5th Circuit Grants Emergency Injunctive Relief for Mississippi Church that Burned Down

Judge Willett concurred: "Singling out houses of worship—and only houses of worship, it seems—cannot possibly be squared with the First Amendment."

|The Volokh Conspiracy |

On Wednesday, the First Pentecostal Church in Mississippi burned down. The police suspect arson. Investigators found graffiti on the lot that read, ""Bet you stay home now you hypokrits." Before the fire, the church had challenged the City of Holly Springs's closure order.

The district court denied injunctive relief "in an expedited fashion," and the church appealed to the Fifth Circuit. The per curiam panel (Higginbotham, Southwick, and Willett) granted partial relief. Specifically, the court enjoined portions of the closure order, so long as the church complies with certain social-distancing guidelines:

Accordingly, we recognize that in this fast-shifting landscape of COVID-19 regulations, temporary deferral of a decision may effectively be a permanent denial. In the interim, pending the district court's decision, the City is enjoined from enforcing against the Church the Faith Based Organizations sections of Executive Order 6 and Executive Order 7.

Judge Willett wrote a one-page concurring opinion. He faulted the city for how it characterized the tragic burning of the church:

The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, "Bet you Stay home Now YOU HYPOKRITS."

The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime's depravity, the City seized advantage, insisting that the Church's First Amendment claim necessarily went up in smoke when the church did: "the Church was destroyed from an arson fire . . . making the permanent injunction claim moot."

This argument is shameful.

Willett explains that the church is not the building; the church is the parishioners.

When the parishioners of First Pentecostal Church leave their homes on Sundays, they are not going to church; they are the church. The church is not the building. When the New Testament speaks of the church, it never refers to brick-and-mortar places where people gather, but to flesh-and-blood people who gather together.1 Think people, not steeple.

He adds a fun tidbit that I did not know:

"Ekklesia," the Greek word for church, means the gathered ones, an assembly of the faithful. See Ekklesia, The Oxford Dictionary of Byzantium (Alexander P. Kashdan ed., 1991) ("personification of the church").

Willett echoes a position adopted by the Sixth Circuit, but rejected by other courts: houses of worship should not be treated worse than secular places of assembly:

I concur in the court's grant of injunctive relief. Singling out houses of worship—and only houses of worship, it seems—cannot possibly be squared with the First Amendment. Given the Church's pledge "to incorporate the public health guidelines applicable to other entities," why can its members be trusted to adhere to social-distancing in a secular setting (a gym) but not in a sacred one (a church)?

The closing is pitch-perfect:

Their sanctuary may be destroyed (for now), but when congregants congregate this Sunday, whether indoors in another facility (which has been offered) or outdoors in a parking lot, they will come together knowing that a church is not a building you go to but a family you belong to.

Kudos to Judge Willett, who wrote this opinion very quickly, but carefully.

NEXT: Right of Access to Court Hearings During Epidemics

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  1. “the City of Holy Springs[]”

    I think it’s Holly, not Holy.

    1. Googled it. Holly Molly, you’re right!

  2. I think the court got the law correct. But why is a court whining about the mean ole govt response? If I were trying a case in front of a jury; sure, I’d temper my remarks so as to not alienate jury members.

    But if I am arguing to judges, then why can’t I just stick to the law. Building has burned down. Defendant died in a car accident. Newspaper just published the confidential information we/other side was arguing should be sealed. And so on. Are judges really such delicate snowflakes that counsel must start each legal argument by reciting the judge’s shibboleth, “While I am saddened/heartbroken/devastated/troubled by [sad event X], this issue is now mooted by _______.”

    I get that most of us are human, and would indeed use this sort of language, and I’m certainly not bothered by a lawyer reciting it–although it does annoy me when the lawyer clearly doesn’t mean a word of his/her expression of sorrow. (Even if it ought not be necessary, why deliberately alienate a judge?) But this judge thought that leaving out a lamentation was SO AWFUL that mention of its awfulness needed to be included in a written opinion.

    That, to me, was–and is–overkill.

    1. Because not only are appellate justices human, so are the judges they slap down. Some decisions are so egregious that they need sterner slap downs than usual. These justices wanted to make sure the district court judge felt the sting and remembered it; and so would any colleagues thinking of similar stupidity.

      Pour encourager les autres.

      1. Judge Willett isn’t criticizing the district court. (Indeed, his concurrence doesn’t mention the district court). He’s criticizing the lawyers representing the city.

        1. If the district court was reversed, then it must have sided with the city. Criticizing the city lawyers must also be criticism of the district court for accepting their claims.

          IANAL and maybe there’s some subtler lawyering here that I don’t understand.

          1. Perhaps you should try reading the opinion? It’s only two pages long, so it shouldn’t take your more than a couple of hours.

            1. so it shouldn’t take your more

              Pro tip: when playing the elitist twat card, it’s particularly important to do a basic proofread before posting. It’s only two sentences long, so . . .

    2. “But why is a court whining about the mean ole govt response? If I were trying a case in front of a jury; sure, I’d temper my remarks so as to not alienate jury members.”

      Judges are human too. And can be alienated as well. Perhaps not as easily as jury members, but still…

    3. If the building was not the church, then why does there need to be outrage? It was just a building, no one died.

      1. Right, arson is just a misdemeanor, like 5 miles over the speed limit, as long as nobody dies.

        1. What I’m saying is, the crime is a separate case.

          1. And what I’m saying is that arson is normally cause for outrage, even if it’s not arson of a church. “The case is moot because somebody burned the plaintiff’s building down” would get outraged reactions from a judge if it were a bowling alley.

      2. And Robert E. Chambliss should never have been convicted of murder because those four girls weren’t supposed to be in the building at the time…

        (Bombing of 14th Street Church in Birmingham.)

        1. Should the decision to condemn the church building be seen as unsympathetic to the victims of the hate crime?

      3. City: The guy’s claim against us is moot because he has since been murdered, ha ha!

    4. Because it was obtuse.

      While buildings aren’t fungible, it’s entirely expectable that they might find another building to meet in. It was the congregation seeking relief and not the building.

      And this most likely was a hate crime, something which the city is supposed to try to prevent, and which I presume the FBI is investigating. Some conservative commentators are openly blaming the city for essentially licensing the vigilantism leading to things like this. And it’s not just here — reports of do-gooders physically assaulting those not wearing masks are increasing, and it’s only a matter of time until they do it to someone (a) who is able to defend himself (or herself) and (b) is having a bad day.

      Can you say a couple of dead do-gooders?

      And perhaps the judge has enough of a knowledge of history to be concerned about things like fascism and the fascist city attorney…

    5. Because the government position is that bad.

      We need more judges that excoriate the government. Even better if they hold the decision makers individually responsible. Because that’s how you stop these injustices from happening again.

      1. But Willet wasn’t talking about the closure itself, he was talking about the argument.

        He may not agree with the argument, but was it really that bad or out of bounds. I don’t think so. There are all sorts of situations where a venue’s destruction may moot a case, even if the party could reopen elsewhere.

        Imagine a bar challenging a closure order and, for whatever reason, it burned down. I could see a court saying the issue is moot even though the restaurant theoretically could open a day later at another location. It’s certainly not “shameful” to raise the argument; it’s advocacy.

  3. The Police suspect Arson. Yeah, I bet they do. Already certain internet narratives are seeking to blame the Pastor and the Church itself for the fire. As some sort of Fake Hate Crime. Sure. Because we all know that Mississippi has no history whatsoever of Local Law Enforcement going in the Middle of the Night and Burning down inconvenient churches that they feel are challenging them. Nope nothing to see there. (“Please pay no attention to the first 2/3rds of the 20th Century. We swear we got that all out of our system”.)

    1. So 20th century church burnings throughout the South were done on account of hatred for Christianity? I’ll be damned. And all this time I thought it was racial hatred.

      1. It was hatred for the congregation, and because said congregation had dared challenge the government. Both apply here — and who knows the racial makeup of this church, I don’t…

  4. Certainly, if gyms are allowed to re-open so long as they follow social distancing rules, then churches must likewise be so allowed.

    That said, a church is not essential in the same manner that a grocery store is. So, allowing a grocery store to operate does not imply that either a church or a gym must be allowed to re-open. That which is required for physical survival may be prioritized over that which is not.

    1. David…yes. There is a principle in Jewish law, Pikuach Nefesh, that commands us to violate almost any other law in order to preserve life. So yes, we can and must preserve physical life.

      The data and the science tell us how we can worship in relative safety in our synagogues. This simply cannot be in contention. The data and science are clear: physical distance + masks + enhanced hygiene = ability to worship in relative safety

      There really is not any excuse anymore to suppress our 1A free exercise rights.

      1. I do not agree.

        But regardless, such a decision is for the political process, not the courts.

        1. Tar & feathers? That happened to one Massachusetts Governor…

        2. I do not agree.

          With what? That safe practices in a church will cause the overwhelming of hospitals? Because that’s the only rationale for this. Protecting you in general is not, and we should not let government get away with this goalpost shifting.

          1. Again, please provide your source for the statement by the “government” that protecting the lives of “average” people was not a goal.

            This is in your head. It is true that some parts of the media (Vox comes to mind) and some commentators emphasized this goal. But the “government” never said that this (as opposed to saving lives in general) was the only goal.

    2. around the corner from where I’m staying in Berkeley, there’s a weed store and a nursery. Both have been allowed to stay open. I don’t see how either is essential.

      1. The weed store is easy to explain.* The nursery? Yeah, I probably would agree with you.

        *Easy in states that recognize medical marijuana.

        1. Because nurses, doctors, and other essential workers are supposed to take their kids to work with them instead?

          1. Martinned,
            I assumed he meant ‘nursery’ in regards to selling plants and trees. A nursery for taking care of children would, obviously, be deemed critical under almost any definition, I think.

            1. Heaven forbid mothers do it…

    3. Grocery stores aren’t required for physical survival either. The government could step in and distribute food door to door.

      1. Matthew:

        Now you are just living in a fantasy world.

  5. Nice to see that the judge doesn’t have undue sympathy for either side… [/sarc]

  6. When the parishioners of First Pentecostal Church leave their homes on Sundays, they are not going to church; they are the church. The church is not the building.

    A legal layman might be confused by that, two ways:

    1. If the church is not the building, at least a little bit, then it seems like the church (as the congregants), remains free as ever to gather on Sundays, or not, if pandemic emergency interferes, and has suffered no injury by the loss of a building. By his interesting theological assertion, the judge seems to have made the legal question one of property law, not one of religious liberty. I think if you want this to be about religious liberty, then the church must be at least in part the building.

    2. What gives the judge any legitimate power to define the church, whether as the congregation, the building, the legal corporation, or whatever? Isn’t the question of what constitutes the church for the believers to decide, and not the judge? Seems like the judge ought to reason around that little sticking point in the law, lest he be seen as establishing religion, and pandering for applause from Christians while doing it.

    1. lathrop, this one is pretty simple when you get right down to it. I don’t see any theological implications from what the judge wrote. Whether the Church is the people or the building they congregate in, you cannot treat them worse than secular activities. Our 1A right to freely exercise (i.e. worship) are not a matter for debate.

      The restrictions at the state level in a limited, temporary and time-bound manner made sense (mid-March thru April). Now they don’t.

      1. Commenter_XY — No restrictions make sense, “in a time-found manner.” Restrictions make sense only in a results-bound manner, with outcomes measured continuously, and compared to reasonable initial goals. Achieve the results, and the restrictions end. Much better than saying, “These restrictions will continue for 1 year,” and thus putting the entire question of policy before a befuddled and unaccountable judge to decide.

        1. Erk, “in a time-bound manner.” Apologies for the misquote.

          Also, “and thus put,” not, “and thus putting.”

      2. Commenter_XY — That sort of misses the point. The judge relied upon the New Testament.

        There is also this logical error from Blackman (which you are repeating, by the way):

        Willett echoes a position adopted by the Sixth Circuit, but rejected by other courts: houses of worship should not be treated worse than secular places of assembly

        That asserts paradoxically that to conclude churches put parishioners in greater danger than other venues, and to protect parishioners accordingly, is worse treatment, instead of better treatment. Blackman should not be turning reason on its head to assume his own conclusion. How many parishioners sit there in fear, praying for a state decree to get them out, without seeming to turn their backs on their fellowship?

        Can you even acknowledge that protecting people individually could at times be in tension with protecting them as religious congregants? Can you come to grips with the fact that to use law to protect institutional religious prerogatives requires the state to reason from a position of religious faith, instead of from a position of secular reason? A secular state protects individuals alike, and regardless of their associations. A religious state prioritizes religious institutions ahead of individual well-being. That is what Blackman advocates here.

        1. “How many parishioners sit there in fear, praying for a state decree to get them out, without seeming to turn their backs on their fellowship?”

          I’m guessing none, or at least so few as to be insignificant.

        2. “Can you come to grips with the fact that to use law to protect institutional religious prerogatives requires the state to reason from a position of religious faith, instead of from a position of secular reason?”

          No it doesn’t. The religious institution decides what it’s faith requires, then the State should then defer to the church’s views. In this case the State has put out regulations that cover how people assemble but restricted what businesses and organizations can implement them. If the church has decided that it can conform to the regulations, then the State has no right to discriminate between the church and the gym. Anything it allows the liquor store, or gym, or Home Depot to do, it must allow the church to do too. And that does not require any religious reasoning from the State.

  7. Turns out everyone reading this thread should have been watching Rachael Maddow last night. She detailed what seemed like (wasn’t counting) 7 or 8 instances of major church-related virus outbreaks, with resulting deaths from some of them, and emergency church-reclosings from others.

    I don’t think that justifies a policy difference in the treatment of gyms vs. churches, for instance. I think it shows both should be closed until the virus is better controlled. And a lot else should be closed, too. Everywhere.

    Do not flatten the curve. Crush the curve. Even if you do not fear the pandemic, do it to save the economy.

    it is profoundly disheartening to have to say this. Starting from today, the quickest way out of economic crisis will be to turn the clock back, and start over. To concede that will be painful for everyone, but it is reality. Except in the hard-hit Northeast, the lunge for re-opening has already all but thrown away any gains from initial stay-at-home efforts. Now, even policy in the Northeast is sliding in the wrong direction, including in New York, New Jersey, and Massachusetts, the nation’s hardest hit states.

    All over the nation, political leaders are frantically cooking the numbers, publishing ludicrously distorted graphics, and ordering pandemic casualty information kept secret. By doing that, they tell everyone that they know the virus situation is getting worse by the day, and feel helpless to react.

    Help them. Demand that they do now what should have been done at the outset. Lock down the entire nation to the maximum extent possible, to crush the curve to a point where testing, contact tracing, and isolation can keep the pandemic under control while the economy reopens.

    Experience in other nations seems to show that might take as little as 6 weeks, or maybe twice that, depending on how efficiently lockdowns can be managed. If it were to take even 18 weeks, it would still be the quickest-acting remedy for economic collapse.

    Given well-founded personal fears of dying, or inflicting death on vulnerable others, the current damn-the-torpedoes approach is doomed. Economic activity amidst a ravaging pandemic can never deliver enough stimulus to to sustain even Great Depression levels of non-prosperity. What do re-opening boosters hope for — 60% of pre-pandemic economic activity? They probably can’t get it, but even if they did, it would not be salvation, but instead economic catastrophe for the nation. It would be the worst economy of modern times, including the Great Depression.

    So do what the smartest nation’s abroad have done—the ones which actually value their economies, instead of treating economic risk with reckless abandon, as the Trump administration has been doing. Provide enough federal money to everyone, employers and employees alike, to pay the bills and freeze the economy in place, until it can thawed out and reactivated nearly intact after the virus is under control.

    The damage already done will be considerable, and some of it permanent. Today’s policy emergency is to stop the slide toward far greater wreckage in the near future.

    Republicans—and especially reluctant Trump supporters—ought to understand that their political downside now looms far greater than any face-saving which even an unprecedented early vaccine discovery could effect. Let proof of effectiveness come as early as 60 days hence, and the time to ramp up and take effect against the pandemic will push deliverance past election day—even in the unlikely case that no setbacks occur. Trump himself knows his political situation is desperate almost beyond saving.

    Without hesitation, Trump will gamble at the longest odds the interests of everyone else, including his supporters, to try to escape by a miracle the reputational doom his feckless management has earned. Any political leader who thinks continuing down that road with Trump is a wise personal choice is too blinkered to practice politics.

    Republicans alone can stop Trump before he does far more damage to the nation. Act now, do the right thing for the people of the nation, and save yourselves politically. It is past time for responsible Republican political leaders to intervene. Courage now is probably the only way out.

    1. Listen to science, not anecdotes. Listen to reason, not fear. Look to the examples seen in other countries, and how they have begun to open successfully.

      The curve has been flattened. The risk of cases overwhelming the ERs has been avoided. The time for reopening is now.

      1. AL, asking a ‘wokester’ to critically examine the data and the science and then act intelligently and rationally upon it is like asking a fish to ride a bicycle. Their progressive ideology blinds them.

        (with thanks to Ms. Steinem, the ‘wokiest woman’ I ever met)

        1. It’s basically a new version of Lysenkoism for many of these like-minded

        2. It’s not even that as much as they are just plain bigots — trying to reason with them reminds me of trying to reason with true homophobes.

          I’m socially conservative, but no, we don’t go murder the gay guy because he is gay — amongst other things, there is that part in the Bible that says “thou shalt not kill”….

          It’s been nearly 40 years but I’m seeing the same level of bigoted intolerance again — now from these folk.

            1. My reference was to homophobes cheering the murder of one Charlie Howard, who was tossed off the US Route 2 Bridge in Bangor, Maine, and drowned in the Kenduskeag Stream, a tributary to the Penobscot River, back in 1984.

              Now there is a LOT about the Howard murder that never came out, starting with how both the Penobscot and Kenduskeag are tidal* at this location (surprisingly because it is about 40 miles from the ocean) and that it was low tide during a dry summer — he drowned in about 3 feet of water….

              That’s actually not uncommon — people who can’t swim don’t realize that they can simply stand up and wade ashore. My issue is that his boyfriend didn’t wade in after him — I would have. I would have not even knowing who the victim was, but how many of us *wouldn’t* wade in after someone whom we loved?

              The youngest of the three teenagers had also been sexually assaulted earlier that night (I’m not sure by whom) and instead of going to the police, he did what all insecure young men do, he got two of his older/bigger friends and went back.

              We also won’t get into who the parents of these little darlings were, nor the influence they held in the Good-Old-Boy city that Bangor was at the time. Nor to the sobriety of the little darlings, although they hadn’t been admitted to the beer tent at an ongoing celebration downtown, which is the first thing a lot of us thought of.

              Anyway, this particular area was a notorious gay hangout, attracting men from at least five states (and two Canadian provinces) and there were people advocating throwing “the rest of them” into the river.

              My point was that the same mindless intolerance that I encountered then is what I am encountering now from the “woke” progressives. THAT was my point.

              Now as to Voodoo Scientists, I detest them all and don’t particularly see any reason to detest some more than others.

              And as to suicide, perhaps you might want to read this:
              https://thefederalist.com/2020/05/22/california-doctor-calls-for-end-to-lockdowns-over-rising-suicides/

              1. I should note that drowning is actually more likely in shallow water, when you’re thrown off a bridge. He probably hit the bottom.

    2. Rachel Maddow, lol.

      We can add religious people to Lathrop’s long list of disfavor.

      1. Kevin,
        Are you saying that the examples she gave are bogus? I mean, she did not do the Trump technique of, “Many people are saying…” or “I’ve heard that…”. She told her audience the names of the churches, where they are located, and the results. So, she either told the truth or she told lies. My quick-and-dirty Googling says that she relayed truthful information.
        Is your objection that, “Truth from Rachael Maddow is bullshit, because something something Maddow.”? Or is it some other objection? I’m confused by your LOL.

        1. They are anecdotal, have minimal effect in the entire scope of the outbreak, and designed to focus hatred and bias on a particular group of people (Those going to religious services).

          Imagine if Fox News went on the air every night with a different story about a different grocery store in a majority black area, highlighting all the areas where 6 feet separation wasn’t maintained, then observed increase corona virus transmission rates that could be traced to these individuals, with a heavy emphasis on the “black” nature.

          It’s designed to focus anger and hatred on a particular group, when the cases being cited are very minor in the scope of the entire epidemic. It results in people doing hate crimes like…burning down churches.

          1. Arm,
            I think that’s a fair point. (The fact that Fox News did this as often as it could during the Obama years, any time an illegal immigrant committed an act of violence does not excuse other media doing the same thing now.)

            But surely we agree that, At Some Point, the number of examples is so large that media should report on it, right? Maddow did not point out the first and only example, or point out when there were only two examples. She waited until there were several. Maybe should should have waited until there were a dozen examples. Or two dozen examples. But if we agree that it’s okay (and even important) to report on examples when it reaches some number, then we’re not talking about bad faith reporting . . . we’re talking about choosing to report on a story a week or a month earlier or later than some different news organization.

          2. Armchair, what your comment leaves out is the unique legal basis for the the religious claims. Unlike warehouses, or gyms, or liquor stores, religionists seem to be claiming an expansive 1A right to do as they please—regardless of the risk of contagion. That makes their claims notably more salient as threats to public health than most other kinds of claims, which at least in principle can be evaluated on the basis of policy and particulars, not on the basis of rights infractions.

            If state governments must yield to that reasoning, then all at once the public health threat ceases to be minimal. Every church in the state must thereafter be regarded as a potential vector to infect everyone. That is a big deal.

            1. Unlike warehouses, or gyms, or liquor stores, religionists have a right that the constitution explicitly explicitly protects, so why the heck SHOULDN’T they be claiming an expansive 1A right to do as they please? The text is on their side in claiming it.

              Constitutionally, if you’re going to treat gyms and churches differently, the churches have to be less restricted, not more.

        2. And if I were to rattle off a list of Lesbian murders?

    3. Wow. The knives are out.

      It seems to me that defiant churches are analogous to Sweden being a defiant country regarding COVID.

      Lucky for Sweden, that borders and the Baltic Sea separate them from continental Europe. Otherwise, ill-tempered Europeans might want to burn down Sweden.

      But I suspect a larger theme here. As the USA becomes more secular, we respect religious rights less. We passionately protect some minorities, while saying f* off to other minorities. Religion is a former (intolerant) majority on the road to becoming a (persecuted) minority.

      1. The greatest irony, anorlunda, is that mostly Christian men are the ones who drafted our Constitution to guarantee our rights and foster tolerance: religious and secular alike.

        1. Hypocrisy is of all ages, as we discovered on this blog wrt George Washington just the other day.

        2. Christian religious men? For sure not including Washington, Franklin, or Jefferson, helping from overseas. Less certain about Hamilton and Madison. There is a record to show that in his youth Madison considered himself a Christian. According to the Library of Congress, from law school onward until his death, there is not one mention in Madison’s voluminous record to suggest Christianity. You could conclude from that record he had never heard of Christ or Christianity. Of course, both secularists and religionists, keen to borrow Madison’s historical prestige, have tried to fill that void with their own imaginings.

          Here is a historical hint for you, Commenter_XY. Many folks today notice that as they look toward the past, people seem to be less secular than at present. Sometimes they conclude that the farther back you look, the more religious people were. That observation is pretty accurate as far back as the Civil War, but not accurate all the way back to the founding. The founding era was a notably secular one.

          1. Sigh…always with the woke, it is the same. Ignorance. Let me enlighten you, lathrop. You’re about to be educated. The following Christian men were a part of the drafting of the constitution.

            Baldwin, Abraham – Chaplain in the American Revolution
            Blair, John – Member of the Episcopal Church
            Blount, William – Member of the Presbyterian Church.
            Brearly, David – A warden of St. Michael’s Church
            Butler, Pierce – Member of the Episcopal Church
            Carroll, Daniel – Catholic
            Clymer, George – Was both a Quaker and an Episcopalian
            Dayton, Jonathan – Member of the Episcopal Church
            Few, William – Methodist
            Fitzsimons, Thomas – Member of the Roman Catholic Church
            Gilman, Nicholas – A Congregationalist
            Gorham, Nathaniel – A Congregationalist
            Hamilton, Alexander
            Ingersoll, Jared – Member of the Presbyterian Church
            Madison, James – Member of the Episcopal Church
            Mifflin, Thomas – Quaker and a Lutheran
            Morris, Robert – Member of the Episcopal Church
            Pinckney, Charles Cotesworth
            Read, George – Episcopalian
            Rutledge, John – Member of the Episcopal Church
            Sherman, Roger – Congregationalist
            Spaight, Richard Dobbs – Member of the Episcopal Church
            Washington, George – Member of the Episcopal Church
            Wilson, James – Episcopalian and later Presbyterian
            Witherspoon, John – Presbyterian

            Your ignorance of Madison is nothing short of astounding. Were you aware that he was Worshipful Master of his Lodge? Or Jefferson, who wrote the Virginia Sabbath laws?

            What the hell woke school did you go to?

            1. You forgot John Adams, who was not only a Congregationalist but whose father in law (William Smith) was a Minister. Who never thought that a lawyer was good enough for his daughter, he wanted Abigail to marry a minister.

              Yes, Adams was in Europe in 1787, but the US Constitution drew heavily from the 1780 Massachusetts Constitution, which Adams wrote.

              1. Yeah, I did forget Adams. My bad.

            2. Commenter_XY — Okay, to be sure memory was not playing tricks, I looked up a few of the big names on your list. And added others who were especially influential founders. In their maturity, when they led the founders, Washington, Franklin, Hamilton, Jefferson, James Madison, and James Wilson were all deists. I suspect you will not find an academic biographer of any of those who considers him to have been a Christian during the founding era.

              Turns out there was another James Madison, whom I never heard of before. So your charge of ignorance is correct, with regard to that guy. Also, isn’t “Worshipful Master” a Masonic title? And didn’t the famous James Madison leave a written record denying he was a Mason? Not sure what to make of your Madison charges.

              Of course I did not suppose, or say, that there were no noted public men during the founding era who were Christians. Most of the principal drafters of America’s founding documents were not. There seems to be a consensus among historians that even the founders who were practicing Christians did not, as a group, advocate the notion of a Christian nation. Any claim that America began as a Christian nation, or a religious nation of any sort, will not find support in the historical record. The contrary position, at least with regard to most of the leading founders, is well supported.

              1. lathrop….the only guy talking ‘Christian nation’ here is you. I am the guy who said that…mostly Christian men are the ones who drafted our Constitution to guarantee our rights and foster tolerance: religious and secular alike. which is literally true. My point was in response to your bigoted comments toward religion. Hell lathrop, enlightening you on the mostly Christian men who drafted the Constitution…well, you left yourself open for that.

                To complete your education lesson for today. Yes, Worshipful Master is a Masonic title. The Worshipful Master is the titular head of the Lodge. It is a title of high honor.

                1. Once again, Madison said, in writing—the document survives—that he was never a Mason, and knew nothing of Masonic ritual.

      2. “As the USA becomes more secular, we respect religious rights less.”

        If that continues.

        The first “Great Awakening” was initiated by a Diphtheria epidemic, and the Wuhan Flu may well initiate another one. Merely telling people that they *can’t* go to church is making people want to — I’ll go when mine reopens…

    4. lathrop, one wonders what you would have said to Galileo centuries ago. I have a pretty good idea, though. You and your progressively ‘woke’ pals have always been pernicious to our people.

      Your comments are completely divorced from reality. Clearly, you neither look at the data nor the science. For an intelligent man, you say some remarkably unintelligent things. The overall mortality rate from the Wuhan coronavirus is less than 2%. That is the data. That mortality rate does not justify the draconian measures in place now for much of the country. The data and the science indicate that deaths of despair and the societal cost from that will far outweigh deaths due to KungFlu.

      Had New Jersey, under Phailing Phil Murphy actually followed the data and the science, he would not have mandated that nursing homes accept covid-19 positive patients. The data were quite clear in early March: KungFlu was lethal to older people. We knew that. Yet, he and his little troll Health Commissar promulgated policies completely contrary to the data and the science that literally lead to thousands of deaths in our nursing homes. One can only hope that in a just world, he and the health troll will personally bear the consequences of their decisions.

      Newsflash: My worship of God in my synagogue with a minyan is essential. My free exercise rights are certainly more important than going to the beach (allowed), a liquor discount mart (allowed), an office environment (allowed), or non-essential retail stores (allowed), going to state parks (allowed).

      As for time-bound…The point is, these restrictions are not open-ended. They must have a definite end point where they can be re-evaluated.

      Look, we get it. Your comment history speaks for itself. You’re bigoted toward religion.

      1. “lathrop, one wonders what you would have said to Galileo centuries ago”

        I have to wonder how many of the “woke” progressives even know who Galileo *was*, let alone are able to comprehend your reference.

        It’s really scary how ignorant the “woke” progressives are — they are well indoctrinated, they know the approved answers to every question and what they are supposed to believe — but they have no idea *why* they believe it.

        I once had a student proudly proclaim that she was opposed to the private ownership of firearms. When I asked her ‘why?”, it was utter “deer in the headlights” — the best she could come up with, after a painfully long silence, was that “guns are yuccky.”

        It’s a textbook fascist mentality — they know what everyone is supposed to believe and that there can be no diversity of thought, that any questioning of the approved authorities is intolerable. A man named Hitler caused a lot of problems with people like that behind him, and it’s really quite scary.

      2. Is, “woke,” just a word you sling around to signify any opinion with which you disagree? I challenge you to come up with any definition of, “woke,” into which my comments would fit, if you take them as a whole. Whoever you think my, “progressively woke pals,” might be, I probably don’t like them.

        1. lathrop…there is an aphorism relevant here: If the shoe fits, wear it.

      3. As for time-bound…The point is, these restrictions are not open-ended. They must have a definite end point where they can be re-evaluated.

        Commenter_XY — Problem is, if a time-bound policy cannot be as efficacious as a conditions-bound policy, the right choice is the latter. Not sure what the status of the Necessary and Proper clause is legally in the states. Maybe it applies only to congress. But even if it does, it is the right guide.The Necessary and Proper clause weighs not for, but against, any means which cannot be gauged against outcomes. A time-bound means requires disregard of outcomes. That is not proper. The right approach to review is iterative. Review continuously, and adjust policy as long as opportunities for improved outcomes seem practicable. If outcomes show the policy is failing and cannot be fixed, get rid of it.

        As for your personal value system, and the comparative weight to you of various activities, that has nothing to do with comparative capabilities of available means to deliver a needed policy outcome—which in this case is suppression of contagion to benefit everyone. Promotion of religious liberty sufficient to satisfy you, would come even at the expense of co-religionists of yours, whenever they prefer to prioritize disease suppression. Policy is not about you.

        As for the charge that I am bigoted toward religion, phooey. I believe strictly secular government is the only haven religion has against oppression by government. Let establishment of religion creep in, and presently a preferred religion with an inside track will be wielding government power to suppress rivals.

        I admit that notion has little power to persuade religionists. Too many of those long for just a bit more scope to use government power to deliver increments of comfort to their own believers. Too bad. Religious liberty absolutely requires a dike in tip-top repair, with no little rivulets eating away at its foundation.

    5. “Turns out everyone reading this thread should have been watching Rachael Maddow last night. She detailed what seemed like (wasn’t counting) 7 or 8 instances of major church-related virus outbreaks…”

      Rachael MadCow is why we need to suspend the First Amendment so as to silence her for the common good. She started her career in Northampton. Massachusetts, need I really say more?

      If you want to shut things down, Big Pharma comes to mind because it was Biogen who brought this into the US & spread it — see the NYT (a bastion of right-wing zeal) on this:
      https://www.nytimes.com/2020/04/12/us/coronavirus-biogen-boston-superspreader.html

      While MadCow wouldn’t see a fact if one bit her, reality is that it was things like a choir practicing for two and a half HOURS in a room the size of a volleyball court that spread this — and that is not reflective of church services.

      And then other “Church” events involved specific practices such as a Priest physically touching the Host which has probably spread a lot of other things over the years — and churches are perfectly willing to modify this. (I hear that the Catholic Churches have emptied their Holy Water fonts.)

      This is a large country — “7 or 8” — heck, I probably can find 7 or 8 lesbians who killed someone, including one* in MadCows’ own Pioneer Valley. And how’s she with guilt-by-association and the rest of her logical fallacies when they’re turned against her?

      *In fairness, its under appeal or something…

    6. “Republicans alone can stop Trump before he does far more damage to the nation. Act now, do the right thing for the people of the nation, and save yourselves politically.”

      In 1978, in response to a snowstorm, then Massachusetts Governor Michael Stanley Dukakis shut down all Massachusetts highways for nearly a week. On TV* daily in his trademark sweater, Dukakis’ poll numbers showed overwhelming support for what he was doing.

      That fall, he was defeated in the primary…

      M. Stanley came back four years later and served another two terms as Governor — losing to Bush (41) in 1988 and then proceeding to spend the Commonwealth into near bankruptcy, but he was defeated in 1978 because people were still p*ssed about him shutting down the roads for a week.

      Unless they manage to rig the election, Trump is going to win (and a lot of Democrats *lose*) because people are p*ssed right now and will remember this crap in November.

      And as to polling — anyone remember how high GHW Bush’s poll numbers were after the 1991 Gulf War? The only reason why a then-unknown Bill Clinton got the Dem’s nomination was that none of the viable candidates wanted to run in 1992.

      And who won?

      ____________________
      *Television, locally-produced programming distributed via analog radio signal broadcast in the FM band, was the primary means of communication in the latter half of the 20th Century.

      1. In one of the most scurrilous political ads I’ve ever seen, the Democrats are following loud statements of X dead a moment later with “30 million unemployed!”

    7. ” Crush the curve. ”

      Nice slogan, no science. two months of house arrest in CA have not crushed the curve. Statistically it is flat if not rising.

      China may have crushed Wuhan but it used intense police state measures. And note that as soon as there were outbreaks in Wuhan, they prohited domestic flights, but send more than 4100 persons on international flights to infect the world.

      I swear people of your political persuasion want a depression in this country.

  8. This is not the first time Blackman has quoted approvingly over-the-top judicial rhetoric when it’s for something he likes.

    You’d think he’d expect better.

    1. Sarcastr0…The issues matter. There is a point where the suppression of our rights must come to an end. We are now past that point.

      The data and the science tell us what to do: socially distant seating, enhanced hygiene (no physical contact, masks) are enough to have safety for those of us who regard shul attendance as essential.

      The question to me is why some political leaders (Phailing Phil Murphy is my particular poster child) don’t follow the data and the science. We are treated as children who cannot be trusted to act in our own benefit, instead of the intelligent adults that we are.

      That is wrong. And not just a little wrong. It is very wrong. And must end.

      1. And there is the little matter of the hate crime.

        My guess is that the FBI is going to arrest someone for that in the next couple weeks, I just hope that it is the *right* someone.

        And a prudent police department would have had someone watching that church because something like this does not make them look good. Much like you put a bulletproof vest onto notorious defendants when you transport them so that you don’t have a repeat of what happened to Lee Harvey Oswald.

        A nonchalant attitude on top of that, yes, the judge does have an objective reason to be p*ssed. We tend to frown on damage to religious buildings in this country.

        1. Why is damage to a religious building worse than damage to any other building?

          Choose reason. Every time. Especially over sacred ignorance and dogmatic intolerance. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, bigotry, superstition, ignorance, and backwardness. By ostensible adulthood it is no excuse, not even in Mississsippi, at a Republican committee meeting, or at a white, male, right-wing blog.

          1. Are you defending hate crimes now Rev?

            1. Man is this virus bringing out the crazy! Church burning = “Meh, not so bad. ” That’s messed up.

              1. The point is that church burning is the same — no better, no worse — than fraternity house burning, or ice cream shop burning, or bar burning, or theater burning.

                In this case, the arsonist’s motivation may have been dislike for a particular religion, or dislike of all superstitious people, or it may have been dislike for reckless, belligerently ignorant people who flout a virus and expose others to avoidable risk. The dangerous conduct, rather than the supernatural claims, seems more likely to have been the acute precipitate.

                Other than that, great comment!

                1. Yep, you’re defending hate crimes now Rev. Amazing.

                  1. No, not really AL. That is how these Progressives truly think.

                2. Next time a white person shoots up a place full of minorities I wonder if AK will adopt the same “meh….there is no difference between that shooting and any other one…”

                  1. Yeah, I think the Rev’s dead-wrong on this one. If you don’t find burning a church qualitatively different than burning some random building, then presumably you don’t find it especially noteworthy if the building was, instead, a Planned Parenthood center, or a Gay Rights headquarters, or etc etc etc.. I think that 99% of liberals and conservatives would strongly object to that premise. (I’m heartened by the fact that–at least so far–people are not jumping on the bandwagon to say, “I agree with RAK on this issue.”)

                    1. The ostensible motivation for burning this building was the belligerent ignorance and dangerous recklessness associated with reportedly flouting a virus and the rules, not the religious preferences of those who sometimes visited the building.

                      Would it have been a hate crime had this building been a music venue — rock, rap, countrt, whatever — that flouted the virus and was burned?

                      This country is quickly becoming less religious. This national improvement can’t occur too quickly (much like the improvement associated with becoming more diverse, less rural, less bigoted, etc.), and the ‘limited special privilege for religion’ and ‘heads we win, tails you lose’ attitude prevalent among right-wingers is one of the reasons.

                    2. The ostensible motivation for burning this building was the belligerent ignorance and dangerous recklessness associated with reportedly flouting a virus and the rules, not the religious preferences of those who sometimes visited the building.

                      But increased because it’s a house of worship. All sorts of hate crimes are mixed motivations. There’s the standard mens era of the crime, then the added motivation of doing it because of who it is. Do you honestly think there would be the same action and graffiti if this were a gym challenging the order?

                    3. First, it is fascinating to watch right-wingers — who objected strenuously to the ‘hate crimes’ designation when black people were being shot for being black and doctors were being shot for performing abortions — switch to strident embrace of the ‘hate crimes’ designation.

                      Next, I see little evidence for the assertion that this building was burned for being a church rather than for being associated with dangerous recklessness and belligerent, anti-social stupidity. How many churches that have acted reasonably have been burned?

                      Is burning an abortion clinic (or church, or gay bar) to collect an insurance payment a hate crime? Is beating a pastor (or black person, or Jew) found molesting a child a hate crime?

                      I recognize that some people here are new to the position of objecting to hate crimes, but plenty of you seem to be doing this wrong.

            2. If it hurts Trump, sure. They praised that terrorist who got taken out, and ran sob stories of people with unofficial minders watching about what a great soul he was.

              Does anyone remember when Gotti was on trial and “100” men protested it? It’s as if Trump praised the trial, they would have trumpeted sob stories from the protesters like Jimmy “t
              The Knife” and Paulie “The Scar”.

              Again I have to run a disclaimer that I am not a Trump supporter, but nobody ever believes it because they are so buried in their worldviews.

  9. More low-grade partisanship from a white, male, right-wing blog.

    Had Judge Willett’s “opinion” involved a liberal rather than conservative cause, The Volokh Conspiracy would have excoriated its ‘intemperate dicta’, ‘unprofessional polemics’, and ‘hollow virtue-signaling.’

    Because Judge Willett is singing from the same movement conservative hymn book the Volokh Conspiracy embraces, however, Josh Blackman lauds Judge Willett.

    At the Volokh Conspiracy, the movement conservative platform (backwardness, superstition, old-timey intolerance) trumps all, especially this blog’s fading academic veneer.

    Tip for those who operate strong law schools: If you don’t want to spend your time and institutional credibility on apologies for faculty members whose devotion to movement conservatism leads to the occasional misstep such as casual repetition of racial slurs, don’t fall for Heterodox Academy’s whining on behalf of affirmative action for movement conservative law professors.

    1. Yeah because opposing church burning is so intemperate.

      1. I know….one shudders to think of what would happen if the Reverend ever got a hold of power.

        1. Get used to it, Commwenter_XY.

          My side has been winning the culture war throughout our lifetimes. This progress seems destined to continue. It is the reason guys like you are so cranky and desperate, and the reason the Conspirators are outliers in mainstream academia (but would be right at home at a few downscale, conservative-controlled campuses).

          A tip for January: Open wider.

    2. And AK is going to wonder why some Mormons are going to knock on his door….

      1. You have that one entirely wrong, Jimmy. Your, and the Conspirators, are whiny ankle-biters and outliers rather than mainstreamers? You are a (deservedly) dwindling minority in America.

  10. Religious congregants need an emergency judicial injunction just to hold a church service these days.

    I’m beginning to think that government at all levels in the USA doesn’t even pretend to pay attention the Constitution anymore.

    1. It’s as if the government thinks it owns the people, which it does not.

    2. “I’m beginning to think that government at all levels in the USA doesn’t even pretend to pay attention the Constitution anymore”

      Not all levels, at least not on this.

      ““The Department of Justice has made very clear to a number of states that people’s ability to access church and practice their faith is a constitutional question that they are pushing people at the state level pretty hard on” — MA Governor Charlie Baker.

      https://www.boston.com/news/coronavirus/2020/05/21/charlie-baker-church-reopening-trump-administration

    3. And “unlikely to succeed” in later appeals. I’d like to see statistical analysis of this, and when a court or judge makes this wrong analysis too much, they are stripped of participation in any such decisions in the future.

    4. Religious congregants need an emergency judicial injunction just to hold a church service in person these days.

      FIFY. They are free to host online services/meetings. In that sense, churches are no different than any other organization.

  11. Maybe it’s just my imagination, but it seems many of the same posters on the VC that are big on clipping the wings of the 2nd amendment as much as possible, aren’t big fans of religious practice either? Almost like they actively resent people of faith the way they resent gun ownership. I bet if ti comes up, they’re also supportive of quartering troops, as long as it’s not in their gated community or Coop.

    1. Not just imagination. They might favor banning encryption to make searches easier. Favor forcing disclosure of passwords despite the 5th. Blah blah.

      All of our rights have a common element, they restrict what government can do. Enemies of those rights are what the founding fathers would have called “tyrants of the majority”. They want absolutely no impediments on what the majority can do.

  12. Judge Willett wrote:

    When the parishioners of First Pentecostal Church leave their homes on Sundays, they are not going to church; they are the church. The church is not the building. When the New Testament speaks of the church, it never refers to brick-and-mortar places where people gather, but to flesh-and-blood people who gather together. Think people, not steeple.

    Is there any broader context or qualification to this, e.g., “The parishoners believe they themselves are the church?” Because otherwise, it seems like we’ve got a Court of Appeals opinion expressly adopting a religion’s beliefs (here, about what constitutes a church) as true in the course of reaching a conclusion. I thought passing judgment on religious beliefs themselves was what courts were supposed to avoid, and why we have things like RFRA in the first place.

    1. Sure. Wikipedia is a good start.

      “https://en.wikipedia.org/wiki/Church”

      But in short, “Church” typically has two meanings, the building AKA, “the church on the corner of Main street and first street” and the congregation, IE the “Catholic church” or ” Church of Jesus Christ of Latter-day Saints”

    2. When the parishioners of First Pentecostal Church leave their homes on Sundays, they are not going to church; they are the church. The church is not the building.

      Nice words, but has nothing to do with whether government can squat over religion, or gathering inside the church or elsewhere.

      Indeed I am reminded of a sub-SC decision that mentioned exempting religion from generally-applicable as entangling, but was less entangling than not exempting them. “Imagine a church that failed to pay property taxes, and had the building seized. Now that indeed directly impacts religious exercise.”

      So I wouldn’t be so fast to separate church from congregation, in a context of government punching on churches in violation of the First Amendment.

  13. “The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.””

    I suspect a Progressive atheist, misspelling hypocrites to throw off the police.

    1. I suspect a Progressive Millennial who didn’t realize that spray paint cans don’t come with spellcheck….

      1. Simplest explanation; common core.

          1. Why do the states lowest in educational attainment — college degrees, advanced degrees — lean strongly conservative, religious, and bigoted?

            Why are social conservatives so ignorant?

            We both know. You don’t want to talk about it.

  14. Still waiting.
    When will we get the explanation of why NO STATE in the country considered the lottery non-essential.
    An action that requires an in person, cash transaction, and passing a piece of paper, CANNOT be ‘contactless’.
    So WHY has EVERY state allowed this dangerous, possible deadly transaction to continue unimpeded?
    Those reckless gamblers walk around the community after fondling those virus ridden slips, and often even take them home where CHILDREN might come in contact!!!!
    WHY?? WHY?? The world wonders – – – – – – – – –

    1. At my local 7/11, the lotto tickets were spit out of a machine and handed to the customer by a clerk wearing fresh disposable gloves. So, I see essentially zero risk of transmission.

    2. Pretty much every law can be undermined by pointing out something equally or mare dangerous than what’s permitted. Is it really that dangerous for me to go from 55 mph to 56 mph in some rural road? Of course not. But you need to draw a line somewhere or we’re all living at the discretion of those in charge (even more than we already are).

  15. “Condemnable” indeed.

  16. This shutting down of churches is great for constitutional debate. The practical side is how does the govt enforce the rule? How does the govt impose a fine, when it can’t constitutionally collect taxes?
    The church refuses to pay the fine, then what? Jail the pastor?
    Enforcement falls apart, quite separate from whether the church is the building, or the congregation. Laws/mandates, are meaningless without enforcement.
    enforcement is the weak link in any govt action.
    Which is why our form of govt requires the consent of the governed.
    Consent for the lock down has evaporated. That means govt power has evaporated.

    1. Consent for the lock down has evaporated.

      Is it your opinion that even a bare majority of Americans do not support what you call, “lock down?” If so, where do you get your misinformation?

      1. All it takes is 10 to 15%. The government cannot enforce a small unwilling minority. What to you think ended prohibition? A small minority, refused compliance, local juries refused to enforce the laws. It wasnt a 50%+1.

      2. Income tax works because 99.9% comply. It all falls apart without the consent of the governed.

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