to close the services is neutral? Or, should the courts examine exceptions more carefully, and if so on what basis. I think it is clear, this decision did not defer to the elected branches, but the court did a a poor job of explaining on what basis the orders are not neutral (“that’s a heck of a lot of exceptions” doesn’t cut it).

      2. They haven’t gone into a Mosque, have they?
        I wonder why….

        1. You still pushing this? You still have no examples of Mosques breaking state orders?

          Then your search for victimization will remain in vain.

          1. You still pushing this? You still have no examples of Mosques breaking state orders?

            Be careful what you wish for; I’m sure Dr. Ed will be happy to supply dozens of made-up anecdotes.

            1. This is Kentucky. Who, exactly, is the pro-Muslim constituency that would object to enforcement in mosques?

              1. I’m sure that all the mosques in Kentucky are just waiting for the shoe to drop.

    1. Please, give us an edit button. Here is the link to Eugene’s earlier post.

  3. This is EXACTLY what I have been saying about Tall Dukakis’ ban on churches in Massachusetts — content neutrality. Ratheon making missiles that will kill hundreds of people is not inherently more important than a minister saving souls.

    1. ” Ratheon making missiles that will kill hundreds of people is not inherently more important than a minister saving souls.”

      depends on whether or not you have stock in Raytheon, I suppose, and whether you believe that ministers actually can save souls. (the latter doesn’t happen to coincide with my theology, which labels “saving of souls” as a divine power.)

  4. The OP is pure blather. There is no gamut of exceptions. There is one exception, which covers many cases: a deadly pandemic.

    Presumably the pandemic is time limited. After it has run its course, if the exceptions remain in place, and religionists are oppressed, that will be time enough for the court to substitute its judgment for the executive’s. Until then, the court should not risk its prestige and legitimacy on a reckless bet that its own reasoning will not deliver bloody consequences.

    1. The lockdown is about not overwhelming hospitals, not about saving individual lives. If there is slack anywhere, it would include what The People mandated as most important, gave the government 0 power over.

      1. Krayt, do you suppose the executive lacks authority to save individual lives by using extraordinary measures in an emergency?

        1. Once the curve has been flattened to the point that medical facilities will not be overwhelmed, then there is no longer an emergency. If you disagree, then please let us know where the boundary is for an “emergency”. Every year, 10s of thousands die from influenza, despite vaccination rates of 35%-50% (depending on year) for adults, and higher for minors. Influenza is less easily transmitted, but the transmission vectors (droplets, surface contamination) are similar. Should we suspend in-person religious services every flu season? If not, why is it different? Is there a cutoff between 61000 lives (2017-18, even with a vaccine), and perhaps 150000 lives (COVID-19 w/o a vaccine) for what constitutes an “emergency”?

          1. If the current state of emergency was challenged in court, I have little doubt the government would offer expert epidemiological testimony to answer your questions in a manner similar to what Fauci and Birx have said.

            1. I have no doubt of it, but the crux of the matter is whether the facts which would stand to challenge, taken in their totality along with facts offered by opposing counsel, justify an “emergency”. From what I’ve seen so far, I would say that the totality of facts no longer justify an “emergency”, and that states like Georgia are moving it the right direction. I’m pretty sure you would disagree, but the rest of us don’t really know, because you didn’t answer the questions I posed to you.

              1. The appropriate question isn’t what you are I believe, or what our arguments might be. The appropriate question is are the courts the proper place to decide the issue? Or, should they defer to the elected branches by applying rational-basis review?

                1. Pray on it.

                  Maybe God will hear yout, and make the coronavirus just disappear as the weather gets warmer.

              2. ” states like Georgia are moving it the right direction.”

                Make America Sick Again… put it on your hat.

            2. “If the current state of emergency was challenged in court, I have little doubt the government would offer expert epidemiological testimony to answer your questions in a manner similar to what Fauci and Birx have said.”

              Which wouldn’t be convincing evidence to the sort of people who believe that they know better than the experts who’ve spent years studying their fields. “My opinion is just as good as your facts”

    2. You’re joking right = After it has run its course, if the exceptions remain in place, and religionists are oppressed, that will be time enough for the court to substitute its judgment for the executive’s.

      Religionist? Um….ok.

      1. Ordinary word. Found in dictionaries. Used by writers.

      2. “Religionist? Um….ok.”
        Would you prefer the more informal term, “yahoos”?

    3. “ Presumably the pandemic is time limited. ”

      Hopefully may be a better word than presumably. Beside human to human transmission the Wuhan virus has shown up in dogs and cats. This virus may be with us for years. Doing contact tracing on dogs and coyotes seems a hopeless task. Fortunately it’s lethality is largely limited to a small subset of the population.

      1. The human race has had some experience with pandemic in the past. Some parts of the human race have experienced more than one. At least now we have some understanding of what causes the disease and can apply some rational planning towards controlling the spread of the disease, unlike the poor fellows who believed that disease was caused by demonic possession, or poorly-balanced humours.

    4. “Presumably the pandemic is time limited.”

      How “time-limited”? 1 Month? 2 Months? 6 Months? 18-24 months, as some have suggested?

      How long should civil rights be violated without being to be able to be challenged by a court?

      1. Anything past 30 days should be required to have a Legislature specifically act upon it, pandemic or not.

        The problem is some states did not make the restriction limited, temporary and time-bound. The People’s Republic of NJ was one. HOWEVER, in the last renewal, the governor specifically sunsets the restrictions after 30 days, unless renewed by the Legislature. This was the right thing to do.

        Now….the governor of NJ needs to respect our free exercise rights of worship. Governor Murphy, let our people go….to services!

      2. Armchair, how long? At least as long as it takes to get people to comply, and for the objective sought to be obtained, as it surely will be if people do comply.

        If the worry is the duration of the shutdown, then a question arises over whether the right measure of that duration is a fixed time, or the extent of compliance and effect. Logically, the way to maximally shorten a social-distancing shutdown is to make it uniform (to the greatest extent possible), stringently enforced, and geographically extensive.

        If the objective were to lengthen the crisis, then following that list in the breach is what does it. I want an aggressive shutdown because I want it to end soon, not because I want to infringe liberty long.

        Alas, because of half-measures, libertarian-themed non-compliance, and regional variation, the nation appears headed for an endless series of less-effectual measures, and a series of longer duration but more-haphazard infringements. That is folly.

        As for being challenged by a court, my civil right to life is not subject to court challenge under the current Constitution. My state governor is explicitly empowered to protect my life. Don’t like it? Get an amendment.

        1. “Armchair, how long? At least as long as it takes to get people to comply” “As for being challenged by a court, my civil right to life is not subject to court challenge under the current Constitution. My state governor is explicitly empowered to protect my life. Don’t like it? Get an amendment”

          This is basically the logic a dictatorship would employ. I asked how long before a court challenge…And the response? “As long as it takes…” Note, not even how long the law should last, but even a court challenge is forbidden under this logic.

          There is literally nothing a Governor can’t do according to this logic, for as long as the Governor deems necessary. As for needing an amendment….we have one. The first amendment.

          Steven, your logic is basically that of a dictatorship under Stalin or worse, and make a mockery of law, the Constitution and civil rights. According to this logic, it would justify locking up every African American in the state, so long as it helped “protect your life” and people shouldn’t even be able to challenge the policy in court.

          1. Armchair, get a grip.

            1. Your philosophy here is so extreme that you wouldn’t even allow legal challenges to executive orders during a declared emergency. Ever. Do you have any idea how extreme a position that is?

              I seriously can’t think of any democracy that has that position. That even legal challenges to an executive order are disallowed. Can you?

              Seriously speaking, the only governments that have this type of policy are dictatorships, communist dictatorships, and absolute monarchies. Where even questioning the supreme leader’s commands is disallowed.

              1. Armchair, do you concede that there are any powers in the executive which cannot be questioned? For instance, can the Court question the President’s pardon power, when it is exercised without regard to impeachment?

                Do you concede there are some powers which the Constitution reserves to the states?

                Do you concede that the Court may not in fact govern the nation on every question, and determine every policy?

                1. “Armchair, do you concede that there are any powers in the executive which cannot be questioned? ”
                  No, I do not concede that. Every single power the executive branch has is ultimately granted to it by either the Constitution or a law passed by Congress. And Article 3, Section 2 is as follows.

                  “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party”

                  If there’s a controversy, the judicial branch can play a role in resolving it.

                  “For instance, can the Court question the President’s pardon power, when it is exercised without regard to impeachment?”

                  Yes. The Supreme Court has specifically ruled on the President’s pardon power, and controversies regarding it, and how it is applied, several times. For example United States v. Wilson 1833.

                  “Do you concede there are some powers which the Constitution reserves to the states?”
                  Yes. However, the US Constitution is Supreme over state law and executive orders.

                  “Do you concede that the Court may not in fact govern the nation on every question, and determine every policy?”
                  The court does not determine policy. It does not answer the question. It interprets the law and helps resolve conflicts between conflicting laws and orders.

        2. “…and for the objective sought to be obtained…”

          Even NYC has met the original objective. Their temporary emergency medical facilities were barely used, they ended up with an embarrassment of riches in terms of ventilators, and the hospital ship was similarly under-utilized. Nearly all of the country has flattened the curve.

          However, now the goalposts have been moved from “flattening the curve” to “every life is precious”. The latter goal is of course unattainable, and therefore the catalyst for unconstrained statism.

          “I want an aggressive shutdown because I want it to end soon, not because I want to infringe liberty long.”

          A dispassionately objective assessment of the data would suggest that that is pointless. France has found an infection from December. I wouldn’t be surprised if we find the same. It’s out there and uncontained, and only martial law with full nationalization of all commerce would have any chance of ending it for any reasonable definition of “soon”, and I’m unconvinced that even such extreme measures would suffice.

          As a society, we’re plenty comfortable with up to 61000 flu deaths per year; few people did more than yawn when Dr. Fauci announced on 03 Dec that this was expected to be an exceptionally bad flu season. The only reason we’re over reacting to this virus is the original baseless estimates from Niel Ferguson hyped by the media. It’s long past time we moved to the “develop herd immunity” stage, and accept the resulting deaths (quite possibly including myself and, more likely, at least four people very close to me who are in vulnerable groups) as part of the “background noise” of deaths from influenza, accidental overdoses, suicides, vehicular accidents, and everything else which drives home our own mortality.

          1. Venerable, given that you did not engage my comment, you should not expect a response. But here is one anyway, for the sake of the bystanders.

            The emergency in question, the one which separates this disease from seasonal flu, is the threat of disproportionate casualties. No vaccine, no herd immunity, a more contagious organism, and a more lethal disease process, combine to create a prospect—in the absence of social controls you advocate against—for mortality unmatched by all of America’s wars combined—and in a quicker time frame than any but the shortest of those wars.

            It does no good to worry about projections, or critique supposed model failures. Stark evidence already on record from the Northeast tells you what you need to know.

            With quite stringent social controls in place, and notably well observed, 3 states—New York, New Jersey, and Massachusetts—are already trending toward a combined mortality count > 50,000, all expected to be inflicted in about 5 months time. Much more than half that number are already gone, after only 7 weeks. Pro-rate that by population across the nation, and the result would come to notably more than all American combat deaths from WW II.

            That may indeed be where this nation is headed. The experience of the 1918 pandemic shows it eventually reached far and wide, creeping out even to tiny island villages above the arctic circle. Rural America will not be more isolated, nor more thinly settled.

            Without the social controls you oppose, the result would surely be far worse. But even with social controls in place, the likely mortality will deliver all the horror needed to define an emergency. Indisputable evidence to show that to a near certainty is already in.

            Against that background, it is barbarous to suggest a policy to drop social controls in the name of economy. It is folly to demand that a court impose such a thing.

            1. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety”

              -Ben Franklin

      3. “How long should civil rights be violated without being to be able to be challenged by a court?”

        Depending on your perspective, human rights are being protected.

        One person’s right to go get a haircut vs. another person’s right not to be infected with a disease.

    5. Based on what logic? Your fear? The curve has flattened, hospitals were not overwhelmed and the models have all been shown to be way off. At what point are we declaring emergencies simply because? What’s the underlying scientific standard to continue with and who gets to make those decisions ad infinitum? When would a court reasonably no longer defer to the executive branch that the harms of said emergency no longer outweigh the benefits?

      1. Variant, the answer to all your questions except the last one is that the police power belongs to the states, not to the federal government. That is the logic you seek.

        The answer to your last question is, “Never.” It will never legitimately fall to any United States court to weigh harms against benefits during a pandemic emergency. Only a constitutional emergency will deliver that outcome.

        1. Apparently, you not only think Korematsu was correctly decided, but additionally you feel the Court was wrong to even consider whether the executive had overstepped during an emergency?

          1. Absaroka, I think Justice Jackson’s dissent was the best thing to come out of Korematsu. It gets less attention than it deserves.

            As for overstepping executives? Elections, not judges, are the usual remedies for that. Or impeachments. In cases of emergency, more so.

          2. But also, the jurisdictional question was different in Korematsu, because everything was federal. And because national security looks something like pandemic emergency, but the states look after the latter, and the feds look after the former.

          3. I’m trying to understand your position. It sounds like now you think that in the Korematsu case the Court should have forced the executive to end the errr… ‘quarantine’ of the Nisei.

            But before you said “It will never legitimately fall to any United States court to weigh harms against benefits during a(n) … emergency”.

            Which seems to contradict your more recent position.
            (plus, you said ‘any’, not referring to federal/state/whatever … you’d be OK with the states interning the Nisei??).

            FWIW, I think internment was an abomination. But it was based on exactly the principle – the executive taking what it viewed as necessary action to safeguard the public – that you are now suggesting is unreviewable. The people supporting it were following your logic that “As for being challenged by a court, my civil right to life is not subject to court challenge under the current Constitution. My state governor is explicitly empowered to protect my life. Don’t like it? Get an amendment.”

            1. Absaroka, try harder to understand my position. I disposed of your questions already, when I distinguished pandemic emergency from national security issues. And read Jackson.

              1. It’s hard to understand a position that seems self contradictory, which is why I’m asking for clarification.

                And I have, of course, read Jackson, and fail to see how you think it supports your position.

                Are you positing that governors are military commanders? I don’t see how that can fly. And that when they declare emergencies of any sort they have absolute unreviewable powers? Gaaak.

                Jackson’s final paragraph reads “My duties as a justice, as I see them, do not require me to make a military judgment as to whether General DeWitt’s evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution. I would reverse the judgment and discharge the prisoner.”

                How does that last sentence show Jackson supporting your position where the police and courts enforce any order the governor-as-military-commander issues, without judicial review? It seems to directly contradict what you are proposing.

                1. Absaroka, Justice Jackson’s decision is a complicated one. You have missed the point of it. Immediately prior to the bit from Jackson you quoted, he says this:

                  But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.

                  Including that turns around your conclusion about Jackson’s meaning. What Jackson said can be summarized thus:

                  1. For reasons explained above (and not fully quoted here; read the whole dissent again), SCOTUS cannot meaningfully affect what will happen in a case of military necessity. All such questions are up to the military, and restrained mainly politically, and perhaps by the judgment of history, if at all.

                  2. But, it would be a mistake for SCOTUS to endorse such reasoning, as set forward in (1) above. To do that would put the Court’s judgment on principles beyond the limits of the Constitutional basis which is the sole source of its own authority. Bad legal consequences would follow from that. Courts have to stick to their own authority, and not reach out to govern questions outside the reach of their legitimate power. Military necessity is one such question.

                  3. Accordingly, if power to decide the question fell to Justice Jackson—which it will not—he would decide it on the basis of constitutional legal principles, not constitutional military principles—because doing it that way is the only way to decide it within the Court’s legitimate bounds. The Court lacks jurisdiction over military principles.

                  Thus, when Jackson says, “I would reverse the judgment and discharge the prisoner,” he is using “would,” conditionally, not prescriptively. He is saying that is what the Constitution “would” require, if this case were to be decided according to the Court’s legal authority.

                  But Jackson says also that for other reasons having to do with the nature of the case, the Court should not attempt to do that. Because doing so would damage the Court, by entangling it in other Constitutional issues it is not empowered to govern.

                  Jackson in this dissent has acknowledged that there are some Constitutional powers—in this case some executive powers—which lie beyond the reach of the Court’s power to say what the law is.

                  I would not blame you if you concluded Justice Jackson’s dissent is as self-contradictory as you think my comment has been. But it isn’t, really. It is a subtle and brilliant disquisition on the practical and theoretical limits of the Court’s power, and the damage which could follow if those limits are ignored.

                  It ought to be evident to anyone who reads the Constitution that it grants powers which belong only to the executive, or to the legislative branches, or to the states—or sets aside other powers which are retained by the People. Perhaps because this is a legal blog, many among the commenters seem to get stuck trying to grasp one meaning inherent in that plain reading—that the Court does not have universal jurisdiction over everything which government does. Justice Jackson’s dissent was in part about moral outrage, but it was also about recognizing that jurisdictional limit.

                  1. So, to summarize…

                    The courts can’t ever review anything the executive branch does in a Declared Emergency, and ultimately Korematsu was correctly decided by the court at the time, if perhaps for the wrong reasons.

                    1. Armchair, no. “Anything,” is too broad. The question for Jackson in Korematsu wasn’t whether the executive could do, “anything.” It was whether the Constitution empowered the executive, and only the executive, to decide what constituted military necessity during a military emergency. Jackson answered, “Yes,” to that question.

                      But what of, “the moral judgments of history?” On that question Jackson also left a contribution. He said he would reverse the case and discharge Korematsu. By saying that, he made it plain that he thought the military, which was empowered to decide, had not decided correctly, and not even morally.

                    2. ““Anything,” is too broad. The question for Jackson in Korematsu wasn’t whether the executive could do, “anything.” It was whether the Constitution empowered the executive, and only the executive, to decide what constituted military necessity during a military emergency. Jackson answered, “Yes,” to that question.”

                      That’s about as self contradictory as three sentences can be.

                      Can Trump do anything he wants? No, not anything.
                      Well, what can he do? Only what’s necessary.
                      Who has sole discretion to decide what’s necessary? Trump does.

                      Nope. Not gonna get on that train.

                    3. “Can Trump do anything he wants? No, not anything.
                      Well, what can he do? Only what’s necessary.
                      Who has sole discretion to decide what’s necessary? Trump does.”

                      And Absaroka nails it. (That’s agreement, in case there’s any question)

                      Only thing I would add on is point 4

                      “Well, can Courts review if it’s actually neccessary? No, just Trump”

                    4. Okay, Absaroka, I will put you down as denying the pardon power, the sole power of impeachment, the sole power to try impeachments, and the power to command the armed forces. Also, the legislature, in each of its chambers, no longer enjoys power to make its own rules. The question of what constitutes a chamber in session is hereby returned to the Court. And don’t forget, the political questions doctrine is null and void. The Court decides all political questions anyone wants to bring before it.

                      Shall I add you and Armchair to the list of extremely numerous judicial supremacists here at the VC?

                    5. You are wrong about all that. The powers are divided, and deliberately so. It’s not a choice between Donald Trump being an absolute dictator, as you are proposing, or John Roberts being an absolute dictator, as you are suggesting as the only alternative. For goodness sake, this is high school civics.

                    6. Absaroka, if I were making the case for Trump as a dictator, you would not have need, as you seem to think you do, to paraphrase your understanding of me, to get to the critique you prefer. See how well your critique works if you just content yourself with quoting what I wrote.

                    7. “See how well your critique works if you just content yourself with quoting what I wrote.”

                      OK.

                      “It will never legitimately fall to any United States court to weigh harms against benefits during a pandemic emergency”

                      “It was whether the Constitution empowered the executive, and only the executive, to decide what constituted military necessity during a military emergency.”

                      “As for being challenged by a court, my civil right to life is not subject to court challenge under the current Constitution. My state governor is explicitly empowered to protect my life. Don’t like it? Get an amendment.”

                    8. For another example, in 1971 a wartime president – Nixon – tried to use the Espionage Acts[1] to stop the NYT from publishing the Pentagon Papers. The Court disagreed in
                      New York Times Co. v. United States.

                      So there we have the court doing just what you say is invalid – overruling the president in time of war. Before today, I wouldn’t have expected you to be on Nixon’s side in that controversy.

                      [1]dating from some pretty bad days for free speech in WWI

                  2. Thus, when Jackson says, “I would reverse the judgment and discharge the prisoner,” he is using “would,” conditionally, not prescriptively. He is saying that is what the Constitution “would” require, if this case were to be decided according to the Court’s legal authority.

                    “Would” is normal usage for a dissenting Supreme Court justice; without other context, it doesn’t mean something esoteric. It just means “If I were writing for the majority.”

                    1. But the other context is there, right in the preceding paragraph. I think Absaroka ought to take the dissent whole, and not just skip over a piece of it which changes the meaning he wants to assign to the piece he prefers.

                    2. You are not reading it correctly. Jackson is not arguing, as you seem to think, that the Court doesn’t have the constitutional authority to review the order.

              2. Stephen,

                Let’s say instead Beshear ordered only religious services closed while all other activities remained open. Do you think such an order is reviewable by the courts?

      2. I don’t understand pronouncements like “the curve has flattened.” If you go for a walk outside with an umbrella, do you just walk for 15 minutes and then decide that because you haven’t gotten wet, the rain must have stopped?

      3. ” When would a court reasonably no longer defer to the executive branch that the harms of said emergency no longer outweigh the benefits?”

        When a person who wished to remain uninfected by coronavirus could achieve this goal exclusively by their own actions.

        1. So….never?

    6. Stephen, this is a binary decision — and I wouldn’t disagree if the law offices and real estate offices and defense plants and shoe factories and auto parts factories and such were ALSO shut down.

      But they aren’t. And hence your argument lacks merit.

      1. It’s not binary because theaters, restaurants, bars, nightclubs, hair salons, tattoo parlors, gyms, clothing (and many other retail) stores and sporting venues are all closed as well.

        What the court’s decision does not explain is why in-person religious services have to be included with law offices, etc., rather than theaters, etc. for the order to be considered neutral and generally applicable.

  5. Where are the edges of this right to in-person worship? Can I go to Kentucky and demand that the government provide an opportunity to worship as I see fit, and expect them to provide any aspect of the worship that I don’t already have?

    1. That’s a silly example, and I believe you know it. However, in an effort to humor your folly: “No more so than the government owes you a bullhorn or a printing press to exercise your right to free speech” and “No more so than the government owes you a house to exercise your Third Amendment rights”.

      1. “That’s a silly example, and I believe you know it.”

        Indeed, intentionally so. But I consider a good many religious freedom arguments to be equally silly. I suspect some of them, however, of not being intentionally silly. And since an individual’s religious practice is whatever the individual says it is, absolute freedom of religion is a blank check.

  6. This crisis is showing again and again Democrats have zero respect for the First Amendment as applied to Christians.

    1. Alas, the poor oppressed Christians of America. Will they ever escape the death camps?

      1. Out of curiosity, are you aware of the Cristero War? Carried out by those hostile to religion.

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

  7. “And a law can reveal a lack of neutrality by protecting secular activities more than comparable religious ones.”

    What is a comparable secular activity to a religious worship? Narrowly speaking, maybe philosophical discussion groups? More widely maybe, emphasizing the social element, some people make sport their religion, or a hobby. Going to Comicon etc It seems to me that these though are all banned.

    “So long as that is the case, why do the orders permit people who practice social distancing and good hygiene in one place but not another for similar lengths of time?” Easy, I’d say. because even though both are equally risky, the risk of harm by not doing the former outweighs the risk of harm of the latter. If you don’t have funerals, bodies pile up. If you don’t use laundromats, filthy clothing becomes a hazard of its own etc

    I think the court gets doctrinally the entirely wrong end of the stick. It asks if the “comparable activities” are equally risky. It should ask if refraining doing them is equally risky – that’s the “life sustaining” element.

    That does not mean that some of the permitted activities should not be there. But there seems to be a clear rational

    1. ” If you don’t have funerals, bodies pile up.”

      Assuming that one cannot have interment without throwing the dead guy one last party.

    2. Burkhard, philosophical discussion groups? Only if they include singing, and mutually pass their books around.

  8. “What is a comparable secular activity to a religious worship?”

    The answer will be different based on whether one is or is not of a similar religion. From outside, religions are most like private clubs. Or gathering to watch a variety show with musical guests.

    1. FYI, this is offensive and not empathetic in the least.

      But, you knew that.

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