Church Closures and Judicial Deference

Public health officials have squandered their credibility

|The Volokh Conspiracy |

Over at the First Things site today, I have an essay on the recent string of church closure cases, which David and Josh have written about here. To my mind, the most important factor in these cases is judges' belief that they should defer to the experts and local authorities in a public health crisis. That makes a lot of sense, but depends on the experts and authorities acting credibly and in a good faith way. Lately, the record doesn't look so good:

But deference depends on local authorities acting objectively and in good faith. Courts defer to public health experts because they see them as neutral and non-partisan. If the experts change their assessment of the risks associated with an activity depending on the ideological commitments of the participants, courts will and should have less faith in the experts' recommendations. Similarly, if local authorities justify restrictions on religion by saying that religion simply is not as important as other things, courts will and should be less likely to defer. As Smith itself recognizes, if religious freedom means anything, it means that state officials cannot treat religion less favorably than other commitments citizens may have.

In the last couple of weeks, local authorities have squandered much of their credibility. For months, public health authorities have told Americans that gatherings of more than a few people, even outdoors and with social distancing, should not take place because of the grave risk of contagion. Families could not even have funerals for loved ones. Now, however, many of those same public health authorities say (while others remain silent) that mass protests can and should go forward, given the issues involved. Combatting racism and police brutality is profoundly important. But that's a separate question from whether the gatherings pose a public health risk. As Ross Douthat wrote, the virus doesn't care why someone is protesting.

Moreover, in making these arguments, some local officials have expressly disparaged religion. Here in New York, Mayor de Blasio used dismissive terms to explain why the city has permitted protests but forbidden Hasidic funerals: Religion, the mayor said, was simply not as important. The mayor is entitled to his opinion; probably most New Yorkers agree with him. But his statements—and those of other elected officials—should make courts skeptical about deferring to the judgment of local authorities.

You can read the whole essay here.

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  1. Their credibility is entirely and totally shot. They cannot be believed anymore.

    It’s time to overturn the logic in Smith, and return to real protection of religion, not an system where local officials can “whoops, we banned all religious services, but it’s OK because we allowed mass protests instead.”

    1. Mass Governor Charlie Faker reports 2.5% of the protesters who sought testing were positive.

      1. And all of the police and national guard which were required to keep the protests civil(-ish)? When they came down with COVID? what about them?

      2. So? Unless they were tested both before and after the protests there’s no valid reason to conclude they caught it at the protests.

        1. True on an individual basis, but untrue on a statistical basis.

          Having said that there is little to no evidence of any spike following the protests, although in CA such a surge may be masked by the non-linear growth in new cases especially in the last 3 weeks.

          1. Do you have actual evidence showing that it is “untrue on a statistical basis”? I ask because the rate of COVID-19 deaths (which lag infections by about 2 weeks) continues roughly the same downward trend that started before the protests.

            Yes, the count of new cases is increasing but we’re also testing more. Since we’ve changed the rate of testing, we no longer have a valid baseline for the statistical trend in case counts. Deaths, however, are a fairly objective measure and unaffected by changes in testing rates.

  2. What state or locality has “rules” for protests different from rules for religious gatherings? None. Just general rules about large gatherings. So any claim on the part of religious institutions must be based on discriminatory enforcement. What’s the comparator? If 5,000 Orthodox Jews marched in Williamsburg protesting restrictions on religious gatherings, what do you think would happen? I can tell you what wouldn’t happen. Any serious attempt to break it up, rather than merely contain it. Just like with the cop killing protests.

    1. No, they do in fact have different rules for different types of gatherings.

      1. Citation please.

    2. What about the Jews marching to a funeral who did get stopped? Mayor specifically said he treats protests differently than funerals (which are a religious ceremony.)

      1. How many were there? Dozens, hundreds, thousands?

    3. I fail to see the difference between whether it is an issue of *rules* or *enforcement*.

      In Michigan the “rule” – and it has to be placed in quotation marks since the guidelines were contradictory and in many instances had little rational basis – is that no matter the size of congregants in a church there had to be social distancing and the wearing of face masks. Yet in demonstrations here many of the protesters failed to adhere to either; and our Governor still participated in one or more despite non-adherence by others to these “rules”. Selective enforcement trumps and defines the “rules”.

      {Fortunately my congregation gave me a dispensation on wearing a face mask after I refused to attend the first in-person service after their resumption when I refused to do so. Out of conscience I couldn’t appear to implicitly ratify illegitimate restrictions by compliance with them.]

      1. And in case CJColucci inquires, our church in a rural area (The Thumb) of Michigan now has a limited number of congregants. So, with a large sanctuary, the congregants were easily able to conform to social distancing. (I sat in a far corner of the pews which are unused and so was at least 25 feet from any other congregant.)

        Yet, under the “rules” for churches I still should have worn a face mask – though shoulder-to-shoulder protesters were, in practice, exempted. Not exactly neutral treatment …

        1. So your church didn’t present the practical enforcement issue of thousands of congregants doing something that it would take massive police resources to prevent?

  3. if religious freedom means anything, it means that state officials cannot treat religion less favorably than other commitments citizens may have.

    If the 14th has incorporated free exercise (which it has), the courts should not allow the state to use police powers to limit it. Considering that scripture holds that the word of God is more important than food or water, this seems like it should be easy to see where the line should be drawn.

    1. “Considering that scripture holds that the word of God is more important than food or water”

      So?

      Responsible people neither advance nor accept superstition-based arguments or positions in reasoned debate among adults.

      If we are to consider your point, though, where do Homer Simpson, Senator Blutarsky, Nick Fury, Carol Danvers, and Al Bundy come out on this question?

      1. Thank you for proving my point so eloquently.

  4. The OP’s posited equivalence of religion with other activities is a category error. Shopping is an activity. Dining is an activity. Worshiping is an activity. Religion is not an activity.

    On public health issues, valid comparisons must be on the basis of similarities or distinctions among activities. Religionists who are barred for public health reasons from gathering for lengthy intervals, in tightly-packed, large groups are not treated differently than grocery shoppers or would-be restaurant customers subject to identical restrictions on their activities.

    However important any of those activities may be, none of them ought to enjoy a categorical privilege to put public health at risk, with demonstrably deadly consequences. Religionists who argue otherwise must be challenged to do so on the basis of alleging intolerance for specific practices of worship which they can show are identical to practices otherwise tolerated in differing venues. Arguments thus made ought to be kept entirely secular.

    Religionists should not win cases by arguing that courts must decide cases according to religious principles. Secular nations with secular courts should take care not to let religious doctrines leverage the law.

    It may be that courts are also incorrect to permit massive public demonstrations, with inevitable spread of disease, during a pandemic. The right plaintiffs for such a case would be people arguing for restrictions on both demonstrations and dangerous worship practices. People arguing instead that spread of disease during demonstrations justifies further spread of disease during worship should not prevail, as they mostly have not.

    1. So, I take it you support criminal charges for the BLM protests and their organizers, for negligence in exposing and infecting people with COVID-19 from your post?

    2. Your are ignoring the question.

      Gathering in a large group for worship of a deity should not be treated any differently than gathering for protest of a political purpose. It IS being treated differently, clearly and explicitly. This is undermining legal authority in this matter, as it is very clear that privileges are being extended based on subject matter. That is very clearly unconstitutional.

      As several people have said, the governor of New Jersey will threaten to jail you for going to the gym, but will let you off without charges for burning the gym down.

      The double standard is what is most objectionable

      1. And in fact, a pastor of small church were summoned on charges for hold a mass for 16 people, in a church which held 300…

        Meanwhile, a mass protest of thousands in tight-packed streets meet with…no charges…for the organizers.

        1. One of these things is not like the other. What would the authorities do if 5,000 Orthodox Jews marched more or less peacefully in Williamsburg protesting restrictions on religious gatherings? Do you really think they would be stopped and arrested?

          1. Given DeBlasio’s shithead comments, they might well be.

          2. What’s the difference between 16 Orthodox Jews peacefully attending a service in a room with a capacity of 300, and 5,000 Orthodox Jews peacefully marching in Williamsburg?

            1. The same as the difference between a meeting of 16 BLM members meeting in a bar to discuss policing and 5,000 of them marching in the streets. One is a small violation that could be handled. The other isn’t. The meeting of 16 could easily be broken up and the violators could be arrested, ticketed, or sent home. The march of 5,000 presents different issues.

                1. Size matters. A few hundred aren’t thousands.

                  1. It would appear to me that you make the very point against which you purportedly contend.

                    Statistically would not *thousands* rather than *hundreds* – much less “16 Orthodox Jews peacefully attending a service in a room with a capacity of 300” – be more likely to cause infection? Only a clear subject matter differentiation can be the excuse.

                    1. Reading comprehension 101: I haven’t said a word about infection risk. What I have talked about is enforcement of policies against large groups versus small ones. Subject matter is irrelevant; size isn’t. If 5,000 churchgoers hit the streets to protest restrictions on their religious services, or 5,000 people hit the streets to salute Donald Trump, my claim is that, precisely because there are 5,000 of them rather than 16 or 35, or 300, you would not see the cops rounding everyone up, arresting them, or making them go home.

            2. What’s the difference? The smaller the group, the easier to oppress, to the cheers of the masses.

          3. So what you are saying is that BLM has “right of weight”. The stronger and bigger your group, the more the police will back off out of sheer practicality

          4. Potentially, yes.

            Mass arrests in response to riots or other illegal actions are actually quite well known.

    3. By dictating that “religion is not an activity” you’re dictated the contents of someone’s religion to them. That’s why you’re wrong about your category error. Religious doctrine often requires communal worship, which is an activity.

    4. “dangerous worship practices”

      Who are you to judge what is a “dangerous” practice? Its just anti-religion bigotry fancied up.

      In any event a free person can judge for themselves if they will take the risk.

      1. Stephen Lathrop ought to have a conversation with himself about Mohammedanism.

      2. You nailed it….it is religious bigotry, pure and simple. Utterly repellant.

    5. “with demonstrably deadly consequences.”

      Which has been demonstrated, thoroughly, by those Democrat governors forcing those nursing homes to take COVID patients.

    6. Religion itself may not be activity. But the exercise of religion is.

      My initial inclination was that authorities have leeway to respond to imminent riots with leniency, just as they have leeway to respond to them with force.

      However, subsequent statements by authorities and public health experts, and even explicit rules and policies, have tended to confirm that authorities are in many cases differentiating between protest assembly and relIgious assembly not because there is any evidence that one is objectively significantly safer than the other, but because they think one is more important than the other.

      I tend to agree that that’s a violation of the Free Exercise clause. But it’s also a violation of the Establishment clause. To say that prayer is less important than protest is necessarily to say that those who petition the state are petitioning a higher and more potent and more important authority than those who petition a religion’s Deity. That’s an establishment of religion right there if ever there was one.

    7. Also, the Police v. Newark remedy is that if various other exceptions are allowed, the rule is not of genuinely general applicability and exception must be allowed for religion. That’s the law. Courts have no authority to order loopholes shut. Their only authority is to check for loopholes and say if you have them, then religion has to have one too.

      If it’s not important enough to avoid lots of loopholes, courts have to conclude that the state doesn’t actually find it so important. Whether the state SHOULD find it important or not is not, under the Police v. Newark framework, a matter for the judiciary to decide,

      1. Also, the Police v. Newark remedy is that if various other exceptions are allowed, the rule is not of genuinely general applicability and exception must be allowed for religion. That’s the law

        That’s not the law throughout the USA, and Eugene argues it shouldn’t be the law.

        1. Even under Professor Volokh’s formulation, where religion is pretty much a mere expressive First Amendment activity just like any other amd the Free Exercise Clause is pretty much surplusage that doesn’t really add anything, the state still can’t make content-based distinctions between first different amendment activities because it thinks one type of content is more than an other.

          I’ve consistently argued that enforcing morality is permissable (absent an explicit constitutional prohibition) but is not a compelling state interest. Even if the religion clauses have all the force of a doormat and can be ignored, enforcing value judments (like A ought to be more important to people’s lives than B) is still a content-based implementation of morality, the state has no compelling interest in it, and it can’t stand up to an explicit constitutional prohibition like a First Amendment claim.

    8. Stephen, I am far from the type who carries water for the religious right, but there’s a constitutional provision here, and it’s relevant. The exercise of religion, like speech, should get a greater privilege (whatever that may be) with respect to stay at home orders.

      1. How is a greater privilege not inconsistent with Smith?

        1. At the very least, Smith is limited by Lukumi Babalu Aye

          1. Lukumi does not require that the exercise of religion gets a greater privilege.

      2. Dilan, I understand your point, but differ with you because I do not see where you address which kinds of principles should govern decision-making. Those decision-making principles can be either religious or secular, whether or not the object is protection of religious practice. I insist that courts cannot constitutionally choose to decide on the basis of religious principles, as many of the advocates for religious privilege in this context have been urging them to do.

        The long-accepted principle that courts have nothing to say about what constitutes religion strikes me as the right one. I suggest that should mean as well that courts cannot take notice of particular religious content as a basis for deciding cases. I recognize that is not what RFRA-inflected jurisprudence seems to say. But it is for that reason that I think RFRA jurisprudence has gone off the rails, and verged over into establishing religion.

        If a court takes notice of religious doctrine, and then decides the Bible requires religionists to gather in dangerous groups during a pandemic quarantine, and announces that Biblical principle as the basis for its decision, that strikes me as being a clear establishment of religion. How anyone can see it otherwise is beyond me.

  5. Deference to so-called public health “experts” is madness.

    True, judges are not epidemiologists and they are not experts on contagions. But, epidemiologists have consistently demonstrated that they are neither experts on contagions nor capable of making rational decisions.

    1. “neither experts on contagions nor capable of making rational decisions”

      Ain’t that the truth.

      Masks are useless in February but everyone must wear them in June.

      We need !!!ventilators!!! in March. Most people on ventilators die.

      Protests against closures in May so bad. Anti-police protests in June a necessity, won’t spread anything.

      Incompetent and politicized.

      1. The “most people on ventilators die” is a bit foolish. Anyone who is going to die will probably be put on a ventilator if they are available as they are having trouble breathing. Classic Simpson’s paradox. Minor cases don’t need ventilators. Major cases do.

  6. Collectively, the decisions made by governors, with the advice of public health “experts,” has caused the loss of 40 million jobs, the dissolution of thousands of businesses, and the cratering of the economy. Notably, almost all of the jobs and businesses lost have been in the private, non-crony sector while the gravy has continued to flow to public employees.

    Hundreds of thousands, if not millions, of people have not been able to access both routine and urgent health care services. Cancer diagnoses have been missed. Bone marrow transplants have been postponed. Hip replacement surgeries have
    been scuppered.

    How many thousands of people have turned to drugs in the wake of being of losing their job or business? How many people have since become addicted? How many people have killed themselves?

    How about the deprivation of human contact and touch? Does one doubt the serious toll that has on a human being?

    Thus, why would any rational, sane person accord any deference to a governor or a public health commissar given their collective whiff on being unable to anticipate and recognize the first, second, and third order effects of their shutdowns?

  7. I think there’s a difference between a singular event like mass protests and the idea that any and all religious gatherings should be as a blanket, permitted, especially as there are real alternatives to a lot of the religious gatherings which are Covid-safer.

    1. I agree that a state can respond to a singular event, especially one in which a riot is perceived as threaten, with leniency. But we are now well past singular events, and have entered not just the realm of regular, ongoing, pre-planned activities, but the realm of regular and official rules and policies. I agree this changes the calculus radically, and in this case the response-to-a-singular-event rationale no longer applies.

  8. Here in NJ, we Jews have been cruelly discriminated against by a governor who is hostile to our free exercise of religion. Weddings and funerals were forcibly disrupted by police, with congregants arrested. Jews were forbidden to meet and pray in minyans. Our free exercise rights were gleefully trampled upon.

    This was wrong. Completely wrong. And there is no redress. The problem is when this happens again, how much further will the state go the next time in trampling on our constitutionally guaranteed rights?

    1. More disturbing is the meta-observation about the self-righteous ease with which politicians slid right into these decisions and roles. Historically, it’s rapid grants of emergency powers that lead to a downfall of freedom, rather than some slow incrementalism.

      And those grants are cheered by the masses.

      At least keep an eye on it. History demands so.

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