Coronavirus

Prohibited Prayer and the Limits of Public Health Authority

The Supreme Court reaffirms that COVID-19 regulations must comply with the First Amendment.

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When Christians met in each other's homes for prayer or Bible study, they had to be careful. Such gatherings were illegal, and the organizers never knew who might inform the authorities.

Although that sounds like a scene from the Soviet Union, it actually describes the situation in California under COVID-19 regulations that the Supreme Court blocked last Friday. By issuing an injunction against Gov. Gavin Newsom's restrictions, the Court reaffirmed that politicians must comply with the Constitution when they decide how to deal with an epidemic.

The main rule at issue in this case limited at-home religious gatherings, whether inside or outside, to people from no more than three households. If two people from different households joined a host for a prayer meeting or Bible study session, for example, no one else was allowed to come.

As the petitioners noted, that limit "does not permit an individual to gather with others in her own backyard to study the Bible, pray, or worship with members of more than two other households, all of which are common (and deeply important) practices of millions of contemporary Christians in the United States." Meanwhile, California was allowing much larger groups to gather in other settings: inside of stores, barbershops, nail salons, tattoo parlors, movie studios, and (in some counties) restaurants, for example, or outdoors at restaurants, wineries, gyms, movie theaters, zoos, museums, sporting events, concerts, political demonstrations, weddings, and funerals.

The upshot was that Californians could "sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus." But they were not allowed to "host three people from different households for a Bible study indoors or in their backyards."

Justice Elena Kagan, who objected to the Supreme Court's injunction in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, argued that California's regulations did not implicate the First Amendment because they were neutral and generally applicable. The state "has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike," she noted.

The petitioners argued that Newsom's rules nevertheless amounted to "a subtle but unmistakable religious gerrymander." Five justices were inclined to agree, saying the plaintiffs were likely to prevail in their claim that the restrictions on private religious meetings violated the First Amendment.

This is not the first time that the Court has called attention to the impact of COVID-19 control measures on religious freedom. It blocked enforcement of New York Gov. Andrew Cuomo's onerous restrictions on "houses of worship" last November, vacated a decision upholding Colorado's limits on religious services in December, and reached similar conclusions in four cases involving state and local regulations in California two months later.

By now, the Court said, it should be clear that public health regulations are subject to strict scrutiny "whenever they treat any comparable secular activity more favorably than religious exercise" and that the relevant consideration is "the risks various activities pose, not the reasons why people gather." To pass strict scrutiny, a state has to "show that measures less restrictive of the First Amendment activity"—such as face masks, physical distancing, and more generous group limits—"could not address its interest in reducing the spread of COVID."

Kagan is certainly right, based on the Court's pre-pandemic precedents, that disease control measures can be constitutional even if they incidentally impinge on religious freedom. But Kagan, Breyer, and Sotomayor always seem willing to accept politicians' public health judgments, even when they are scientifically dubious, change in the midst of litigation, or result in policies that privilege politically influential industries or explicitly treat religious gatherings as a disfavored category.

At this point, it is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented as necessary for the protection of public health, as such policies always are.

© Copyright 2021 by Creators Syndicate Inc.

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  1. “When Christians met in each other’s homes for prayer or Bible study, they had to be careful. Such gatherings were illegal, and the organizers never knew who might inform the authorities.”

    Although that sounds like a scene from Tony’s wet dreams, it actually describes the situation in California under COVID-19 regulations

    1. I was thinking it sounded like Diocletian Rome

      1. It does, but then so do Tony’s fantasies.

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  2. Great but so what? It’s too little too late. And even if they ruled the opposite way, it wouldn’t matter. The fact is, the war today is online not in the streets or at the capitol or in the courts. We succumbed too easily to the tyrants from the beginning, and too few of us were willing to fight. We lost the battle and we have only ourselves to blame. Therefore there is no excuse for violence, insurrection, or intimidating judges or journalists who don’t take our position.

    1. >>the war today is online

      I stand behind your efforts.

  3. It is about time SCoTUS stepped in and clarified that our enumerated rights of free exercise of our religion may not be arbitrarily suppressed, which is exactly what happened. I think this was a lesson learned.

    Also, the open-ended nature of ’emergency’ declarations needs to be addressed. Mostly, they need to be time-limited, with the Legislatures making the ultimate decision to extend them.

    1. “It is about time SCoTUS stepped in and clarified that our enumerated rights… may not be arbitrarily suppressed”

      Not ever going to happen with Roberts at the wheel. Offending his fellow Brahmins is something he avoids like the plague.

      1. We disagree about John Roberts. I understand and appreciate why you feel the way you do. I came to a very different conclusion about him (I have posted on this before). A century from now, they will talk about his tenure as Chief Justice. The country is very, very lucky to have him. He was one of the things that ‘W’ got right (IMHO).

    2. I agree that it was time SCOTUS stepped in (long past time, actually). But only time will tell whether it was a lesson learned or a reprimand to be evaded (again).

  4. Good work on the first amendment, SCOTUS; now do the second.

    1. It would also be interesting if SCOTUS addressed the confusion between “religion” and “strongly-held philosophical principles”.

    2. Restrict it to militias? Sounds good.

      1. The militia: every able bodied man.
        I hope that helps.

  5. “Although that sounds like a scene from the Soviet Union, it actually describes the situation in California”

    And your point is?

  6. “Sonia Sotomayor, argued that California’s regulations did not implicate the First Amendment because they were neutral and generally applicable. The state “has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike,” she noted.”

    It’s ok because it’s not just for religious rubes, you know. And why don’t you go get a haircut?

  7. Shouldn’t limit their ability to meet. You can tell they’re not really too Christian anyhow if they are asshole enough to meet during a pandemic anyhow.

    It’s all about them- fuck anyone who gets covid from them apparently. Bunch of selfish fucks but what else is new?

    1. Bigoted much?

      1. Totalitarian regimes need creeps like him.

    2. Which is it; your love of authority, or your hatred of [anyone else’s] freedom?

    3. anyhow anyhow?

    4. I assume you say the same about shoppers? How dare people jeopardize public health by mingling with strangers in stores when they could just get stuff delivered!

  8. way to get on the fucking ball, assholes. my mom didn’t get to goto church for a year

  9. It would also be interesting if SCOTUS addressed the confusion between “religion” and “strongly-held philosophical principles. its should be really intresting.
    visit-https://www.ankitaescort.com/

  10. BS alert. The comparison with the Soviet Union is a clear giveaway. NO ONE is being prevented to pray or to do it publicly and share it in social media with a million people if they wish and how they wish. Comparing restrictions on PHYSICAL gatherings during a pandemic, regardless of activity, with religious repression is just Conservative propaganda of the cheapest kind.

  11. Didn’t Gavin Newsome also violate his own rules against gatherings?

    The courts should interpret all such violations by politicians who promulgated the regulation as proof that the reasons given for the regulation are false and invalid.

  12. Yeah, next time there is a pandemic, and it has a 25% mortality rate, well, just too damn bad, gov’t should be allowed to do NOTHING to prevent spread. You people are fucking morons.

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