The Three Dissents in Calvary Chapel Dayton Valley v. Sisolak

Justice Kavanaugh's dissent cogently explains why the Chief Justice erred in South Bay. The Chief Justice has no response.

|The Volokh Conspiracy |

In Nevada, restaurants, bars, casinos, and gyms are allowed to operate at 50% of their capacity. However, houses of worship are capped at fifty people, regardless of their capacity. On May 22, 2020, the Calvary Chapel Church in Nevada challenged the Governor's emergency directives. The district court denied a TRO on June 11. The church appealed to the Ninth Circuit. That appeal was denied on July 2. On July 8, the church filed an application for injunctive relief with the Supreme Court. The briefing on that case concluded on July 16. Eight days later, the Supreme Court denied the application in Calvary Chapel Dayton Valley v. Sisolak, an unsigned per curiam opinion. Justices Thomas, Alito, Gorsuch and Kavanaugh dissented, and would have granted the injunction. By the process of elimination, we can conclude that Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the injunction.

Two months ago, the Supreme Court decided a similar case, South Bay United Pentecostal Church v. NewsomI blogged about South Bay here, here, here, and here. (Both cases were decided late on a Friday night; query if the Justices hold controversial per curiam orders till after the news cycle closes). In South Bay, Chief Justice Roberts wrote a opinion concurring in judgment that laid out some principles why Courts should defer to local governments during the pandemic. Justices Kavanaugh wrote a dissent in South Bay. In Calvary Chapel, however, Chief Justice Roberts did not write separately. He did not attempt to square his South Bay analysis with the facts in Nevada. And the Calvary Chapel dissenters highlight Roberts's inconsistency.

This post will walk through the dissents. I will start with Justice Kavanaugh's dissent, which I consider the strongest of the three.

Justice Kavanaugh's Dissent

In the two months since South Bay, Justice Kavanaugh has done his homework. His dissent carefully explains why Nevada's order is unconstitutional. And he builds upon his South Bay dissent in important ways. I think this opinion is his strongest effort since he joined the Court. He brings a clarity to this litigation that has been sorely lacking. Part I of his opinion is six pages. I encourage you to read the entire section. Here, I will briefly summarize it.

Kavanaugh identifies four categories of religion cases:

(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.

The first category include relatively straightforward Free Exercise Clause cases; for example, Espinoza and Trinity Lutheran. The second category includes more complex Establishment Clause cases. Think of Walz v. Tax Commissioner and Kiryas Joel. This second category also includes cases involving the ministerial exception (Our Lady of Guadalupe) and statutory exemptions (RFRA or RLUIPA). And, there may be some cases where a facially neutral law is motivated by animus (Lukumi).

The fourth category is the most significant, and relevant to the COVID litigation. Kavanaugh explains:

Fourth are laws—like Nevada's in this case—that supply no criteria for government benefits or action, but rather divvy up organizations into a favored or exempt category and a disfavored or non-exempt category. Those laws provide benefits only to organizations in the favored or exempt category and not to organizations in the disfavored or non-exempt category.

I have described the COVID orders in very similar terms. The decision to slot some secular activities into the favored category, and religious activities into the disfavored category, reflects an unstated value judgment.

Governors are making "value judgments" about the importance of religious worship. They have deemed it unimportant. They have decided that "Churches can feed the spirit" over Zoom. We need Amazon Prime, but receiving communion and reciting the mourner's Kadish aren't essential.

Those "value judgements" are far worse than any of the errant statements made in Masterpiece Cakeshop. The comparison of houses of worship to other facilities has always been a red herring. Chief Justice Roberts will be forced to confront these arguments soon enough.

Kavanaugh makes this point forcefully. He writes:

Nevada's rules reflect an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic.

I wholeheartedly agree. Kavanaugh explains that the starting point is that religious institutions should be given the same favorable status that other organizations are given. This principle should be the default rule. To depart from this default rule, the state needs to provide a sufficient justification. Here, Kavanaugh relies on Professor Laycock's important work:

Unless the State provides a sufficient justification otherwise, it must place religious organizations in the favored or exempt category. See Laycock, The Remnants of Free Exercise, 1990 S. Ct. Rev. 1, 49–50 (ex-plaining how this Court's precedents grant "something analogous to most-favored nation status" to religious organizations)…. Put simply, under the Court's religion precedents, when a law on its face favors or exempts some secular organizations as opposed to religious organizations, a court entertaining a constitutional challenge by the religious organizations must determine whether the State has sufficiently justified the basis for the distinction.

Kavanaugh provides a two-step framework. This approach crystallizes how I have long thought about the COVID cases:

First, does the law create a favored or exempt class of organizations and, if so, do religious organizations fall outside of that class? That threshold question does not require judges to decide whether a church is more akin to a factory or more like a museum, for example. Rather, the only question at the start is whether a given law on its face favors certain organizations and, if so, whether religious organizations are part of that favored group.

Here, Kavanaugh lays bare the weakness of Roberts's South Bay decision. There are always ways you can compare and contrast different establishments. Slice and dice! Churches are like nail salons! But the Free Exercise Clause does not resemble a routine employment discrimination case, where you seek to identify comparators. I observed last month:

It is a mistake to simply assess how "comparable" businesses are treated. This method reminds me of a routine feature of employment law. For example, a hispanic female alleges that she was denied a promotion because of her ethnicity. However, the employer responds that a similarly-situated hispanic female was given a promotion; therefore, the argument goes, the plaintiffs was denied the promotion for legitimate reasons. The parties will invariably dispute about whether the individuals are similarly situated: they have different roles, different levels of experience, etc. The Free Exercise Clause should not turn on this sort of ad hoc balancing test. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring.

Next, Kavanaugh moves to the second step of the inquiry.

If the religious organizations are not [favored], the second question is whether the government has provided a sufficient justification for the differential treatment and disfavoring of religion.

In other words, if the religious institution is denied the favored status, the state needs to justify that denial. Kavanaugh frames the burden in terms of a "sufficient justification." I think strict scrutiny is warranted. (And Kavanaugh joins Alito's dissent, which applies strict scrutiny; more on that later.) But I'll go along with his framework. He describes the burden this way:

To that end, the government must articulate a sufficient justification for treating some secular organizations or individuals more favorably than religious organizations or individuals. See Smith, 494 U. S., at 884. That point is subtle but absolutely critical. And if that point is not fully understood, then cases of this kind will be wrongly decided.

He's right. If you don't understand this dichotomy, then the COVID cases do not make sense. Judge Easterbrook, for example, bought into the Chief Justices's misguided approach. Kavanaugh nailed it.

Once you understand this framework, Nevada's order is plainly unconstitutional:

The State has not explained why a 50% occupancy cap is good enough for secular businesses where people congregate in large groups or remain in close proximity for ex-tended periods—such as at restaurants, bars, casinos, and gyms—but is not good enough for places of worship. Again, it does not suffice to point out that some secular businesses, such as movie theaters, are subject to the lesser of a 50-person or 50% occupancy cap. The legal question is not whether religious worship services are all alone in a disfavored category, but why they are in the disfavored category to begin with.

Kavanaugh concludes:

Nevada's 50-person attendance cap on religious worship services puts praying at churches, synagogues, temples, and mosques on worse footing than eating at res-taurants, drinking at bars, gambling at casinos, or biking at gyms. In other words, Nevada is discriminating against religion. And because the State has not offered a sufficient justification for doing so, that discrimination violates the First Amendment. I would grant the Church's application for a temporary injunction.

Alas, Chief Justice Roberts did not confront Kavanaugh's powerful dissent. He simply ignored it. Roberts, never one to mince words, was silent. Towards the end of his opinion, Kavanaugh twists the knife. He writes:

This Court's history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudential mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.

The reference to the "court of history" is obvious. Here, Kavanaugh is silently assailing the Chief Justice's majority opinion in Trump v. Hawaii. (That case was decided before Kavanaugh joined the Court.) In that case, Chief Justice Roberts purported to overrule Korematsu, a case in which the "government has invoked emergency powers and asserted crisis circumstances to override equal-treatment." Roberts quoted from Justice Jackson's Korematsu dissent.

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear— "has no place in law under the Constitution." 323 U.S., at 248, 65 S.Ct. 193 (Jackson, J., dissenting).

Kavanaugh didn't cite Roberts's opinion. But the reference to the "court of history" is obvious. He was calling the Chief out on his double-standard. What term should we use when a Justice references a case another Justice wrote, in a critical fashion, but does not cite it to be passive aggressive? Kind of like a subtweet. Maybe call it a subcite?

In any event, Chief Justice Roberts truly has no response to the junior justice. The limiting principle he identified in South Bay may have superficially worked in that case, but it doesn't work as the lockdowns continue, and more businesses are allowed to open.

Justice Gorsuch's Dissent

Justice Gorsuch did not join Justice Alito's dissent, or Justice Kavanuagh's dissent. Instead, he wrote a single paragraph without any case citations. It begins:

This is a simple case.

No, it's not simple. This case is hard. I think the church wins for the reasons Kavanaugh identifies, but there is a lot of analytical work to reach that conclusion. Justice Gorsuch can't start the case at First and Goal and waltz into the endzone for a touchdown. He must start in his own endzone and run the length of the field.

Far too often, Justice Gorsuch insists difficult cases are really easy. He used similar language in Bostock:

The [Civil Rights Act of 1967's] message for our cases is equally simple and momentous: An individual's homosexuality or transgenderstatus is not relevant to employment decisions.

(I wrote about Bostock, as well as McGirt, in the Atlantic).

When Justice Gorsuch says a case is "simple," that is a tell that the case is tough. Rhetoric cannot replace rigor. Justice Gorsuch would be well-served to check his over-confidence. He should start by removing the word "simple" from his vocabulary. Issues that percolate to the Supreme Court are there precisely because they are not "simple." This case warranted more attention than a single, citationless paragraph–even one I ultimately agree with.

Justice Alito's dissent

Justice Alito's dissent was joined by Justices Thomas and Kavanaugh but not Justice Gorsuch. It's not clear that Justice Gorsuch would have disagreed with anything Alito said. Rather, Gorsuch thought the case was "simple," and could be resolved without discussing any cases.

Justice Alito did not join Justice Kavanaugh's dissent in South Bay. At the time I speculated why. After reading this decision, I think he needed more time to put together his own approach to these cases. And the delay was worth the wait.

First, Alito echoes a point I have made in several presentations. As time elapses, emergency measures must become more narrowly tailored. What sufficed in March and April becomes unjustified in May and June.

As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully ac-count for constitutional rights. Governor Sisolak issued the directive in question on May 28, more than two months after declaring a state of emergency on March 12. Now four months have passed since the original declaration. The problem is no longer one of exigency, but one of considered yet discriminatory treatment of places of worship.

Justice Alito next considers the Free Exercise Clause. He contends that the Governor's directive is not "neutral" under Lukumi.

Here, the departure is hardly subtle. The Governor's directive specifically treats worship services differently from other activities that involve extended, indoor gatherings of large groups of people.

The neutrality determination is somewhat circular. "Neutral" with respect to what? Are churches and casinos analogous? The state argues that casinos are heavily regulated in ways that churches are not. Perhaps, then churches, should be compared more closely to movie theaters? I do not find this counterargument persuasive, but it highlights weaknesses in Alito's position. Indeed Alito's position buys into Roberts's dichotomy. I much prefer Justice Kavanaugh's fourth category. Indeed, I'm not sure how Kavanaugh joined this portion of Alito's dissent.

Once Justice Alito finds the law is not neutral, he reviews the directive with strict scrutiny. And he explains, with clarity, why the directive is not narrowly tailored.

Thus, while Calvary Chapel cannot admit more than 50 congregants even if families sit six feet apart, spectators at a bowling tournament can sit together in groups of 50 pro-vided that each group maintains social distancing from other groups.

In sum, the directive blatantly discriminates against houses of worship and thus warrants strict scrutiny under the Free Exercise Clause.

Justice Alito also addresses the Free Speech Clause. Justice Alito writes that discrimination against religion is a form of viewpoint discrimination.

Laws that restrict speech based on the viewpoint it expresses are presumptively unconstitutional, and under our cases religion counts as a viewpoint, Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995). Here, the Directive plainly discriminates on the basis of viewpoint. Compare the directive's treatment of casino entertainment and church services. Both involve expression, but the directive favors the secular expression in casino shows over the religious expression in houses of worship.

Alito directly references the recent protests, which were permitted:

Calvary Chapel has also brought to our attention evidence that the Governor has favored certain speakers over others. When large numbers of protesters openly violated provisions of the Directive, such as the rule against groups of more than 50 people, the Governor not only declined to enforce the directive but publicly supported and participated in a protest. Cf. Masterpiece Cakeshop, 584 U. S., at ___–___ (slip op., at 14–16).

Here, the Governor simply find protest more important:

Public protests, of course, are themselves protected by the First Amendment, and any efforts to restrict them would be subject to judicial review. But respecting some First Amendment rights is not a shield for violating others. The State defends the Governor on the ground that the protests expressed a viewpoint on important issues, and that is undoubtedly true, but favoring one viewpoint over others is anathema to the First Amendment.

I made a similar point last month:

This double-standard became patently obvious in the wake of recent protests. Officials like NYC Mayor DeBlasio expressly stated that the protests were far more important than prayer.

This argument will have extra relevance in the future free speech challenges. For example, Mayor DeBlasio's preference for certain types of public gatherings (protests) over other types of gatherings (prayer). Justice Kavanaugh's dissent also referenced speech, briefly.

There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech.

But here he described "content-based" discrimination rather than viewpoint-discrimination.

Finally, Justice Alito explains why Jacobson v. Massachusetts is not relevant to a First Amendment case.

And in any event, it is a mistake to take language in Jacob-son as the last word on what the Constitution allows public officials to do during the COVID–19 pandemic. Language in Jacobson must be read in context, and it is important to keep in mind that Jacobson primarily involved a substantive due process challenge to a local ordinance requiring residents to be vaccinated for small pox. It is a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.

Judge Collins (CA9) expanded upon this point:

As the Second Circuit has recognized, Jacobson merely rejected what we would now call a "substantive due process" challenge to a compulsory vaccination requirement, holding that such a mandate "was within the State's police power." …

Jacobson had no occasion to address a Free Exercise claim, because none was presented there. (That is unsurprising, because the Free Exercise Clause had not yet been held to apply to the States when Jacobson was decided in 1905. See Phillips, 775 F.3d at 543.) Consequently, Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional right; on the contrary, Jacobson explicitly states that other constitutional limitations may continue to constrain government conduct….

I made this point early on in the COVID litigation.

Courts should not look to cases from the Progressive Era to bolster contemporary notions of substantive due process. It is a mistake to cherry pick words from a century old opinion, and graft those words onto modern rights jurisprudence. Jacobson can be read to limit cases like Roe.

But it cannot be used to limit the First Amendment.

Justice Kavanaugh also addressed this point:

For example, courts should be extremely deferential to the States when considering a substantive due process claim by a secular business that it is being treated worse than another business. Cf. Jacobson v. Massachusetts, 197 U. S. 11, 25–28 (1905).

But Justice Kavanaugh does list several specific areas where deference is warranted.

Under the Constitution, state and local governments, not the federal courts, have the primary responsibility for addressing COVID–19 matters such as quarantine requirements, test-ing plans, mask mandates, phased reopenings, school closures, sports rules, adjustment of voting and election procedures, state court and correctional institution practices, and the like.

Yes, he mentioned "adjustment of voting and election procedures." That inclusion was not inadvertent. I think he is saying that federal courts should not be intervene to modify election laws in light of COVID. That statement is largely consistent with how the Court's conservatives have stayed every single COVID-related order.

***

This case is quite significant. It is regrettable that Chief Justice Roberts did not write separately. We only have a one-sided account in the end. I suspect all future COVID cases will split along the same 5-4 lines.

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  1. Two words: Impeach Roberts.

    1. Four Words: Not going to happen.

      1. I quit working at shoprite and now I make $65-85 per/h. How? I’m working online! My work didn’t exactly make me happy so I decided to take a chance on something new… FDe after 4 years it was so hard to quit my day job but now I couldn’t be happier.

        Here’s what I do………..► Home Profit System

    2. I disagree. I expect Justice Roberts to excel in an important role — presenting sensible conservative positions — on the Obama Court.

      1. Why do you think that Obama is stupid enough to take a position on the SC?

        Here is a guy who assiduously avoided publishing when he was a lecturer at U Chicago Law. Yet he is dumb enough to accept an SC appointment.

        1. Assuming Obama is actually offered a seat on the Supreme Court, it would be his last ever job, so he could say and write whatever he pleases without it coming back to haunt him in the future.

        2. Why would one expect a lecturer — especially a lecturer with substantial other employment — to publish?

          Other than lack of familiarity with law school operations, I mean.

      2. An Obama appointment would be a confirmation hearing for the ages. If Trump isn’t re-elected, you know he’s going to be in the media, and the GOP has a *lot* of dirt on Obama.
        A lot of dirt that involves Biden as VeeP, and I don’t think Biden’s puppetmasters would chance that.

        Taft was the last — actually *only* POTUS to be appointed to SCOTUS, and had been a circuit court judge.

        1. Where “dirt” = racism, right-wing fever dreams, InfoWars transcripts, and birtherism.

          I would expect a remarkably smooth confirmation with respect to Barack Obama. Even the most enthusiastic bigots among the Republicans would likely hold their tongues.

      3. I really doubt that Trump will appoint Obama in his 2020 – 2024 term, or that Ivanka will when she becomes the first female, Jewish president from 2024 – 2032, but I suppose one of them might offer him a position there as a gesture after your marvelous advice to expand the court to 15 seats is taken.

  2. The right question is whether so-called, “disfavored,” classes are defined by processes or judgments based on constitutionally legitimate criteria. A policy intended to disfavor gatherings of people practicing a particular religion, for no reason other than a preference for another religion, or a preference for no religion, is plainly illegitimate constitutionally. But that is not at all alike with a policy to disfavor religious gatherings as a class during a public health emergency. Those cases—along with other cases of existential import to the nation, such as cases of foreign invasion— ought to be treated as a legally different class.

    Such instances can be recognized and defined by the question whether the nature of the gatherings—defined by common non-religious characteristics shared among them—creates avoidable, deadly risk to public health—or involves some other politically existential question, as a foreign invasion would do.

    All such cases are inherently political, with a political valence so high that there is simply no place for the courts to assert jurisdiction. Political leaders must make those decisions—and be disciplined by the political process, not the courts, if they make wrong decisions. The courts are right to define such cases as political questions, to be decided by the political branches.

    The courts are also right to limit criteria for so-defining any particular case entirely to secular questions. To do otherwise invites establishment of religion.

    1. So you would subject religion to the tyranny of the masses?!?

      1. Why is it that whenever you disagree with the majority, they’re being tyrants?

        1. That’s what you and your ilk said when people voted to ban gay “marriage.”

          1. I didn’t say they were tyrants; I said that the Constitution didn’t permit that result. And that pretty much sums up the difference in our approaches.

            Under the Constitution, some results are not permitted no matter how popular, but that doesn’t mean people advocating for unconstitutional laws are tyrants. It means they don’t get their way on that issue. There’s no need to engage in overblown, emotional rhetoric about the tyranny of the majority, or to disparage the majority’s ethics or common sense, or to insult them by comparing them to mobs. In other words, it’s the rhetoric from your side that I’m objecting to, and not the principle that the majority doesn’t always get its way.

            1. Very convenient that “what the Constitution permits” seems to perfectly line up with your policy choices.

              1. Oh, that’s not true at all. I favor getting rid of the electoral college, and I favor senators being chosen proportionately by population rather than two per state, neither of which is permitted by the Constitution.

                1. What’s the point of even bothering with a Senate if they’re just going to be another House?

                  Like, not actually being snarky here.

                  1. The Senate does things that the House doesn’t, like confirm ambassadors, judges, and cabinet offices. And try impeachments. So it wouldn’t be just another House.

                    But on your broader point, the rationale under which Congress was set up the way it was hasn’t existed for a very long time. Two senators per state made sense when senators were elected by state legislatures and did as they were told by state legislatures because they represented state legislatures rather than the voters. But if they’re going to be popularly elected, then they should be popularly apportioned. It makes no sense for 400,000 voters in Wyoming to be able to cancel out 39 million Californians (or whatever the exact numbers are). All that does is guarantee that the Senate will be about as out of touch with popular opinion as it’s possible for them to be.

                    Now, if we were actually going to revamp how Congress is organized, given that our circumstances are completely different than they were in 1789 it might make sense to start completely from scratch. Maybe we really don’t need a two chamber legislature if the same voters are electing both of them. Maybe we could have a one-house legislature and then a separate body altogether for confirmations, treaties and impeachment trials. Of course this is all theoretical since doing any of that would require the small states to give up their disproportionate political influence, which they’re not going to do, at least not willingly. If you’re Wyoming, why wouldn’t you want your voters to have more say than California?

                    1. Fair enough, though I’d say that’s a better argument for repealing the 17th Amendment.

                    2. If you restrict California’s voting to people whose ancestors were in America in 1900, I’d support your system.

                    3. My mothers ancestors were here in 1900 but my fathers ancestors were not so do I get half a vote? I’m white if that makes a difference to your answer.

                    4. Yes.

                      But it’s absolutely obscene that someone like Bill Gates, a WASP whose family helped build America and who single handedly made the world a better place with his innovation, gets the exact same vote as an 80 IQ anchor baby dropped out of an illegal Mexican mestizo.

                    5. Not worth engaging that guy Krychek_2. Whatever reducto you present, he’s fine with because he’s not a serious person.

    2. lathrop, when I saw the title of this blog post, I knew for certain you’d be all over it. You just cannot help yourself. How revealing…and utterly predictable.

      Moths to flames are like religious bigots commenting on religion cases.

    3. Lathrop,

      So far there is no Constitutionally legitimate criteria for treating a church any different than a gym in the framework we have. You have again conflated this with the same red herring argument as the judges seem to have done.

      Your assertion that ‘some’ instances are inherently political and that the ‘valence’ is so high than no judge should ever assert jurisdiction rides the edge of ‘ends justify the means’. There is nothing I deem so politically important that a judge shouldn’t have the ability to assert jurisdiction. In fact, the Constitution specifically provides that very caveat in it’s framework. Specifically that each of the 3 factions of government serve to balance the others. It is up to a judge as to whether or not they should or can assert jurisdiction.

      Even given that, this is absolutely one where judges should and can assert jurisdiction.

      You’re sugar coating what amounts to an argument for authoritarianism or totalitarianism, even if only during a time of national crisis. But then, who’s to say we don’t just have the elected declare a crisis at every whim to keep that power? Then there would be no ‘political process’ with which to remove other than rebellion. And while some may be eager to see that, I would rather not have another civil war on our hands.

    4. Seems to me that there is an implicit assumption in his dissent that if you are treating religious organizations badly you are probably discriminating based on religion, which in this case seems fairly true.

  3. I think you’ve glossed over the landmine in Kavanaugh’s dissent. When he says “the government must articulate a sufficient justification for treating some secular … individuals more favorably than religious … individuals” he is saying, a fortiori, the government may treat secular and religious individuals differently only if in doing so it treats the secular individuals worse.

    Since Kavanaugh isn’t proposing the government treat all individuals identically regardless of situation or station, he is simply proposing dividing invidividuals into the religious ones and the secular ones and then favoring the former over the latter; this, apparently, is what freedom of religion is to him.

    1. That deeply pesky First Amendment to the Constitution, again. Darn it!

      1. You think the First Amendment requires favoritism towards religious people versus secular people?

        1. Absolutely. That is exactly what the First Amendment says.

          1. You’re reading a lot into free exercise. And also ignoring establishment.

            1. What we’re reading into free exercise is that it actually protects a substantive right.

              And we’re not ignoring establishment, it’s simply that nobody is trying to establish a state church these days. The establishment clause is like the 3rd amendment: A perfectly good clause with very little occasion for application.

              1. The number of logical jumps you need to go through means pretty clearly that it’s not ‘exactly what the First Amendment says.’

                As usual, you go well beyond ‘I’m right’ to ‘it’s so obvious you must be lying of you see it any other way.’

                Looking at the calls for a great awakening and those saying Trump is sent from God…yeah, lets stick with a muscular EC.

    2. Actually what he says is that the government must articulate a sufficient justification if they’re going to treat people differently if the basis for that treatment is religion. Not as you claim “…the government may treat secular and religious individuals differently only if in doing so it treats the secular individuals worse.”

      You have put too much emphasis on his phrasing, and missed his meaning entirely.

    3. Justice Kavanaugh is an ardent advocate for the ‘heads we win, tails you lose’ approach to religious claims recently favored by conservatives — religious claimants can discriminate against everyone else but no one can discriminate against religious claimants; religious claimants can exclude themselves from laws they do not like (on whim) but can never be excluded from the benefits of laws they like.

      That approach was always unlikely to be accepted by the modern mainstream.

      1. Of course, because that is what the First Amendment says, religion must always be given favored status and treatment. To say or to do anything else is to prohibit the free exercise of religion which is prohibited.

        A religion has ANY immunity or privilege given to any individual or group of individuals in the country, and at the same time, must not be treated worse than any other group. So if a benefit is available to any group or person, then a religious organization must also be able to receive that benefit; at the same time, the fact that it is a religion means that it is exempt from any requirement that has any tendency to restrain the exercise of that religion.

        Free Exercise.

        And unless a government entity ESTABLISHES a religion, that means creates a church building, hires specific ministers, creates specific religious dogma, then the “establishment” clause never comes into play, because it is not the ESTABLISHMENT of a religion.

        So yes, religion always wins, because that is what the Constitution says.

        1. That’s a theocracy with a fig leaf.

          That’s not the law, and it’s certainly not the Founders’ intent. (‘cept maybe Adams).

          1. It’s actually the opposite of theocracy. Freedom of Religion. All Religions.

        2. What if my religion requires me to have sex with 12 year olds? And don’t think such religious belief doesn’t exist.

          1. Freedom of religion, like all the other rights in the Constitution, is not unlimited. This is well understood.

            You can’t go lying on the stand and claim “freedom of speech”. You can’t go publishing the nuclear weapons codes, and claim “Freedom of the Press”. You can’t go around with your own nuclear weapon, despite the right to bear arms. Ect. Ect.

            1. I agree with you but I was responding to Vandalia’s claim that religion should always win.

        3. “So yes, religion always wins, because that is what the Constitution says.”

          That assertion has been steeped in right-wing fever dreams for far too long, even by standards at a clinger blog.

    4. he is simply proposing dividing invidividuals into the religious ones and the secular ones and then favoring the former over the latter; this, apparently, is what freedom of religion is to him.

      I’d say the value judgement was made, by The People, when they created the Constitution, and government may not question it. It may not lower religious gatherings below other ones, officials issuing their own judgements that it is of lesser importantance.

      I don’t know where your idea it is more important necessarily, is coming from. But it cannot be made less important.

  4. My gut reaction was that the State needed to articulate why churches are not similarly situated to movie theaters and concert venues for the differential treatment to pass scrutiny. Churches are different, and the risk is greater than the theater. As a Church organist and music director with 40 years’ experience in congregations of varying denominational and socio-cultural backgrounds, I’m in the right position to identify the difference.

    Christian worship is not a spectator event – congregants are expected to sing wholeheartedly, often for as much as thirty minutes ever the course of the service. That’s risky behavior when facing an airborne pathogen, but targeted rules minimizing that risk would definitely violate the free exercise clause. The non-mitigatable elevated risk makes the need for contact tracing after an exposure event quite likely, and justifies the strict numerical limit on attendance.

    1. I’m sure the congregation would forego singing if medically necessary — but I’m sure the casinos are as quiet as a tomb.

      1. “I’m sure the congregation would forego singing if medically necessary — but I’m sure the casinos are as quiet as a tomb.”

        Because adults who believe supernatural stories are true (or at least claim to believe supernatural stories are true) are known for their excellent judgment, deference to science-based authority, and reliance on reason?

        1. You know what’s also science-based? Acknowledgement of trails of orphans left across continents every generation or two, as religions got out of control. Religions as talking points by politicians, leading literal crusades.

          So government officials using that was severed for the good of all, live and let live.

          You seem to have a problem with that.

          Now get back to your own religious hatred, where you’ve swapped “for god” with “for the people”, and “in the next life things will be better” with “in 5 years things will be better.”

          Both sides are terrible plagues on humanity. You only recognize one side.

    2. So, breathing hard isn’t the same as singing in any way shape or form? Have you seen some people exercise and how they exhale to perform a particularly difficult portion of an exercise? It gets downright nasty.

      I do think that a limit on singing due to what we know of this virus so far would meet strict scrutiny requirements. Or at the very least could be worked with in the following manner: Congregations wishing to sing are more severely limited due to the manner in which the virus spreads, where as congregations who will not be singing are limited in a manner consistent with other indoor gatherings. That way there’s a choice.

    3. Have you data on singing through a mask?
      The point of masks is to prevent the spread of projectile virions. Clearly a mask is required during singing.
      You could have a point the the spacing between congregants needs to be 10 or 15 feet not just 6 feet.
      But your claim does not have the stamp of authority by experience.

    4. “congregants are expected to sing wholeheartedly, often for as much as thirty minutes ever the course of the service.”

      Got to tell you, we have NOT been doing that in my Catholic church, ever since they took the hymnals away from everybody but the (much diminished) choir, on account of them being hard to sanitize. About the only hymns that get any accompaniment from the congregation are ones like “Amazing Grace”, which everybody but everybody knows by heart.

      In any event, only alternating pews are not roped off, and family groups are directed to maintain spacing between each other at all times, (And are doing so!) And it’s not like we were ever required to sing at the top of our lungs. You put several hundred people in the same building, even at the current reduced occupation levels, and singing at a conversational level is quite adequate.

      The Catholic church has always had epidemic protocols which everybody was expected to comply with as directed. This is a little more extreme than the usual flu season protocol, but we’re coping.

  5. I am troubled by the different standards for churches versus other gatherings – fifty percent capacity for one and a flat limit of fifty for the other. Unless there’s a really good reason for that distinction I think it probably violates the First Amendment.

    But if the same rule applied to all gatherings then I don’t see it as anti religious discrimination. At that point it would simply be a rule of general applicability with a legitimate state interest.

    1. The ‘good reason’ is that the left wing of the Court are members of the social justice cult and they want to get rid of rival belief systems like Christianity and classical liberalism so that naturally outweighs all other concerns including the rules of the aforementioned rivals such as the Constitution.

      1. It’s not just the treasonous five — a lot of governmental officials are of the same mindset, but moreso as they view clergy as a threat to their power.

        Religious freedom as we’ve known it for the past 150 years has been the right to go to your church rather than having to go to mine. Now it’s the persons of faith versus the secular heathens — and don’t forget that a lot of faiths oppose “games of chance” on theological grounds — the belief is that the gambler wins with the assistance of the Devil.

        Hence Nevada favored Satan over God.

        1. “Hence Nevada favored Satan over God.”

          Nevada has no more business picking a winner in that one than it has in choosing Wile E. Coyote over the Road Runner, Bugs Bunny over the Easter Bunny, Superman over Batman, or Delta House over Omega House.

          Government should not pick winners in the context of fiction.

          1. And one’s thinking that the average casino goers can win money is indeed a fiction

            1. Nah, average casino goers win money in casinos all the time. Just not on average. If you’d said, “thinking that casino goers can win money on average”, I’d have agreed.

              It matters a lot which part of that sentence the “average” applies to, the casino goer or the winning money.

        2. Amos Arch and Dr. Ed, respectfully, you do not get it.

          For most of our history, Christianity was given so much special favor and special rights by the government, and developed such a massive sense of entitlement, that mere equality — Christianity will be treated neither better nor worse than any other belief system — comes across as anti-religious bigotry and entitlement. From “In God We Trust” on our money to opening schools and legislative sessions with prayer to tax exempt status even for activities that are clearly commercial but are being done in the name of religion to allowing Christianity to form the basis for family law; the ways in which Christianity was privileged were too many to number.

          And while there are some who would actively persecute Christians, there aren’t that many. Most unbelievers are happy for Christians to do their thing so long as it doesn’t impact on the rest of us. (Pssst: Making it harder to stop a dangerous virus impacts on the rest of us.)

          But you’re not content with that. You want Christianity to be the dominant social, political and cultural force that makes choices for everyone else and that continues to get special treatment. Well, you guys are no longer the dominant belief system, so get ready to lose your special privileges. And no, that’s not persecution. That’s you can feel free to stop thinking you’re better than the rest of us any time.

          1. I don’t see how the Kav opinion has anything to do with Christians over Jews, Muslims, or Buddhists.

          2. We are overdue for another Great Awakening.
            The Wuhan Flu may do it — Diptheria did the last time.

            1. You just keep on hoping and praying for that great revival of superstition in America, Dr. Ed.

              I will spend that time watching reason, progress, science, modernity, education, merit, and inclusiveness continue to diminish the importance of superstition, dogma, ignorance, bigotry, insularity, and unearned privilege in American society.

          3. First, trick the people into treating gays/atheists/Christians like everyone else!

            Then WORLD DOMINATION

          4. Krychek,

            “For most of our history, Christianity was given so much special favor and special rights by the government”

            Oooh boy. So, this is inaccurate on a number of counts, and it leads to a critical misunderstanding of the concept of Freedom of Religion, and why it’s important.

            Point 1: Christianity isn’t some unified whole, but a large number of different sects, groups, and more.
            -Catholics, Mormons, Pilgrims, Puritans, Baptists, Jehevovah’s witnesses and more. They’re all different. There is no unified “Christianity” And freedom of religion exists so that one of these groups doesn’t dominate the others (or any of the other religious or nonreligious groups, as has had happened in the past.

            Point 2: The items you’re arguing as “extra privileges” from family law to “God we Trust” are large SOCIAL mores, not religious “religious.” You could probably include things like “Not bearing false witness before a court” (Fun fact, that’s basically the 9th commandment) or not stealing (Fun fact, that’s the 8th commandment) as “Special Christian privileges.” These social mores also include things like “Don’t take a bribe” and “Don’t engage in nepotism”.

            Point 3: Freedom of religion (and it’s “special privileges) largely exists to protect religious minorities from the power of the state or state-like social power. It can be compared to protections for ethnic minorities or women, or freedom of speech and the press.

            There’s a reason for this. Historically, the State has sought to persecute other religions as a means of increasing its own power. Whether it do so by coopting a religion for itself, and getting everyone else to conform (See 17th century Europe, Puritans, Pilgrims, etc) or by elimination of religion in favor of just “The state” (see China, especially current persecution of Muslims, Soviet Union). These protections for religion are critical, in the same way that protection of freedom of speech, the press, or arms is critical. It limits the power of the state, which can become dictatorial otherwise.

            Christians largely don’t “think they’re better than the rest of you.” They simply want to practice their religion, without adverse interference from the state. And the state…doesn’t value that.

            1. Armchair lawyer, laws against perjury and theft serve a secular purpose. There would be good reasons to have those laws even in a society in which nobody was religious. So the fact that they also happen to appear in the Ten Commandments is irrelevant. And that’s completely different from, i.e., laws against homosexuality, fornication, masturbation, laws requiring businesses to close on Sunday, laws requiring witnesses in court to swear on the Bible so help them God, laws forbidding atheists to be notaries, and laws against blasphemy, none of which serve a secular purpose and all of which are based solely on Christian morality. And all of which were on the books. Massachusetts’ last criminal prosecution for playing cards on Sunday was in 1974, and its Constitution still contains a provision requiring its governors to be of the Christian religion. So do not give me this crap about how all this religious legislation is social mores. It’s religious. And to the extent that it is (or was ) social mores, those mores were based on religion.

              And the real reason we have “In God We Trust” on the money and legislatures that open with prayer is because the religious don’t want anything of any importance to take place without first pausing to recognize their Deity. I can’t even give a clerk a dollar to pay for a candy bar without handing over a document that says we trust in God. In the total scheme of things, that’s not as bad as what the Chinese are doing to the Uighers, but still, making me essentially take a bow to your religious faith as a condition of conducting a financial transaction isn’t nothing. I’m sure that if the money said “God Doesn’t Exist” that Christians would find it oppressive, and for the same reason.

              You are right that the First Amendment performs an important function in preventing religious persecution, but the establishment clause also precludes treating religion more favorably than non-religion. I’m fine with you practicing your religion, so long as it doesn’t cause any ill effects for anyone else. So are most other atheists I’ve ever known.

              1. The issue is, you extend “ill effects” far beyond the normal range of actions available to society, and seek to impose your moral and social code on minorities…minorities that deserve protection.

                Moreover, many of the issues you cite as “religious” also serve a very secular purpose. Let’s just take one as an example: “laws requiring witnesses in court to swear on the Bible so help them God.” This has a clear secular purpose. It helps to prevent perjury. Many people are adverse to lying against their beliefs. And if using those beliefs can reduce the prevalence of perjury in the courts, then that’s a clear, useful, secular purpose.

                If you don’t want to use paper dollars, don’t. Use bitcoins, or gold, or credit cards, or whatever other medium of exchange you want. It’s your right. Or use one of these silver coins that doesn’t have the words “In God We Trust” on it. (You might find it more offensive to use though).

                https://www.moneymetals.com/president-trump-999-pure-silver-1-oz-round/391?

                1. You know, I’ve been in the legal business off and on since 1978, and one of the things I’ve learned in those too many years is that people who are going to lie, are going to lie, no matter what they swear. In my case, since I don’t believe in God, the oath is a completely meaningless ritual, and the same purpose would be better served simply by reminding me that I’m testifying under penalty of perjury. I’m not going to be deterred by the threat of a hell that I don’t believe in; I might by the prospect of a five year prison sentence. So again, it’s just making everybody take a bow to your religious beliefs before business can move forward.

                  By the way, I was once in a courtroom — the District of Nebraska, the late, great Judge Warren Urbom presiding — in which an Indian objected to having to take an oath to the Christian God. Judge Urbom allowed him to compose his own oath in conformity to his own religious beliefs, which he then did, and which was accepted by the Court. The prosecution objected so vigorously I thought he was going to blow a blood vessel. He actually proposed that the witness, who was there under subpoena, be required to take an oath that was offensive to his own religion or be held in contempt. So again, do not give me this crap that it’s a secular purpose. It’s religious.

                  Which takes us back to my original point. You want religion to not just be treated equally; you want it to be given special favoritism, and you’re convinced that it’s anti religious bigotry to not give it special favoritism. This displays a massive sense of entitlement.

                  And yes, I can arrange my affairs so that I never have to use cash, but why should I have to? Suppose that shoe were on the other foot. Suppose a bunch of secular humanists take over the government and replace “In God We Trust” with “All Religions are Crap.” You, too, could arrange your affairs so that you never needed to use cash, but I somehow think you would not see that as the point. I’m just as entitled to my beliefs as theists are to theirs, and the government should not be putting its thumb on the scale. On either side.

                  Lastly, in terms of what is “ill effects”, I get that when you have a lot of people living in close proximity to one another with different values, that occasionally they will get on each other’s nerves. And as a good neighbor I, for example, say nothing about the annoying church bells that wake me up on a Sunday morning. But those sorts of annoyances are not what I’m talking about.

                  I’m talking about the massive sense of entitlement that leads churches to say that even though large gatherings make it harder to control a deadly virus, and even though simply not meeting for a few weeks or months until it’s under control would help stop the spread, that it’s more important that they practice their religion than it is that people not get sick. That’s the sort of thing that makes an increasingly secular society tell religion that it can go to hell. (That, by the way, is a line from the TV show Picket Fences. An Irish Catholic woman has a genetic disease that means that any children she has will be born severely deformed. She tells someone that she can’t use birth control because it’s against the church, to which the response is, Oh, then tell the church to go to hell.)

                  1. Listen, perhaps for you, an oath on a religious text doesn’t matter. But please understand that is DOES matter for a great number of other people, and because it matters to them, it serves a secular purpose in helping to prevent lies. The entire idea, is to demonstrate a moral or ethical sense of right or wrong (United State v Ward). The oath can be changed as appropriate for atheists or other religions.

                    Moreover, you appear to have a particular animus towards all other religions. One might consider it a belief structure on its own. A belief that the absence of any religion is needed. And you demand your belief structure take precedence over all other belief structures. A simple word on a piece of paper requires you to do nothing, believe nothing, and comply with nothing. But a statement that “All religions are crap” would be offensive and an endorsement of a particular belief structure (Atheism) by the US government. It would be just as wrong as a piece of currency that says “Catholicism is the one true religion” or “There is no God but Allah”.

                    And yes, it is more important to some people to practice their religion, because it is something they BELIEVE in, than the relative risk due to illness. It’s the same reason you see massive protests, because people BELIEVE in the cause, and it is worth the risk. It’s the same reason that you see doctors and nurses go into hospitals, even though they know that there are severe risks. Because the BELIEVE that the work they are doing is worth the risk. Belief is a powerful thing, and it keeps our society going.

            2. “see China, especially current persecution of Muslims,”

              Admittedly the Muslims are the only ones being shipped to the death camps right now, (So far as we know!) but the Christians aren’t far behind, what with the government there having mandated replacement of all religious imagery with pictures of Xi.

          5. From “In God We Trust” on our money

            This clearly refers to Aidoneus.

    2. fifty percent capacity for one and a flat limit of fifty for the other. Unless there’s a really good reason for that distinction I think it probably violates the First Amendment.

      But if the same rule applied to all gatherings then I don’t see it as anti religious discrimination

      One step at a time. This is a fight merely to not treat religion, side by side with speech and peaceful protests, at the highest of protected rights, from being swirled around in the bottom of the garbage can with the effluvia from rotting carrot tops while head cheese is lifted up onto a pedestal.

    3. I am troubled by the different standards for churches versus other gatherings – fifty percent capacity for one and a flat limit of fifty for the other. Unless there’s a really good reason for that distinction I think it probably violates the First Amendment.

      In the venues I have seen, people pack much tighter in churches than in gyms. My experience has been that people pack tighter in churches than in any places except subways and elevators. Restrict a church congregation to 50%, and you won’t get even the distancing you would have in a gym going full blast without restrictions. As a premise for different rules, that would make sense.

      1. Do you not understand how percentages work?

      2. Your experience is weirdly different from mine, unless you’re referring to families clustering together.

      3. The super spreader events I’ve heard about have been:

        1) Food processing plants
        2) Churches/religious events
        3) Restaurants
        4) Bars
        4) Call centers
        5) Dumb-ass COVID parties

        I suppose gyms should be due.
        But I thought hairdressers were due, and so far no probs.

  6. The parishioners should light a few buildings on fire and say its for racial justice and then they could do whatever they want.

  7. I just wanted to, ignoring the substance of the opinion itself, which I have opinions about but have been articulated elsewhere …

    An unsigned per curium opinion with 4 dissents … isn’t that highly unusual? If there are that many dissents, normally that is grounds to actually hold argument or actually write the opinion out to explain yourself. Hell even three dissents is usually enough to prompt some sort of response.

    Issuing a 5-4 per curium opinion seems highly irresponsible in that regard. It is dismissing a significant dissent with nothing, which is not how the court is supposed to work. It is supposed to have argument and all points of view down. I would be interested to see what Kagan and Robert’s actually have to say here.

  8. “I suspect all future COVID cases will split along the same 5-4 lines.”

    Why? Do you expect all future COVID cases to involve a demand for limitless special privilege benefiting superstition-based claims?

    1. If you want to remove religion from the First Amendment, please propose so, and if The People judge it wise, they will do so.

      Then politicians csn get back to passing laws mandating no religion, as you fancy. Or maybe they will pick one. Who knows? I am no historian.

      1. People should be entitled to believe as they wish. People should generally be entitled to worship as they wish.

        Limitless special privilege for religious claimants — as sword and shield, often to defend bigotry — in a relatively recent concept in America. I do not expect it to last long.

    2. Superstition-based claims? Like Justice, Equality, Fairness, Human Rights?

      Because it is absolutely impossible to believe in any of those things unless you believe in universals, and that universal is generically speaking called God.

      You cannot come up with any valid reason why one group should not enslave or exterminate another group of people without resorting to “superstition.”

      1. Sure I can. The pure utilitarian reason that violence begets more violence, and unless I’m prepared to gamble that my side will always be at the top of the pecking order, treating others as I wish to be treated is both a moral imperative and a good strategy

        1. You mean your psuedo-utilitarian claim.
          That you think so is not a reason.

          1. What’s pseudo about it? Do you disagree that violence begets more violence, or do you disagree that majorities sometimes find themselves no longer in the majority, at which point having the Golden Rule as a universal precept will be something they’ll be happy for? Exactly which of those two premises to you disagree with?

            Despite actual evidence for the existence of God being next to non-existent, atheism is always going to be the minority opinion because it’s not warm and cuddly. The idea that the Lord of the Universe is my best friend is always going to attract a larger following than the idea that we’re on our own and we just have to figure it out, because if we don’t, nobody else is going to figure it out for us.

            But we are alone, which means we’re just going to have to do the hard work of figuring it out for ourselves. And if you can’t help with that process, then please get out of the way.

  9. Kavanuagh:

    First, does the law create a favored or exempt class of organizations and, if so, do religious organizations fall outside of that class? […] If the religious organizations are not [favored], the second question is whether the government has provided a sufficient justification for the differential treatment and disfavoring of religion.

    The upshot of Kavanaugh’s opinion is the mere existence of any secular exemption triggers at least some burden (Blackman calls for strict scrutiny) on the government to justify leaving the religious exercise outside of the exemption. Eugene persuasively rebuts this argument in his brief in Fulton v. City of Philadelphia:

    when the law restricts a wide range of behavior, entirely apart from its religiosity, there is no principled way to administer a constitutional exemption system, even when the law also exempts some behavior (again, for reasons entirely apart from religion).

    Eugene gives four examples of laws with exemptions (trespass, duty to testify when subpoenad, breach of contract, anti-discrimination) that would all trigger some burden on the state to justify not providing the exemption to religious exercise. Depending on exactly what that burden is, Employment Division v. Smith would be weakened, or per Blackman, effectively reversed.

  10. Blackman:

    The Free Exercise Clause should not turn on this sort of ad hoc balancing test. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring

    You keep using those words. I do not think they mean what you think they mean.

    1. Also, he should probably re-read Masterpiece Cakeshop.

      1. He might reasonably be referring to Gorsuch’s concurrence.

        1. Well, he might be referring to Gorsuch’s concurrence, but I do not see how a two-judge concurrence can be relied upon to claim that the case “suggest[s] a far more skeptical standard of review is appropriate.” The fact that Gorsuch’s concurrence only carried with it Alito would obviously suggest otherwise.

      2. IDK, Kennedy’s malice standard is probably met here.

  11. In one of the few times I disagree with Blackman, I love Gorsuch’s dissent. These cases ARE simple. Lawyers LOVE to make them complex, in order to get their desired result. But they are not. This is simple. It hurts churches. It’s unconstitutional. End of line.

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