Freedom of Religion

Court Suggests That Lockdown Exemptions for Religious Institutions Violate the Establishment Clause,

at least when they specifically target religious institutions, and not similar secular entities.

|The Volokh Conspiracy |

In Friday's Spell v. Edwards, Judge Brian A. Jackson (M.D. La.), rejected an argument that Louisiana Gov. John Bel Edwards' shutdown order (which limited indoor church gatherings, among other gatherings, to at most 10 people) violated the Free Exercise Clause. But the court also suggested that an exemption specifically targeted to church worship services—which some other states have indeed implemented—would actually violate the Establishment Clause:

At the core of their argument, Plaintiffs submit that their congregation "is a large assembly of more than 2,000 individuals" whose religious beliefs require them to assemble for church in person. Additionally, Plaintiff Spell avers that he is imbued with a "duty to lay hands on the sick and pray for them so that they may become well," which, along with holy communion and the love offering, would lose meaning absent a public gathering….

In determining "the framework governing emergency public health measures," the United States Court of Appeals for the Fifth Circuit has looked to the Supreme Court's decision in Jacobson v. Massachusetts (1905). See In re Abbott (5th Cir. 2020). Indeed, the Supreme Court has long recognized that "liberty secured by the Constitution" is not absolute in the face of an epidemic, but rather that a community "has the right to protect itself against an epidemic of disease which threatens the safety of its members." Jacobson.

The Supreme Court has also recognized that "[T]he right to practice religion freely does not include liberty to expose the community … to communicable disease or the latter to ill health or death." Prince v. Massachusetts (1944)…. "'[U]nder the pressure of great dangers,' constitutional rights may be reasonably restricted 'as the safety of the general public may demand.'" Abbott (quoting Jacobson)….

Plaintiffs argue that the orders are discriminatory and disparately applied because they permit other "similarly situated non-religious businesses" such as "big box retailers, groceries and hardware stores" to remain open to crowds larger than 10 people. Indeed, a law "lacks neutrality where it refers to a religious practice without a secular meaning discernable from the language or context."

At the hearing on the instant Motion, Defendants argued that the transient, in-and-out nature of consumer interaction with businesses, like those identified by the Plaintiff, are markedly different from the extended, more densely packed environments of churches, or from nonessential businesses that have been fully closed, including aquariums, museums, arcades, theaters, bars, gymnasiums, and more….

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor's orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs' rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

Plaintiffs' Establishment Clause claim is equally unlikely to succeed, as imposing harms on third parties by exempting religious exercise from requirements of the law may impermissibly favor the benefited religion over non-beneficiaries. Estate of Thornton v. Caldor, Inc. (1985). The Supreme Court held in Estate of Thornton that a Connecticut statute violated the Establishment Clause by providing Sabbath observers with an absolute right not to work on their chosen sabbath. A statute (or order) must not have a primary effect of advancing or inhibiting religion. Shielding Plaintiffs' congregation of 2,000 from the Governor's orders based solely upon their preference to assemble larger groups for their services may amount to a carveout that is not available to other non-religious businesses, in violation of the Establishment Clause….

When the Establishment Clause bars preferential exemptions from generally applicable laws to religious people or religious institutions—exemptions that aren't given to political organizations, social organizations, and the like—is an unsettled question, especially when those exemptions can be seen as imposing considerable secular burdens on third parties. Compare Thornton and Texas Monthly, Inc. v. Bullock (1989), which strike down such exemptions, with Corp. of Presiding Bishop v. Amos (1987), which upholds it, and Cutter v. Wilkinson (2005), which doesn't resolve the question.

Cutter, the Court's most recent treatment of the question, says that that religion-only exemptions are constitutional if they

  1. "alleviate[] exceptional government-created burdens on private religious exercise" and
  2. "take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries."

But Cutter doesn't explain how to decide what might constitute a possibly forbidden "burden[] … on nonbeneficiaries": is it limited to legally binding obligations on third parties, as in Thornton, or also diminution of legal protection offered third parties, e.g., from the spread of communicable disease? (Compare Amos, which seems to limit the Thornton principle to situations where a religious exemption imposes a legally binding burden on a third party.) And Cutter also doesn't explain what is to be done when element 1 is present—the exemption does lift an exceptional government-created burden on religious exercise—but element 2 is not, because the exemption lifts the burden on religion without taking into account the burden that the lifting imposes on third parties.

The court also noted that defendants' request for injunctive relief may be moot because on Friday the Governor relaxed the lockdown, providing that "churches and other faith-based organizations are permitted to hold indoor services with up to 25% capacity of total occupancy."

NEXT: Today in Supreme Court History: May 17, 1954

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. This is a bit of an odd argument. By providing an exception for religious beliefs and/or services, it in effect “makes” a law respecting religion, and thus violates the first amendment? Is that the argument in essence?

    What other situations would this extend to?

    1. Are there any religious exemptions to laws regulating the humane slaughter of animals or attempting to prevent animal cruelty?

      1. I’d argue that Halal Butchers come damn close…

      2. Rabbi: Sure, see, e.g., Cal. Food & Ag. Code § 19501:

        (b) All cattle, calves, horses, mules, sheep, swine, goats, or fallow deer … or poultry [subject to these rules, except spent hens and small game birds] shall be slaughtered by either of the following prescribed methods:

        (1) The animal shall be rendered insensible to pain by a captive bolt, gunshot, electrical or chemical means, or any other means that is rapid and effective before being cut, shackled, hoisted, thrown, or cast, with the exception of poultry which may be shackled.

        (2) The animal shall be handled, prepared for slaughter, and slaughtered in accordance with ritual requirements of the Jewish or any other religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument.

        1. It would seem that this particular interpretation of the first amendment, taken to its logical conclusion, would effectively outlaw Kosher and Halal meat.

          Is that really what it means and what it should be interpreted as?

          1. I think you missed the second prong of the test. Giving exemptions to Halal/Kosher butchers does not impose burdens on anyone else.

            1. I’d argue it does. Among other items.
              1. It exposes the animals slaughtered this way to excess pain and suffering, as compared to the approved methods.

              1. You think making an animal rights case against Jewish and Muslim practices will fly?

                Not with agribusiness treating animals like it does.

    2. That’s precisely the argument; The First Amendment forbids government to treat religion either better or worse than it treats non religion. If there’s a legitimate reason to ban gatherings then the fact that it’s a religious gathering is irrelevant.

      During Prohibition there was some litigation over whether churches that required that real wine be used for communion were entitled to an exemption. The courts generally said no, but some states provided for an exemption by statute. During the Vietnam War there was litigation over a law that provided conscientious objector status if it was religion based but made no similar exception for atheists who opposed the war. So yes, the issue has come up in the past.

      1. Didn’t SCOTUS rule (the second time) that the atheist could also have conscientious objector status as well?

      2. Krychek_2: My understanding was that federal law during Prohibition provided an exemption for sacramental wines. Am I mistaken on that? Or are you just referring to some state prohibition statutes?

        1. I’m referring to some states that had statutes that did not allow sacramental exemptions and the court cases I’m referring to were primarily state courts interpreting their own Constitutons. You’re right that federal law did allow such exemptions. Churches in those states were forbidden to use wine even though federal law permitted it.

      3. “The First Amendment forbids government to treat religion either better or worse than it treats non religion”

        Not exactly. The First Amendment is regards to religion, makes two statements.

        1. No law respecting an establishment of religion.
        2. (No law) prohibiting the free exercise thereof.

        Now, interpretation is everything. According to this…usual… interpretation, any exception for religion, for any purpose is essentially banned. IE, Zoning codes, health codes, liquor laws, etc. One could imagine it essentially being used to ban communion wine, because the church didn’t have an alcohol license, and without an alcohol license, it’s illegal to “distribute” alcohol.

        If it wasn’t a religion, of course, such an exception could be drawn up for the minimal amount of alcohol distributed. But…it’s religion, so no exceptions can be made. Effectively, such an interpretation can treat religion as worse than non-religion activities.

        1. Edit “Unusual interpretation.”

        2. An “establishment of religion” does not mean treating religious activities better than non religious activities, it means treating the activities of one religious sect better than the activities of others.
          However, the ungodly have determined to pretend that it means the former, so we will have to put up with that for the time being. Though obviously they will burn in Hell, and deservedly so.

          However, on that ungodly, and mistaken, interpretation, the 1st Amendment itself makes an “establishment of religion” by insisting that the free exercise of religion may not be prohibited. No such protection is afforded to the free exercise of square dancing, pigeon breeding, fornication or baseball.

          Consequently it’s perfectly OK to carve out, from general prohibitions, anything that prohibits the free exercise of religion. It’s OK because if the law doesn’t do that, it’s breaching 1A.

          On the other hand, as Armchair Lawyer points out, so long as a general prohibition gets over the no-prohibiting-free-exercise hurdle, the law is not permitted to make any additional concessions to religion; whereas concessions to square dancing, pigeon breeding, fornication or baseball are fine.

          So 1A (as interpreted by the ungodly) allows both preferential treatment for religion (if free exercise is at stake) and also disadvantageous treatment (otherwise.)

          However this would all be a lot easier to follow if we stopped pretending that an establishment of religion has got anything to do with comparing the treatment of the religious with the treatment of the heathen. It has to do with establishing the Church of England, or Ireland, or wherever, in a legally privileged position as against some other religious sect.

          1. Lee,

            It’s an excellent point, which I hadn’t thought of. If hypothetically the phase “No law respecting an establishment of religion” actually meant “No law that in any way provides any exceptions, advantages, specific freedoms, etc. for religion,” then the very next phrase in the US Constitution is contrary to that.

            1. But even if it did mean that, it’s not a contradiction. The constitutional prohibition is on Congress (or as applied against the States, the States) making laws respecting an establishment of religion. There’s no prohibition on the Constitution doing so.

              1. It’s not a direct contradiction, no. But in the context, it would seem very, very odd to say one thing, then right afterwards say the opposite.

                It’s as if the 18th and 21st amendment were right next to one another and written at the same time.

            2. Lee, and Armchair Lawyer:
              I see three problems with the position you have taken.
              First, even under the expansive freedom for religion that you espouse, are you really arguing that no limits can be placed whatsoever? Because if so, then I go back to my favorite hypothetical: The 9/11 hijackers were practicing their religion, so unless there are limits on the ability to practice religion, they get a free pass for what they did. And if you agree with me that hijacking planes isn’t protected, even when done in the name of religion, then we both agree that there is an outer limit, we just don’t agree on where precisely to place it.
              Second, why does your conscience, which is based on religion, get a free pass when my conscience, which is based on reason and science, doesn’t? And that’s the real problem with a religious exemption: It prefers religion over non-religion, which is itself an establishment of religion. I’m not saying there should never be religious exemptions; that is not my position. But do I get them too?
              Finally, Lee, with respect to your comment about how I’m going to burn in hell, the problem is that you want federal judges to do a different job than the job they were hired to do. They were hired to answer the question of what does the First Amendment mean, not what does the Bible say. If the First Amendment, properly interpreted, means that religion doesn’t get special rights, then that’s what it means whether you think it’s good policy or not. I realize we disagree on whether that is the proper interpretation, but assume for the sake of argument that I’m right. If I’m right, then the judge’s job is to answer the question that way, whatever your conscience may have to say about it. Same with abortion. Same with gay marriage.

              1. 1. “are you really arguing that no limits can be placed whatsoever?”
                No. This is a strawman argument. Neither of us ever argued that.

                2. “Second, why does your conscience, which is based on religion, get a free pass”

                -See “conscientious objector” statues and how they apply, if you’re worried about your conscience, in regards to religion versus non-religion.

              2. First, even under the expansive freedom for religion that you espouse, are you really arguing that no limits can be placed whatsoever?

                No. I think the problem is incorporation against the States. Happy to fry your hijackers under State law.

                why does your conscience, which is based on religion, get a free pass when my conscience, which is based on reason and science, doesn’t?

                Well, stipulating as you suggest, the answer is that the text mentions that Congress may make no laws prohibiting the free exercise of religion. It fails to mention anything about reason, science or philosophy.

                Relaxing your stipulation – I am not religious, but my conscience (such as it is, and Mrs Moore has no high opinion of it) is, like yours, largely based on religion – mostly Judeo-Christian teachings, marinated over the centuries into the weak, milky ethics of modern Western liberals. And very likely a good admixture of evolutionarily derived psychological software.

                It is, btw, technically impossible for your conscience to be based on “reason and science.” No doubt reason and science can help inform your conscience, but you also require some values – which reason and science cannot supply you with. If you limit yourself to reason and science, all your moral computations will involve the equivalent of multiplying by zero, and all courses of action will look alike.

                that’s the real problem with a religious exemption: It prefers religion over non-religion, which is itself an establishment of religion.

                As discussed with Armchair Lawyer (stipulating that giving preferential treatment to religion is establishment) – 1A does not prohibit the Constitution itself from making “an establishment of religion” , rather it requires it . The prohibition applies to Congress.

                As to whether this is a good thing or not, opinions will differ. But the opinions of competent readers will not differ on the question of whether or not special treatment for religions is required by the text of 1A. It is, in black and white.

                Finally, Lee, with respect to your comment about how I’m going to burn in hell, the problem is that you want federal judges to do a different job than the job they were hired to do.

                I suspect the problem is that you may be a little on the earnest side. Which is no bad thing. I am certainly much too frivolous, as Mrs Moore does not scruple to point out.

                As to the proper role of Judges, I agree that we want Judges to interpret what is there in the text, and not what they – or even I – would like to find there. So long as they do that honestly and competently we cannot fairly complain about them.

                1. 1A does not prohibit the Constitution itself from making “an establishment of religion” , rather it requires it . The prohibition applies to Congress.

                  Yes, which is why the legal provisions being challenged here are not constitutional provisions but provisions of Louisiana law. Unless you’re arguing that Louisiana was somehow Constitutionally obligated to make those laws, I’m not sure what the relevance of your point is.

                  1. I was explaining to Krychek what the text of 1A means. Since he was asking, indicating some possible confusion :

                    “why does your conscience, which is based on religion, get a free pass when my conscience, which is based on reason and science, doesn’t? ”

                    Louisiana doesn’t enter into it.

                2. Lee, as deeply polarized as our country already is, and with all the anger on both sides at each other, I cannot think of a better way to make bloody civil war a reality than allowing the states to establish religion. That would be throwing a lit match in the gas can. One of the few things keeping us from tearing each other apart is that no religion has the ability to seize power.

                  With respect to your point about reason and science not being able to provide values, that is simply false. What you call values, I call achieving a desired result. Now, if your argument is that “desired result” is itself a value-laden term, I would respond that if you honestly need someone to explain why having a full stomach is preferable to starving to death, why not being in pain is preferable to being in pain, and why not having Covid-19 is preferable to having it, then I don’t know how you function on a day to day basis. Try living just one day as if one of those results really is as good as another, and let us know how it worked out for you.

                  1. The Republic survived for its first few decades with established State churches and no civil war. And when civil war came it didn’t have anything to do with establishment. Which is not to say that I favor Established Churches.

                    Your attempts to wish away the logical necessity of values hints at a weak commitment to reason and science, which do not doubt the critical importance of values to value judgements. If you are reduced to insisting that being alive is better than being dead, because it just is, fear not – you’ve found a value.

                    Moving from the terrain of moral philosophy to that of psychology, however, you can perhaps dig a little deeper than the “because it just is” of moral values.

                    Pain is “worse” than not-pain, because pain is an evolved mechanism which encourages you to avoid or minimise encounters with things that damage your body. But there are overrides, as when adrenalin may suppress pain, in circumstances where bearing a bit of pain to get yourself away from the tiger may be even more useful to the survival of your body.

                    Now here the “value” being deployed is not moral value but evolutionary value. The unthinking evolutionary algorithm favors the survival of traits – eg avoiding pain – that assist survival and reproduction (which are the same thing, but on different timescales); and disfavors traits – eg welcoming pain – that do the opposite. The evolutionary evaluation is of course subtler than that – animals, including humans, and especially animals of the nearly superfluous sex, will often put up with high risks of pain and death, in exchange for the opportunity to plant some sperm in the right place.

                    These evolved psychological mechanisms, though not even slightly “moral” per se, are the explanation for why all three of your “it just is” examples occur so naturally in your mind, with the force of obviousness. Evolution is a good explanation for many – though not all – of your moral “values.”

                    But returning to the cold and dessicated wastes of moral philosophy, I’m afraid you really do need some values for value judgements. Science and reason are insufficient.

                    1. The Republic survived its first few decades with established churches in an era in which the overwhelming majority of people lived here was Christian and any disputes were over which specific flavor of Christianity. I very much doubt that the same results would be achieved in a nation with large numbers of Jews, Muslims, Hindus, pagans, and unbelievers. Particularly after a half century of expectations of not having an established state church. Maybe not, but I sure wouldn’t want to risk that you’re mistaken.

                      If you think I’m arguing “it just is” then you didn’t really understand what I said. Go back, read it again, more carefully this time, and I’m sure you’ll see that that could not possibly be any further from my actual argument.

                    2. Hint: I started out by talking about “desired” values, which should have been a clue that my analysis isn’t limited to what is.

                    3. You misunderstand.

                      “it just is” refers to “it just is more desired”

                      I claim “more desired” connotes a value, undiscoverable from reason and science alone.

                      Now explain on the basis of science and reason alone, why being alive is “better” than being dead. Not better for your prospects of leaving offspring, but morally better.

                    4. No, I didn’t misunderstand. “It just is” and “it is just more desired” do not refer to the same thing. And that’s illustrated by your extremely badly framed question about why is it better to “be” alive than dead, by which you have assumed a posture of “it just is.”

                      Morality is not concerned with states of being. Morality is concerned with action and inaction (or precursors to action and inaction). It may try to change a state of being (though in the case of a corpse there’s little morality can do), but whether you are a moral person or not has to do with your acts, not your status. So, is there anything moral about “being” alive or dead? No, but that’s not the question.

                      The appropriate question is whether it is more moral to act in a way that makes it more likely that you will continue to remain alive. In general (with some limited exceptions, like having end of life physical pain that you can no longer bear) the answer to that question is yes. Because the possibility of valuing anything at all presupposes being alive. If you don’t have life, then you are unable to have values. It’s a little like arguing for the existence of logic: The discussion is only possible if one presupposes the existence of logic. Otherwise, it’s a meaningless question.

                      Likewise, values presuppose the existence of life. If you’re not alive, this is a meaningless conversation. So, unless you’re prepared to abandon values altogether — in which case, just try living 24 hours as if you have no values and let us know how it worked out for you — morality, of necessity, includes acting in a way that furthers keeping you alive.

                    5. So, unless you’re prepared to abandon values altogether

                      er, it’s me arguing that you need values to decide questions of conscience, and you arguing that you don’t, and that you can get by with science and reason alone.

                      in which case, just try living 24 hours as if you have no values and let us know how it worked out for you — morality, of necessity, includes acting in a way that furthers keeping you alive.

                      I agree. Values are necessary to survival. Survival values – see my discussion of the evolution of survival instincts. But that doesn’t explain why survival – or acting so as to remain alive – is a good thing, morally. Still less does it explain why my acting to keep you alive is a good thing, or vice versa, is a good thing.

                      Your whole spiel relies, even as sophistry, on the life v death question, and the banality that a value can have no moral application in the absence of any moral beings. In practice, unless we happen to be planning global thermonuclear war, life v death questions that may trouble our consciences tend not to posit the complete elimination of humanity.

                      Now do pain, where you can’t try that wheeze.

                      Why’s pain bad ? Or if we must be pedantic, why’s acting so as to reduce pain, or the risk of it, bad ? Morally.

                    6. OK, I see the problem. You’re assuming values need a source outside science and reason, which is manifestly false. Science and reason are presuppositions, and my values flow from those presuppositions. So when you say “er, it’s me arguing that you need values to decide questions of conscience, and you arguing that you don’t, and that you can get by with science and reason alone,” you’ve started out on the flawed assumption that values are separate from science and reason. They’re not. I have values *because* I subscribe to science and reason. So, since you didn’t understand my premise (third time today), it’s not surprising that you didn’t follow it to my conclusion.

                      Why, morally, is it a good thing to act to keep myself alive? Because the alternative would be to deprive myself of all the wonderful things life has to offer. Life is so wonderful, so spectacular, so awesome, that a rejection of it in favor of the negation that is death could only come from someone totally lacking in appreciation for what he’s casting aside. It’s as if you traded in your wife for a twenty dollar hooker. It’s immoral for the same reason it’s immoral to choose dog vomit over dinner at a five star restaurant.

                      And why is it moral for me to help keep you alive, should I ever be faced with the opportunity to do so? Because living in a society in which people help each other increases the likelihood that my own life will be longer than it would be otherwise, and also that I will derive that much more enjoyment out of the life that I have. It’s called enlightened self interest. Spend a few minutes actually thinking through what it would be like to live in society that just allowed people to die in the streets. Would you want to live in that society? Me neither. So, even though I realize that keeping you alive means more fuzzy thinking in the world, the cost/benefit analysis still weighs in favor of doing so.

                    7. Why, morally, is it a good thing to act to keep myself alive? Because the alternative would be to deprive myself of all the wonderful things life has to offer. Life is so wonderful, so spectacular, so awesome, that a rejection of it in favor of the negation that is death could only come from someone totally lacking in appreciation for what he’s casting aside.

                      You’re just handwaving. Life is good, because it’s great ! That’s not science or reason, it’s just failing even realize that you’ve begged the question.

                      There are plenty of circumstances in which people have chosen death instead of life – the 9/11 folk for example. They thought it would be better to kill a lot of people and to die themselves in the attempt. Other folk have thought that other things were more valuable than their lives – their honor, truth, loyalty, refusal to surrender, solidarity, love, obedience, God’s will.

                      How do you demonstrate that they were all morally wrong, appealing only to reason and science ? Keeping your hands behind your back.

                    8. And here, by chance, only a few minutes after writing my last effort I find Sima Qian saying this :

                      When I followed by submitting to the “silkworm chamber ” I became a second laughingstock. Oh, such shame! This is not something I could ever bring myself to recount to an ordinary person.… A man dies only once. His death may be a matter weighty as Mount Tai or light as a feather. It all depends on the reason for which he dies. The best of men die to avoid disgrace to their forbears; the next best to avoid disgrace to their persons; the next to avoid disgrace to their dignity; the next to avoid disgrace to their word. And then there are those who suffer the disgrace of being put in fetters; worse yet those disgraced by the prisoner’s suit; worse yet those in shackles; worse yet those who are flogged; worse yet those who with shaven heads and iron chains around their necks; worse yet those who suffer amputations and mutilations. But the very worst disgrace of all is castration.
                      …How could I have plunged myself into the ignominy of bring tied and bound? Even a captive slave-girl is capable of putting an end to herself, and surely I could have done so as well, had it been the inescapably correct path. The reason why I bore the intolerable and clung to my life, refusing to release myself from the filth into which I had been cast, was the remorse I felt at the prospect of leaving the achievement dearest my heart incomplete, quitting the world like a vulgar nonentity with the written emblem of my lifework unrevealed to posterity.”

                      He chose life over death, but hardly because life was great. His justification for staying alive was to avoid the remorse of leaving his history unfinished. But along the way he explains the long chain of values that make death “light as a feather” compared to disgrace.

                      Where in science or reason do we find that death is better than disgracing ones forbears ? Or even the other way round ?

                    9. Yes, there are circumstances under which someone could rationally choose death over life, but those circumstances are extreme and outliers. There are circumstances under which I could morally kill someone else, but those circumstances are also outliers. And outliers don’t change what is generally true.

                      Do you seriously entertain any doubt that you are better off alive than you would be dead? Because remember, one form of scientific proof is experience. I’m not talking about anecdotal experience; I’m talking about the shared common experience of most of humanity that has led to a consensus that we are better off alive than dead. And morality ultimately rests on whether we are better off.

                    10. Yes, there are circumstances under which someone could rationally choose death over life

                      It’s not a rational choice. Reason cannot tell you whether death is better than dishonor, that depends on the values you place on death and dishonor. Those values are arbitrary, not rational.

                      And morality ultimately rests on whether we are better off

                      But that depends on what is “better” on your scale of values. I may think death is better than dishonor, and you may think the opposite. Reason and science are not going to help resolve that disagreement, because the disagreement is not a scientific or rational one, it’s a difference of values.

                    11. You’re ignoring the fact that humans evolved to live in community, and would not do well living as hermits in caves. (Yes, I know, some choose to, but they’re outliers.) That means that at least some of the time, morality is guided by what the community needs, and under normal circumstances, preserving life makes stronger and better communities. (Yes, I know, with overpopulation that balance may be shifting, but I’m talking about what has historically been the case.

                      And it is rational to say that as a general proposition, there is a reason that individual values tend to synch with community values. As it happens, it is both illegal, and frowned on by most community members, to commit murder, burglary, rape, or armed robbery. There’s a cone of certainty, with those things at the top and there being very little doubt. Moving on down the cone to things like lifestyle choices and religious beliefs, there’s not so much agreement, because the stakes are lower.

                      Your argument that that’s only true in my scale of values takes us back to the rhetorical questions I posed earlier: Do you really doubt that you (and the community) are better off for you being alive, or not being in pain, or not having the Covid-19 virus? If you really think those things are just a personal preference then please, without citing to outliers, give me the argument for why.

                      Reasonable minds may differ on whether death is preferable to dishonor; I suppose that depends on how great the dishonor. But the answer to that question will be based on a difference in how to apply general principles, and not on the principles themselves.

                      Now, a question for you: Under your system, in which morality is entirely a matter of personal values, is there any internal compass at all to prevent me from killing someone for a million dollars if I think I can get away with it? If not, I don’t think I would have any interest in living in any society organized by you.

                    12. And it is rational to say that as a general proposition, there is a reason that individual values tend to synch with community values.

                      Sure, I believe I mentioned evolution previously. But this is all just a (scientific) explanation of why humans attach values to particular things. It has nothing to do with the logic of moral philosophy – that without values you cannot show that X is morally better than Y, however rational you may be.

                      Your argument that that’s only true in my scale of values takes us back to the rhetorical questions I posed earlier: Do you really doubt that you (and the community) are better off for you being alive, or not being in pain, or not having the Covid-19 virus? If you really think those things are just a personal preference then please, without citing t,io outliers, give me the argument for why.

                      All you’re doing is citing a set of values and assuming that because almost everybody is going to agree with them, they somehow don’t count as values. But they do.

                      Reasonable minds may differ on whether death is preferable to dishonor

                      True.

                      I suppose that depends on how great the dishonor. But the answer to that question will be based on a difference in how to apply general principles, and not on the principles themselves.

                      No, you’re back to confused mudge again. The “principles” that are general are the principles of reason, ie logic. And there are facts that are general too, ie science. Thus the proposition :

                      “I must not give Miguel that cup of coffee, because it has strychnine in it and it will kill him”

                      has got a teaspoonful of reason and science in there – strychnine, as a matter of scientific fact, probably will kill him. But it also has a value – that killing people is morally wrong – that cannot be derived from reason and science, however many people agree with it.

                      You may argue with the proposition, on the basis of reason and science, if for example you have good evidence that coffee neutralises te effect of strychnine.

                      But you can’t argue about the value proposition on the basis of reason and science, you have to introduce a competing value proposition. Thus “killing people, except child molesters, is wrong” ; and since Miguel is a child molester, killing him is OK.

                      So while it is true that some moral arguments are resolvable by science and reason alone – because one party is just mistaken as to the facts, or has screwed up their chain of reasoning; in most cases moral arguments are about different values that different people place on different matters.

                      Because you are (understandably) determined to stick to values that pretty much everybody shares – the general preferability of life over death, absence of pain over pain, absence of disease over disease, you fool yourself into imagining that you can do without values.

                      But you can’t.

                      And pretending that you can derive values from science and reason simply indicates that you have a hazy conception of science and reason.

              3. “And that’s the real problem with a religious exemption: It prefers religion over non-religion, which is itself an establishment of religion.”

                See, there’s your problem, right there: “An establishment of religion” isn’t just any old religion, it’s a state church, like the Anglican church in England. Several of the states had state churches at the time, and the 1st amendment prohibited any legislation on the topic of establishment of religion, so that the new Federal government could neither establish it’s own competing church, nor mess with the states having their own.

                1. There are many Founders righting to the contrary of that interpretation, particularly Jefferson.

                2. So is it your position that the states may still establish a state church? This includes Hawaii, which is majority Buddhist? If so, we just disagree. And, as I said to Lee, I can’t think of a better way to start a bloody civil war than to allow established state churches in 2020. That may have worked when everyone was Christian, but if your think our non-Christian citizens would quietly sit back for that, think again.

                3. the 1st amendment prohibited any legislation on the topic of establishment of religion.

                  That’s the Clarence Thomas view of the word “respecting” in the Establishment Clause. The prevailing view, one supported by precedent, is that “respecting” means giving a privileged position to.

          2. An “establishment of religion” does not mean treating religious activities better than non religious activities […] However, on that ungodly, and mistaken, interpretation, the 1st Amendment itself makes an “establishment of religion” by insisting that the free exercise of religion may not be prohibited

            Under Employment Division v. Smith, the Free Exercise Clause does not mean treating religious activities better than non-religious activities.

          3. So 1A (as interpreted by the ungodly) allows both preferential treatment for religion (if free exercise is at stake) and also disadvantageous treatment (otherwise.)

            Huh? I thought the Free Exercise Clause prohibits disadvantageous treatment of religion (Church of the Lukumi Babalu Aye v. City of Hialeah) while the Establishment Clause sometimes prohibits preferential treatment of religion (Estate of Thornton v. Caldor, Inc. and sometimes does not ( Corp. of Presiding Bishop v. Amos, Cutter v. Wilkinson).

          4. I don’t know if you’ve noticed, but Christianity is a lot more “Established” in the US today than the Anglican Church is in England.

      4. “The First Amendment forbids government to treat religion either better or worse than it treats non religion.”

        That explains the free exercise of non-religion clause in the 1st amendment. It was added when the drafters realized just mentioning free exercise of religion might give the impression they were trying to give religion some special protection.

  2. The principle of separation of church and state is more about non-interference than equal treatment. The analogy would be that of taxes. Churches pay no taxes, rather than ‘equal’ taxes.

    1. With respect to taxation, I believe charitable 501(c) organizations don’t have to pay taxes but I seriously doubt that PETA would be allowed to exercise their right to protest during a general quarantine. Does a religious group have a greater allowance to exercise their rights than a secular group because of the First Amendment? It appears so.

      1. Rabbi — my issue is ANY group being allowed to assemble, i. e. law firms. If they can, than a church can.

    2. librarian: Churches pay (roughly) equal taxes to other nonprofits, in that both religious and secular nonprofits are generally tax-exempt. There are a few somewhat controversial distinctions (such as the parsonage exemption), but that’s the rough picture — and in Texas Monthly v. Bullock, the Court concluded that a sales tax exemption specifically for religious works published by religious faiths violated the First Amendment.

      1. I stand corrected. Too much wishful thinking on my part.

      2. Colleges are also generally tax-exempt.

        1. They’re also non-profits for the most part.

          1. At least nominally. Some of them, such as Harvard, have with some justice been described as “mutual funds that also educate people on the side”.

            I think the law on non-profits needs to take a closer look at management compensation; Some supposed “non-profits” are absolutely being run for profit, it’s just that the profit goes to the upper management, rather than to any stockholders.

            1. No doubt this is an issue in every non-profit. And yet you only care about higher education…

  3. Establishment Clause is a federalism provision like the 2A that should obviously resist incorporation. The RKBA should be incorporated pursuant Cruikshank and not the 2A. So the interpretation of the 2A in Heller means incorporation is unnecessary because it was the one BoR amendment that always applied to individuals in the entire free state of America.

  4. If this is moot, then why wasn’t _Roe_?

    1. Good question — have you had a chance to have a look at Roe, and see what it says about why the Court didn’t reject that case as moot?

      1. My point exactly — this issue is also likely to re-occur again.

        1. Dr. Ed: Well, here’s the language from Roe v. Wade:

          But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be “capable of repetition, yet evading review.”

          Given that, to my knowledge, an epidemic-related shutdown of public gatherings (religious and otherwise) has happened precisely once in my 52-year lifetime, I doubt the analogy to pregnancy (“Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us”) is particularly strong.

  5. The idea that leaving people alone to run their affairs ESTABLISHES anything is ludicrous — more sophistry and bigotry, nothing less.

    1. The point is leaving them alone when other people who aren’t religious aren’t being left alone.

      1. The right (of religion/worship) exists whether you like it or not, or whether choose to recognize it or not. The right does not come from you, therefore you have no right to infringe upon its exercise — PERIOD!

        1. Really? Since the 9/11 hijackers were practicing their religion, no one should have interfered with them? Any religious practice is beyond the reach of government?

          Methinks you have not thought this one through.

          1. Their right to their religion ends where my right to life begins — try again.

            1. And the right to congregate ends where the need to stop a deadly disease begins. Covid-19 isn’t quite as dramatic as 9/11 because it kills in weeks rather than moments, but the principle is the same.

              1. And you have proof that these individuals are infectious? And are spreading with malice? Or at least forethought? Obtained with probable cause and due process I am sure … or is AIDS the only politically protected plague?

                Rights do NOT end because YOU are afraid.

                1. That’s not the standard. The standard is whether there is a rational relationship between the government policy and the evil it seeks to combat. When a virus is being spread through close contact, is it a rational response to limit or ban close contact? Answer: Yes.

                  By the way, I don’t hate religion. I hate that it has a massive sense of entitlement and always thinks its needs take priority over everybody else’s needs. And a lot of the raw rage from religion that we are seeing stems not from nasty things being done to it, but from being told that it doesn’t get special rights; that the same rules apply to it as apply to everybody else. And if you want to know why religion has fallen into disfavor among so many people, look no further than that massive sense of entitlement. When people are dying, this is not the time to insist that you are entitled to special treatment.

                  1. Unless they are on YOUR property, you do NOT have a say!

                    And the standard is Congress shall make NO law, and since incorporation, that’s going to include ALL levels of government.

                    And you want to talk entitlement? How many exceptions to their “rights” are homosexuals and baby-killers entertaining????

                    They do NOT need your permission … stay in your lane.

                    1. Well, no law means the 9/11 hijackers get a free pass. You can’t have it both ways. No law either means what it says or it doesn’t.

                    2. Unconstitutional laws are unconstitutional.

                      Is any right unalienable?

                    3. I’m not sure inalienable (not unalienable) means what you seem to think it means. The short answer is that there is no such thing as a right with no exceptions. Even the right to life disappears if you commit a murder in a death penalty state.

                  2. The last time I checked, murder was still against the law …

                    Along with liberty, the protection of life and freedom of religion/thought are the cornerstone of freedom.

                    Your talking-point is not any better with age.

                    1. And last time I checked, congregating in violation of a stay at home order is against the law too.

                    2. The last time I checked, “murder” still being against the law was a tautology, since “murder” is defined as unlawful killing. It’s logically impossible for murder to not be against the law, but this says nothing about whether killing is going to be against the law.

                      In New York, infanticide is now legal, so long as it’s done by a medical professional within a few days of the birth.

                    3. DWB, the founders “Liberty,” was not libertarian liberty. At the time the Constitution was drafted, what the founders generally meant when they said, “liberty,” was self-government on majoritarian principles, under popular sovereignty. Even prior to the Declaration of Independence, they were equating liberty with representation in parliament.

        2. DWB, actually, the right does come from him, in the sense that he enjoys a share in the joint sovereignty of the People. There may indeed be natural rights, or some other kinds of rights, which preexist government, and get vindicated by God, or Nature, or who knows what. But the rights enumerated in the Bill of Rights are not those.

          The advantage of a Bill of Rights is precisely that. It is that rights proclaimed by a sovereign offer assurance of practical vindication, by sovereign power. When a sovereign expressly commits itself to particular rights, it solves the otherwise intractable problem that rights for individuals stay the hand of government, and keep it in constraints, but individuals, lacking power commensurate to government’s, are usually helpless to vindicate rights on their own. Sovereign power—being greater than government power—provides the solution. But it does so only with respect to the rights it proclaims.

          As for preexisting rights, when you need your preexisting rights vindicated, look to God, or to Nature to do it for you.

          1. I heard Pharaoh held a similar opinion …

            1. DWB, Pharaoh proclaimed a Bill of Rights?

              But if you disagree with my opinion, by all means, look to Nature and to God to vindicate your rights.

              1. Smith and Wesson might also have a say …

                1. DWB:

                  Romans 13:
                  Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. 2 Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. 3 For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and you will be commended. 4 For the one in authority is God’s servant for your good. But if you do wrong, be afraid, for rulers do not bear the sword for no reason. They are God’s servants, agents of wrath to bring punishment on the wrongdoer. 5 Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also as a matter of conscience.

                  Now, why should I take your religion seriously when you obviously don’t?

                2. Weird how often the commenters here bring dark predictions of Civil War.

                  Nothing says you have faith in your argument in the marketplace of ideas like imposing it at gunpoint.

                  1. Sarcastro, the very point is that certain commenters don’t want their ideas subject to the marketplace of ideas; they want it imposed by force. It’s frequently the same people who demonstrate their contempt for the marketplace of ideas by referring to democracy as mob rule and supporting anti-democratic measures like the electoral college.

                    1. To spin this conversation in a somewhat more interesting direction, I don’t think anti-democratic measures are per-se bad. The populous has it’s vices, as to the elites. We do a pretty good job of balancing governmental policymaking between the two. I’m agnostic about the electoral college as good or bad policy, but it’s nothing like it’s Constitutional intent.

                    2. But in a true marketplace of ideas, there would be no anti-democratic measures; the market wins by whatever the majority says. I agree with you that some anti-democratic measures are a good thing; the courts, for example.

                      The limited point I was making is that it’s the same mindset. Both the person who says I’ll shoot law enforcement if they try shutting down my church service, and the person who says I’ll use the electoral college to impose my candidate on the majority that voted for someone else, have decided that what they consider good policy should be put in place by force if necessary, who cares what the free market of ideas thinks.

                    3. Yeah, I won’t push back on that. Anyone who says violence is the key to getting their way doesn’t really believe in the republic.

                      But the republic can include an electoral college without becoming degenerate, and those who insist upon it as the best system are not the same as those who want their point of view applied at the point of a gun.

                      (Note: republic/democracy are basically interchangeable as used these days. I just like the latin word better than the greek)

                    4. But the republic can include an electoral college without becoming degenerate,

                      That strikes me as a conclusion in need of further evidence, for which the nation currently waits in some suspense.

                    5. Good policy != theoretical possibility.

                      I don’t think there’s anything fundamental about an electoral college that’s fatal to a republic. see: parliamentary republics, which have an extremely elitist basis for electing the head of state.

                      But one of the interesting things is that a republic relies on the consent of the governed, which means that practically there’s always some popular pressure. It’s certainly growing at the moment; and eventually something’s going to have to give. But that’s a practical consideration, not a foundational one.

  6. How about starting a religion based around hair cuts?? With these scissors I will cut your sins from your head and you will be born anew! Please put your donations into my offering plate for having cut and washed the sins from your evil earthly vessel! Can I get a hallelujah!

    1. Whoa! You may want to be careful with that. Before you know it they’re going to firebomb hairdressers just like they do abortion clinics…

      And when Delilah saw that he had told her all his heart, she sent and called for the lords of the Philistines, saying, Come up this once, for he hath shewed me all his heart. Then the lords of the Philistines came up unto her, and brought money in their hand. And she made him sleep upon her knees; and she called for a man, and she caused him to shave off the seven locks of his head; and she began to afflict him, and his strength went from him. And she said, The Philistines be upon thee, Samson. And he awoke out of his sleep, and said, I will go out as at other times before, and shake myself. And he wist not that the LORD was departed from him. But the Philistines took him, and put out his eyes, and brought him down to Gaza, and bound him with fetters of brass; and he did grind in the prison house. Howbeit the hair of his head began to grow again after he was shaven.

  7. The free exercise clause violates the establishment clause, because it specifically targets the exercise of religion and not similar secular behaviors.

    1. In effect what this clown just ruled.

      1. Except it really isn’t. It only would be if the free exercise clause were statutory rather than constitutional, which it isn’t.

    2. Which is why the Establishment Clause is a federalism provision and nothing more. At the founding churches were a preexisting power structure, much like states and state militias, that the Framers found useful as a Montesquieuian divider of power. In America today religion is fairly innocuous and if the Constitution were drafted today the framers would probably use football teams instead of religions as a way to divide power in order to prevent tyranny.

      1. How deluded do you have to be to say that in today’s America religion is “innocuous”?

  8. Excellent timing.

    Chicago politicians who weren’t “thinking about the Constitution”, just about “saving lives”.

    This today from the Second City Cop Blogspot.

    https://secondcitycop.blogspot.com/

    “City tow trucks arrived this morning and yanked the vehicles of every church goer and every single legally parked resident, including numerous elderly people and a more than a few nurses coming in from the night shifts and impounded them for violation of the signs that got posted late Saturday night with under twenty-four hours notice. The City also “closed” the private lot that the church used for parishioners in some half-assed attempt to force church-goers to park on the streets, streets listed as temporary tow zones to snatch their cars, too.

    We don’t know what the current parking situation is in Ravenswood, but last time we set foot in that area, Permit Parking was rampant along with a heavy concentration of three flats, meaning parking would be a problem, even if it wasn’t a Sunday. So all the residents WHO HAD NOTHING TO DO WITH THE CHURCH are on the hook for tickets starting at $300 plus over $100 day for “storage” and towing and damages to their cars – because we all know exactly how gently City tow drivers are with someone else’s property.

    This should be a wake-up call to all the residents who habitually vote for the Machine and “progressives.” It should also be a clarion call to the churches across the city as to how far the left will go to crush the faithful of all denominations. You are only useful to them as far as you obey orders and do what you’re told. If you don’t speak up now, expect the same to happen to you in short order.

    Gonna be interesting to see if the media, print or broadcast, will even cover this.

    1. If the media do cover it, I hope they explain it more clearly.

      1. Mayor cracking down on churches BAMN, including arbitrary street closures and planting cop cars in front of parking lots. Glad I could help.

        1. On the other hand, it applies equally to all cars that want to park near churches on Sunday morning, so it’s neutral wrt religion. /s

          1. Mulch, for at least 50 years that I know of, emergency no parking scams have been standard practice in big cities. They support needful public objectives, while delighting the towing industry. And, of course, the fines raise much-needed municipal revenue.

            Parking-permitted residents, who remain subject to the bans, learn to be on the lookout, so they don’t get caught. That gives them a side-benefit. The burden falls disproportionately on interlopers and newcomers, whom the residents want punished for inconveniencing them. Which is why the residents don’t demand repeal of the emergency parking ordinances. Residents take pride in their acumen.

            I lived in one such city, which had figured out how to dispense with the arbitrary-looking emergency feature, and make it work full time. They put up permanent signs, “No parking this side, 3rd Wednesday of each month.” It accommodated street cleaning.

            The formula was different from block to block, and never alike on both sides of the street: 1st, 2nd, 3rd, or 4th of some weekday—different weekdays on each block—each month, this side only. Everything different one block down. So throughout the streets of the city, there was mass towing available somewhere every morning.

            I worked 8 to 4, meaning 8 p.m. to 4 a.m. So I always got home on a different day of the week than the day I left for work—and too early in the morning to get any tip-off from an already-cleared street. In the pre-dawn stillness, the oncoming towing blitz was yet to be evident. I was new in the area, and not accustomed to it.

            After a tense shift under deadline pressure, quality controlling advertising typography, my early-morning faculties were too dim. I couldn’t do the calendar reckoning—let’s see, what day of the week did the first of the month fall on? Is this the second or the third Wednesday? Or is this a Tuesday block?

            In truth, I usually did not even remember I had to do that. I had a parking permit. And it wasn’t Wednesday when I went to work. And the space I found this morning is on a different block than the space I left last night.

            So during the first 3 months after I moved there, I got towed every time. In the fourth month, after I had been asleep in my basement apartment for maybe 45 minutes, I got big-time pounding on the metal door. It’s 6:30 a.m. I figured the building must be on fire. Bolted from bed, opened the door, and there is a cop, grinning at me. “I didn’t have the heart to tow you again. Get out and move your car.”

            Welcome to the neighborhood.

  9. Obama judge. Democratic Party “elites” are hostile to freedom of religion.

    1. No, hostile to the massive sense of entitlement some religion displays.

    2. Yes, clearly…

      The Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (November 16, 1993), codified at 42 U.S.C. § 2000bb through 42 U.S.C. § 2000bb-4 (also known as RFRA), is a 1993 United States federal law that “ensures that interests in religious freedom are protected.”[1] The bill was introduced by Congressman Chuck Schumer (D-NY) on March 11, 1993. A companion bill was introduced in the Senate by Ted Kennedy (D-MA) the same day. A unanimous U.S. House and a nearly unanimous U.S. Senate—three senators voted against passage[2]—passed the bill, and President Bill Clinton signed it into law.

      1. “Are” is present tense. Your point is what? That the Democrats didn’t used to be this way?

        1. You think judges on the bench now are of a different ideology than Ted Kennedy and Chuck Schumer?

  10. Until the promoters backed down, a concert was scheduled in Arkansas despite rules that prevented gatherings of a certain size. They planned to argue that they ought to be able to hold the concert because church services were exempt from the relevant public gathering law. What goes around comes around.

  11. Estate of Thornton affirmatively obligated private parties to do something for religious people and only religious people, employers had to give employees the sabbath of their choice off.

    An exception from a government imposed requirement would seem qualitatively different from an affirmative obligation to do something for others.

    Moreover, Estate of Thornton imposed a degree threshold. Only rules so generous that they effectively coerced people were relavant.

    It may not be a perfect analogy, but an analogy to coercing states under the Spending Clause might perhaps provide some analogy of the “two much” accommodation concept in Thornton. Taking away 5% of South Dakota’s highway funds if they didn’t enact a drinking age of 21 was insufficient to be coercive. But taking away all of medicaid (about 20% of state budgets) if they didn’t agree to medicaid expansion was coercive.

    Similarly, is this such a qualitatively huge benefit for churches that it would realistically coerce people to join a church so they could fo to a service with other people?

    I don’t think so.

  12. There’s a federal court case here in North Carolina, in which a TRO was issued against the Governor’s order banning/limiting church services. According to some press reports, some churches in NC are going back to unrestricted services. Mine hasn’t. It’s only a TRO, and the Gov. says he won’t appeal it.

    Here’s a recent report in the local press that includes the opinion: https://www.newsobserver.com/news/coronavirus/article242788161.html

  13. If you are a State which doesn’t like Churches, then you should enact a social distancing protocol that applies to everyone and everything, and then be prepared to duke it out in the courts over free exercise.

    If you are a State that does like Churches then you should enact a series of social distancing protocols that deal seperately with :

    (i) As, Bs and Cs,
    (ii) Ds,
    (iii) Es, Fs Gs and Hs

    and so on. Never getting round to Churches.

  14. The concern here seems to be that it’s unfair that religious people aren’t getTing something comparable to what religious people are getting.

    But that’s not what Thornton covers. Thornton covers a concern about nonreligious people becoming religious in order to get the exact thing that religious people are getting.

    So for Thornton to apply, the concern would have to be that atheists are attending religious services because it’s their only way to be with other people. The government would be compelling them to attend in order to get the exact valuable benefit that religious people are getting.

    So what if it did? Who would have standing to sue? In Thornton the employer loses business when a previously nonreligious employee finds religion and takes a sabbath off. But who has standing here?

    Perhaps we could find an atheist willing to say, “I hate religion. But I was just so lonely I was compelled to attend these services because there was no other way I could be with other people.” There might well be standing in such a case.

    But until then, people’s gripes have nothing to do with Thornton. It doesn’t matter that you get to perform circumcisions by someone who isn’t a doctor while I need a doctor, unless I actually want to be circumcised by a non-doctor. It doesn’t matter if I want (say) a massage by a non-doctor. Unfairness isn’t relevant. Claimed comparability isn’t relevant. You have to want the EXACT THING the other guy gets for Estate of Thornton to apply.

    1. ReaderY: That actually wasn’t the core rationale of Thornton; rather, it was that, “The employer and others must adjust their affairs to the command of the State whenever the statute is invoked by an employee…. This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses … [that] ‘The First Amendment … gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities.’ As such, the statute goes beyond having an incidental or remote effect of advancing religion. The statute has a primary effect that impermissibly advances a particular religious practice.”

      1. Yes, it did say that. But my interpretation is completely consistent with the text.

        My first point above (earlier comment), was that for Thornton to apply, other people have to give up something (“adjust their affairs”) in order to accommodate the religious people. Here nobody else has to adjust their affairs in any way. They may not like the exception. But they are not compelled to do anything in order for religious people to get it. The opinion previously referred to imposing “substantial economic burdens” on employers and “significant burdens” on other employees. Here exempting church services imposes no burdens whatsoever on anybody else. People may think ot’s unfair. But nobody is commanded to do anything or give up anything in order to help religious people.

        My second point, elaborated on the second point you replied to, was the effect must go well beyond an “incidental or remote” effect. It must place religious people at a substantially advantageous position vis a vis non-religious people. For that, I suggest that non-religious people must want the thjng religious people are getting.

        But I agree this case fails the first point, and rhere is no need to consider the second.

        1. But nobody is commanded to do anything or give up anything in order to help religious people.

          ReaderY, that is not the way it feels to me, living under a stay at home order. If religionists get to congregate, then I feel I am giving up considerable liberty to protect their health, without getting their cooperation on behalf of my health—and especially on behalf of my earliest ability to get out of the house safely. They will infect each other, and spread those infections generally.

          I wish restrictions on gatherings and social interactions were for the present more stringent, and more stringently enforced, so the entire nation, not just individual states, could crush the curve, and get sooner to a point where disease management could more sensibly depend on means other than lockdowns—including rigorous testing, contact tracing, and targeted quarantines.

          Those methods can’t work until the general level of infection has been reduced to a point notably less than it is now. I expect to be forced to give up many months of personal liberty on account of mismanagement of contagion all over the nation. Protestors, and religionists with lawsuits contribute political pressure on behalf of that mismanagement. Of course, I am out of patience with politicians who pander to those demands.

          Courts should not be making it harder for political leaders, or for people like me who have cranky immune systems. But they will make it harder, and force me to lose greatly, if they let religionists freely to become vectors.

        2. For that, I suggest that non-religious people must want the thing religious people are getting.

          That is mind boggling. Let them congregate, and religious people are going to be getting deadly disease. No thanks.

  15. RLIUPA imposed a legal obligation on the state of Ohio, and thus the requirement to “take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries” is consistent with Thornton.

    But, the Cutter Court also mentioned that RFRA applied for more than a decade to the federal prison system without compromising “the constitutional rights of other prisoners.” Unlike RLUIPA, RFRA imposed no legal obligation, only instead lifting a government burden on inmates.

    If the prohibition on burdening nonbeneficiaries categorically did not apply unless the exemption imposed a legal obligation, perhaps the Court would not have mentioned “the constitutional rights of others prisoners” because they would categorically not have any Establishment Clause rights.

    1. I strongly doubt that Thornton applies to obligations on states, as distinct from people.

      1. If “tak[ing into] adequate account […] the burdens a requested accommodation may impose on nonbeneficiaries” is not triggered by a legal obligation on a state, why did the Cutter court say

        Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, see Estate of Thornton v. Caldor, Inc.

  16. Instead of enumerated rights like the Free Exercise Clause being the canary in the coalmine indicating when government may be overstepping its authority, we get the judiciary inventing reasons why it is alright for government to make law restricting those rights.

  17. apropos of nothing, this seems like a Conspiracy topic with extensive comments that the good Rev. Arthur Kirkland would have weighed in on at some point. I’ve noticed his absence from comments for the past 2 weeks or so (expect many of you are not unhappy with that absence…). Still, I wonder – has Professor V banned him from the site or has the virus extracted a toll?

    1. I’d be sad to see the Rev. banned. In this world of Heraclitean flux, it was reassuring to see his posts and always be able to say, “Yep, Rev. is still as unhinged as ever.”

Please to post comments