Churches, Shutdown Orders, and Religious Freedom Restoration Acts (in Kansas and Elsewhere)

If people are allowed to go to bars, restaurants, libraries, schools, and factories (with suitable social distancing), should they also be allowed to go to church?

From a memorandum released Wednesday by Kansas Attorney General Derek Schmidt (see also an argument the same day written by Samuel MacRoberts at the Kansas Justice Institute):

[Kansas Governor Laura Kelly's] EO 20-18, which by its terms takes effect today, revises guidance for religious gatherings while it remains in effect. Its key changes are:

"Churches or other religious facilities" are now expressly covered by the prohibition on "mass gatherings" rather than being exempted as they were previously.

More than 10 people are prohibited from convening "in a confined or enclosed space at the same time," including in churches or other religious facilities.

"Churches or other religious services or activities" are prohibited from having more than 10 congregants or parishioners in the same building or confined or enclosed space, but a larger number of persons who are conducting the service itself may gather provided social distancing and similar requirements are maintained.

… EO 20-18 does not prohibit Kansans from leaving their homes to perform or attend religious or faith-based services or activities, nor does it impose the new prohibition on gatherings exceeding 10 persons on religious gatherings that are not in "the same building or confined or enclosed space" (e.g., outdoors)…. {Requirements for social distancing, hygiene and other COVID-19 prevention measures remain in effect for all gatherings, including religious gatherings not subject to the new 10-person limitation.}

The Kansas Preservation of Religious Freedom Act … provides: "Government shall not substantially burden a person's civil right to exercise of religion even if the burden results from a rule of general applicability, unless such government demonstrates, by clear and convincing evidence, that application of the burden to the person: (1) Is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest." … It protects the "exercise of religion," which is defined broadly and expressly includes "the right to act … in a manner substantially motivated by a sincerely-held religious tenet or belief," which certainly includes attending … worship. It restrains government from "substantially burden[ing]" the exercise of religion, and "burden" specifically includes "assessing criminal … penalties." …

[W]e have no doubt the restrictions on religious gatherings in EO 20-18 may serve a compelling governmental interest of protecting the public health by slowing the spread of COVID-19. But the executive order also must be the "least restrictive means" of furthering that compelling interest. And the burden is on the government to prove by clear and convincing evidence that no less-restrictive means is available.

It is doubtful the government can meet that burden here.

First, the government cannot show by clear and convincing evidence that it is currently necessary to subject every church or other religious services or activities throughout the state to the requirements in EO 20-18 to slow the spread of COVID-19. Current Centers for Disease Control guidance for faith-based organizations recommends a graduated approach based on community risk. That individually tailored less-restrictive means is absent from the blanket statewide approach of EO 20-18.

Second, EO 20-18 exempts 26 categories of activities or facilities from its mass- gathering prohibitions, see EO 20-18, paragraph 2.a-z, just as the prior version of the mass-gatherings order (Executive Order 20-14) had also exempted religious activities. Indeed, only religious activities (and non-religious funerals) are singled out for increased regulation under EO 20-18—while other indoor gatherings that invite similar interpersonal interaction and thus pose similar public health risk (such as gathering in shopping malls or other retail establishments or in libraries) remain unregulated except by the less-restrictive means of general social distancing and hygiene guidelines.

Third, EO 20-18 offers no justification for why voluntary compliance had failed to satisfy the compelling public health interest or why criminal penalties are now necessary to promote compliance by Kansans engaged in religious services or activities (but not, e.g., by those engaged in shopping, child care, providing government or legal services, or being detoxified). Indeed, the continued reliance on social-distancing and hygiene restrictions for mass gatherings in at least 26 other categories suggests the new burdens on religious services or activities—under penalty of arrest, imprisonment or criminal fine—are not the least-restrictive option to satisfy the State's compelling interest.

Separate from the Religious Freedom Act, … Section 7 of the Kansas Bill of Rights provides (emphasis added):

"The right to worship God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend or support any form of worship; nor shall any control of or interference with the rights of conscience be permitted, nor any preference be given by law to any religious establishment or mode of worship. No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election, nor shall any person be incompetent to testify on account of religious belief."

Kansas courts interpreting this provision have adopted a version of a strict scrutiny test substantially similar to that in the Religious Freedom Act….

To help prevent the spread of COVID-19, the Office of the Attorney General advises Kansans to adhere to the limitations on religious and faith-based gatherings set forth in Executive Order 20-18. However, for the reasons set forth above, the provisions of the governor's order that purport to criminalize certain gatherings for religious services or activities likely violate both state statute and the Kansas Constitution, which would render them void and unenforceable. Because no Kansan should be threatened with fine or imprisonment, arrested, or prosecuted for performing or attending church or other religious services (which even during the current state of disaster emergency remain an "essential function" recognized by EO 20-16), law enforcement officers are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities.

I think the AG's analysis is correct, given the way the Governor's order works; but I think it's worth elaborating further on this.

In Employment Division v. Smith, the Court held (rightly, I think, for reasons I discuss at length here) that the Free Exercise Clause bans discrimination against religious practice, but doesn't require religious exemptions from generally applicable laws.

Some courts and academics have taken the view that, whenever a law bans an activity but allows some secular exemptions, it stops being "generally applicable," so that religious exemptions are indeed presumptively required. The most prominent example is the opinion of then-Judge Alito in Fraternal Order of Police v. City of Newark, who held that the Free Exercise Clause required religious exemptions from a no-beards policy for police officers, because the department provides an exemption for officers who had medical reasons not to shave:

[Under the Free Exercise Clause, the government may not decide] that secular motivations are more important than religious motivations…. [T]he Department's decision to provide medical exemptions while refusing religious exemptions is sufficiently suggestive of discriminatory intent so as to trigger [strict scrutiny]. [T]he medical exemption … indicates that the Department has made a value judgment that secular (i.e., medical) motivations for wearing a beard are important enough to overcome its general interest in uniformity but that religious motivations are not…. [W]hen the government makes a value judgment in favor of secular motivations, but not religious motivations, the government's actions must survive heightened scrutiny.

But I don't think that's consistent with the Court's decision in Smith. Most laws have many exemptions, including ones that offer favored treatment to certain secular motivations. Title VII of the Civil Rights Act generally bans employment discrimination, but not by small employers, or when a provision is a "bona fide occupational qualification" (a narrow exemption, but an important one); these provisions are broader than the narrow exception that the Court has recognized under another Free Exercise Clause theory for ministerial employees of churches. The Copyright Act restricts certain uses of others' copyrighted works in § 106, and then has more than 15 sections (and many more subsections) of exceptions in §§ 107-122. Trespass law has exceptions for necessity, for adverse possession, for eminent domain, and for other reasons.

Likewise, battery is a crime—but it has exceptions, including for necessary defense of person, necessary defense of property, performing a lawful arrest, and more. I take it we'd agree that the government shouldn't allow me to punch you as retaliation for your blasphemy; but that means that it treats a secular motivation (protecting my property) as more important than a religious motivation (protecting God against insults, if that's how I conceptualize blasphemy). I don't think the Free Exercise Clause condemns the denial of religious exemptions in such cases. More broadly, I don't think that my religious motivation for punching you, for infringing your copyright, or for discriminating against you in employment.

Yet when a legislature expressly enacts a Religious Freedom Restoration Act, it is indeed calling for broad protection for religious practice; and it's reversing the power (since a RFRA is just a statute) to exclude a law from the RFRA exemption regime, when it thinks that religious exemptions really shouldn't be authorized. And when the government has a broad range of exceptions for secular activities that are pretty similar to their religious analogs, or perhaps even more risky, then it does seem likely that denying a religious exemption is not "the least restrictive means of furthering [the] compelling governmental interest."

And this applies, I think, to the Kansas Governor's order. The order exempts, among other facilities,

• schools,
• shopping malls,
• libraries,
• restaurants and bars,
• manufacturing, processing, distribution, and production facilities,

at least so long as they maintain suitable social distancing measures.

This suggests that exempting churches, so long as they maintain similar social distancing measures (e.g., "[p]reserve … 6 feet between people," which is the spacing required between tables or bar stools at restaurants and bars, or not being "within arm's length of one another for more than 10 minutes," which is required for shopping malls), would not unacceptably undermine the compelling government interest.

Again, I don't think the compelling interest test should be applied to generally applicable laws under the Free Exercise Clause, and I think the Governor's order, despite its exceptions, is still generally applicable for Free Exercise Clause purposes.

But the Kansas Legislature provided religious objectors with presumptive protection that goes beyond the minimum that the Free Exercise Clause requires. The Legislature (like many others, including a nearly unanimous Congress in 1993, in a statute that remains applicable as to federal laws) required the government to grant religious exemptions when they don't unacceptably undermine a compelling government interest. The Legislature could exclude emergency statutes from that rule, but it hasn't. That appears to be the law in Kansas, and the Governor's orders should comply with it.

Comments

[Stephen Lathrop]

I am not sure I understand why the least restrictive means has to be tailored individually to the complaining church. Seems like that would mean any policy to close churches on behalf of a compelling government interest would have first to tailor a separate plan for every church, and enact them all, which seems impossible.

Also, why is a court better equipped than a legislature to decide which policies are needed during an emergency? If a court decides that the least compelling means applicable to the complaining church is also a notably more burdensome means for the state to administer, why is it wise, or even acceptable, to let the court thus burden emergency administration?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The court is not "better" equipped to decide amongst policies; but courts certainly are ordained by Constitution with reviewing actions by the legislature and governor.

[Brett Bellmore]

"I am not sure I understand why the least restrictive means has to be tailored individually to the complaining church."

Well, if you could arrive at a less restrictive means by individual tailoring, this pretty clearly means that by not applying individual tailoring, you had NOT arrived at the "least" restrictive means. And the law says "least" restrictive, not "as unrestrictive as can be reached by a general rule."

[Stephen Lathrop]

Perhaps a demand to tailor by an impossible means is not within the scope of the law?

[y81]

"Also, why is a court better equipped than a legislature to decide which policies are needed during an emergency?"--We are discussing an executive order, not a legislative enactment, so this question is not germane.

[Stephen Lathrop]

It seems to me not only germane, but critically important. The great danger of emergency powers is that the executive will run away with them. Trump demonstrates that danger continuously, and defiantly. The cure is to tie all emergency edicts to continuing legislative approval. When the legislature says the executive is done, the emergency power is done. There is no other way to control it. It used to be thought that the power of the purse would be sufficient. Trump killed that one by defiance of the power of the purse, plus defiance of legislative subpoenas.

Unfortunately, there have also been court decisions which armor plated executive defiance of the legislature during emergencies. Those need to be overturned.

[y81]

Evidently, the Attorney General and Prof. Volokh think that the Governor of Kansas has run away with her emergency power here, and the courts should rein her in. I'm not sure I follow your argument, but I think you are saying that courts should never rein emergency executive power, because that should be solely a legislative function, to be exercised on a post hoc and individualized basis, not by prior general statutes like the Kansas RFRA, and that unless and until the legislature acts, the courts should remain passive. Is that your argument?
(To be honest, your real belief seems to be that the courts should rein in Trump, but not Democratic state governors, but I presume you have a more principled argument than that.)

[Dr. Ed]

I'm thinking that Trump is keeping his powder dry while these Dem and RINO Governors run amuck -- Trump understands Joe 6-pack (he's been around the building trades most of his life) and he's waiting for one of these tin-hon despots to go a bridge too far (which Beshear in Kentucky probably has) and then ride in as the knight to the rescue.

[Rev. Arthur L. Kirkland]

This blog's great service is providing a window to clinger thinking. Trump the Mastermind!

[Keith Waters]

I am going to send you a thesaurus so you can condescend to us in more various ways. Where should I send it? Clingers has gotten stale.

[Rev. Arthur L. Kirkland]

Stale is conservatives’ favorite flavor.

Other than that, great comment!

[Stephen Lathrop]

That is your concern, not my belief.

I think the best way to keep government flexible and responsive is to give a bit of an edge to the legislature, which tends to be more responsive than the executive, and far more responsive than the judiciary.

That, by the way, is what I think the founders intended for America's government. That is why the founders made such a big deal about the power of the purse. They thought that would give an edge to the legislature on everything. We are pretty far from that now, and in a pickle because of it. It happened partly because we degraded both the idea of politics, and the practice of politics. That undercut the legislature more than it did the executive or the courts.

Today's Americans think, "politics," is a term of disrepute. The founders thought the opposite. They thought politics were the means by which civilized people conduct public affairs. For them, politics enabled the sovereign to exercise its rightful continuing control of government. That way of thinking afforded politics more prestige than it has today. Our nation needs to reclaim that insight. If we thought politics was important, instead of degraded, we would practice it better, and more carefully.

As for the role of the judiciary in reviewing policy, it should not have one. Nor should it smuggle in policy intervention by asserting so-called standards of reason—standards which in practice are then reframed as demands for assent to facts which the judiciary posits as axioms. Today's courts do that far too often, always, it seems, with the aim of enlarging judicial policy influence.

Instead of that, the courts should wholeheartedly endorse the legislature's role, which should encompass determinations of the facts and reasons which justify policy. And by setting policy, the legislature should supervise the executive, using policy to constrain emergency executive powers to those the legislature approves or disapproves on a continuing basis. Those the legislature should never delegate as durable grants to the executive. That should be enforced as a principle by the judiciary.

For an example, to make that more concrete: the conduct of the military is the executive's to command, but the legislature should at all times supervise the objects of the military's activity. Objects which the executive thinks needful, it is free to submit to the legislature for endorsement. As with the military, so also with everything else. The executive administers and proposes. The legislature acts and disposes.

Thus, finally, to answer your larger question. If the courts need to rein in emergency powers of the executive, they should do it by ordering the executive's strict conformance to the will of the legislature concerning the objects of those powers.

[Dilan Esper]

Today’s Americans think, “politics,” is a term of disrepute. The founders thought the opposite. They thought politics were the means by which civilized people conduct public affairs

And of course, by "civilized people", they meant white male property owners.

I don't understand why you worship these people.

[Dr. Ed]

In an era of public votes, at town meeting and elsewhere, do you honestly believe that the guy's wife didn't find out how he voted -- if she hadn't been sitting next to him at the time?

And how many men really wanted their wives mad at them?

No, the women met after church and decided which way their husbands would vote...

[Keith Waters]

I'll take the Framers over the bunch we have in the national legislature these days. Maybe you prefer Maxine Waters over James Madison.

[David Nieporent]

I am not sure I understand why the least restrictive means has to be tailored individually to the complaining church.

Because that's the law.

Also, why is a court better equipped than a legislature to decide which policies are needed during an emergency? If a court decides that the least compelling means applicable to the complaining church is also a notably more burdensome means for the state to administer, why is it wise, or even acceptable, to let the court thus burden emergency administration?

Your complaint is with the legislature, which expressly required courts to make those determinations.

[Stephen Lathrop]

I get that you have pride of snide, Nieporent, but you are begging the question. Whether that's the law was the question.

And your view is that the legislature can impose judicial requirements on the courts?

[David Nieporent]

No; whether that's the law isn't the question. Nobody doubts that the RFRA exists or what it says. The question is how to apply that law in this instance.

I don't know what you mean by "impose judicial requirements." My view is that the legislature can pass laws, which courts are then required to apply.

[Martinned]

And, once again, an RFRA requiring an exception for churches that secular gatherings don't get somehow isn't an establishment of religion.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Did you even RTFA? The problem is that 26 other entities have exemptions from the 10-person limit; if they get exceptions, the RFRA doesn't permit explicitly leaving churches unexempted.

[regexp]

The 26 other entities were deemed critical. A church, mosque, temple, etc is not. Worship your magic sky wizard from home.

[Armchair Lawyer]

This type of attitude is why we need and have a first amendment, to protect people's religious beliefs.

[SimonP]

And the reason why we need to protect people's religious beliefs is...?

I'm not a fan of the kind of state-driven crackdowns on religious practices - or the full-on establishment of state churches - that inspired the First Amendment's religion clauses. And I appreciate we're not going to get away from protecting sky-wizard worshippers like they're not delusional any time soon, in this country. But I have a hard time making sense of this underlying "need" when the conversation is centered on the ways in which church services have been super-spreading events during this crisis, both within the U.S. and globally.

When governors are trying to balance economic and public health interests when crafting these shutdown orders, why should they be particularly sensitive to the interests of church-goers to continue congregating?

[Brett Bellmore]

Among other reasons, because religion is one of the few things a large number of people feel strongly enough about to challenge the government's commands, so governments that don't want to engage in violent suppression of a large fraction of the population pretty much have to tread lightly around it.

[SimonP]

This claim is pointlessly circular, so I dismiss it out of hand. Come back with something more responsive.

[David Nieporent]

It's simply a statement of fact. The government has to care about religious observance because religious observance is really really important to a lot of people. Nobody has to justify to you why they consider it important, and you don't need to share their view; you just need to realize that they do feel that way.

[Rev. Arthur L. Kirkland]

Is that a good argument for those who advocate special privilege for religious claimants.

The tide against religion's role in our society has been substantial during my lifetime. We have gone from creationism and prayer in schools -- I recall a clergyman telling my third-grade class that we should ask our parents to take us to church -- to a steady decline in church membership and attendance, with churches closing and religious schools consolidating.

The tide against bigotry is even stronger. Bigotry was open, common, and casual during my youth -- the bigots wanted everyone to know who they were, and that their way was going to be the way. Today's bigots are defensive, their intolerance rejected by most Americans.

If opposition to bigotry becomes "really really important to a lot of people" -- and religion becomes an increasingly attenuated factor in America -- should government stop caring about special privilege for religion? Would government "have to care" more about tolerance and less about religious claims in that circumstance?

A conclusion that government should be able to stifle religious claimants to appease tolerance proponents -- based on a balance of how many people care strongly about tradition and religion against how many feel strongly vs. modernity, reason, and tolerance -- seems a natural result of a "really really important to a lot of people" line of reasoning.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Why do you single out religious beliefs? Yes, the Constitution does -- and that is because so many know-it-alls like you have singled out religion over the centuries and millenia.

No one gets in the middle of Star Wars vs Star Trek. If governments tried to, they'd be laughed out of town. Yet religious beliefs generate enormous ill will, and you exemplify that to a T.

[SimonP]

I don't care about whether someone prefers Star Wars or Star Trek because no one is trying to shape the government to favor one or the other, to grant tax exemptions for ascribing to some Star-fandom, to amend constitutions designed to limit my freedom or enshrine discrimination against me, to carve out special exemptions from laws prohibiting discrimination, to taxpayer money for Star academies, and so on.

The animus I have towards religion is precisely the result of sky-wizard worshippers trying to use their religion to shape the society I live in and to restrict the freedoms I enjoy.

[Stephen Lathrop]

Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf — focus on the backstory. Ideals need institutional vessels for their protection and perpetuation. Before nationalism took over, the only vessels available to do that with were various religious establishments. Consequently, the centuries and millennia you mention were, in large part, an era of brutally contested ideals, legitimized under various banners of religious ideology.

The rise of nationalism somewhat suppressed those tendencies, by providing substitute vessels, in the form of nation states. Those at least potentially encompassed at once, and sometimes more peacefully, many adherents of different religions. That proved advantageous for almost everyone, especially including the non-religious.

Problem is, for a minority among religionists, those centuries-old habits proved difficult to unlearn. They never made peace with nationalism. During the routine back and forth of history, religious sects waxed and waned. Some sects, from time to time, grew large enough, and confident enough, that members began to encourage each other—to believe the old days of pre-nationalistic religious dominance could come again. Some dared hope they could assist some larger agent to hasten that along. Now is one such time, and William Barr, the Attorney General of the United States, is one such acolyte.

That is where the ill will comes from. From disappointment—amounting to a sense of betrayal—among nationalists subjected to religiously-motivated attacks on nationalistic ideals, attacks which nationalists think ought to be rejected as illegitimate. Aggravating that disappointment is unwillingness among some religionists—including William Barr—to accept long-customary historical change, because they want back the old days of religious dominance.

It was a mistake to put in charge of machinery built for the protection and enforcement of nationalist ideals, an anti-nationalist like Barr. So long as Barr continues to try to suppress customary nationalist ideals, expect ill will from nationalists in response. What else would you expect?

[Bob from Ohio]

"sky-wizard worshippers like they’re not delusional "

Even some non believers find this language offensive. Why use it? It detracts from your point.

Its not even 100% true. Many religions do not believe in a single all powerfull God.

[Rev. Arthur L. Kirkland]

People are entitled to believe as they wish. Asserting that organized religion is "essential" during a pandemic is not the work of reasoning, informed, competent adults. Competent adults neither advance nor accept supernaturally sourced arguments in reasoned debate concerning public affairs.

What distinguishes (or should distinguish) any strongly held -- assuming that traditional religious beliefs are strongly held (rather than matters of convenience or convention), a point contravened by much human experience -- belief or point of conscience from a religious claim? Is it the superstition? A particular number of claimed believers? An ornate building or a fancy hat? A strange ritual? A particular length of time?

As man progresses, I expect religion to continue to falter, at least in advanced countries. I believe religious believers should aim to establish a system in which they are content with the position of a minority. Don't want to live with a Buddhist icon on the currency or "allah" in the national pledge? Don't want institutions to have the right to exclude people who claim to believe in the supernatural from science or law faculties? Think ahead.

[Armchair Lawyer]

"Asserting that organized religion is “essential” during a pandemic is not the work of reasoning."

You're actually dead wrong here Rev.

Because you miss what organized religion really brings. And that is a sense of community, mutual dependency, dedication, and charity that is absolutely critical during a pandemic.

There is a classic problem in society and societal engineering.

How do you convince someone to do something that is disadvantageous for them personally, but advantageous towards society as a whole?

Answer that question for me Rev. Think about it seriously.

[Stephen Lathrop]

How do you convince someone to do something that is disadvantageous for them personally, but advantageous towards society as a whole?

Raise them in the humanistic belief that contributions to society as a whole get reciprocated—at least until religionists take over to enforce against the unconverted principles of exclusivity and non-reciprocation.

[David Nieporent]

I don't subscribe to the religious belief in "society as a whole." There's no such thing as society.

[Armchair Lawyer]

" humanistic belief that contributions to society as a whole get reciprocated"

Sounds a lot like religion.

[Brett Bellmore]

In other words, after ditching existing religions that have an evolutionary history of being largely compatible with civilization, you'd opt for the new fangled one that has already caused multiple societies to crash and burn.

[Rev. Arthur L. Kirkland]

By that standard, my attendance at a fraternity meeting would be essential. Or my attendance at a Rolling Stones concert.

(Feeling charitable, I will concede that organized religion is roughly a wash, generating roughly as much good as bad in society. I do not see sufficient evidence to support an 'advantageous toward society as a whole' contention.)

[SimonP]

Even some non believers find this language offensive. Why use it? It detracts from your point.

I'm not interested in tone arguments. Come back with something responsive.

[Armchair Lawyer]

"And the reason why we need to protect people’s religious beliefs is…"

Because we're not bigoted arse-holes? Because we believe America is a place where people of every race and religion can be free to live freely and worship freely?

I see this language, this reasoning, the side-long insults and it looks like just same exact language and arguments used to suppress African Americans, or minorities of any of a dozen different types throughout history. It's the same reasoning, the same mindset, the same mental pattern of abuse used to denigrate the "other" with which one doesn't identify.

Being American means protecting the rights of ALL Americans, no matter their race or religion, and their rights in these regard. But perhaps only "Conservatives" really get that these days....

[SimonP]

I see this language, this reasoning, the side-long insults and it looks like just same exact language and arguments used to suppress African Americans, or minorities of any of a dozen different types throughout history.

Religion is not race. Religious beliefs are commitments of creed that people consciously choose to undertake, ostensibly of their own volition. Accordingly, I have every right to judge adherents of any particular religious belief as harboring flaws of character and intellect.

It's not uncommon to use similar rhetoric as I have used to describe anti-vaxxers, flat-earthers, and other people who simply embrace beliefs about the world that have no basis in reality and little empirical support. That does not mean that it is "bigoted" to mock them.

Like others here, you cannot defend religion except by taking it for granted. The arguments are just empty and circular.

[Rev. Arthur L. Kirkland]

In religious circles, "just because" not only is a respectable argument but often is perceived to be the most compelling argument.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And you don't get to single out religion for your legal hatred.

If 26 kinds of facilities can be exempted as essential, including bars, restaurants, and malls, then your particular contempt for religion is precisely why the First Amendment and the RFRA exist.

[Stephen Lathrop]

Not following you.

Nothing you say seems to take account of the state's compelling need. That may be readily satisfied in any number of non-religious instances, but not readily or at all satisfied in the case of religious gatherings. Determining whether that is so should be a question of fact, not a question decided by fact-free contradiction from the bench. And in an extreme emergency, there ought to be wide judicial deference to the fact finding a legislature used to justify the policy. There is not time for lengthy study—and it makes no sense for a court, with less resources and no more time to substitute its own determination. For instance, there is a notable and growing record of instances where religious gatherings have spread Covid-19. I am not aware of any instance attributed to liquor sales, although perhaps some of those exist.

Careless use of analogies in this discussion is not helping. The court led the way in that particular mistake, but push-back is reasonable here.

[y81]

Stop. The legislature didn't justify this policy. We are talking about an executive order.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You are so caught up in your irrational hatred of irrational religions that you have lost track of all rational reasons for stopping irrational government.

[Dr. Ed]

OK. There is evidence that Blacks are way more vulnerable to the Wuhan Virus than everyone else -- how much more and why is open to debate, but mortality statistics seem to indicate this.

So we have a Black-only quarantine?
That (theoretically) could be justified on a medical basis.

But does anyone purport to be able to justify it on a Constitutional basis?!?!?

[Bored Lawyer]

" I am not aware of any instance attributed to liquor sales, although perhaps some of those exist."

Read the EO. Restaurants and bars are permitted to operate, so long as they observe 6-foot distance social distancing.

The reason you may not have heard of examples is that most states ban gatherings in restaurants and bars, allowing only takeout or grocery-store like purchases.

That to me is the nub. There is no rational reason why a bar or restaurant) should be permitted to operate and allow 100 people to gather there (assuming it has enough room for the social distancing) but not a church.

[Rev. Arthur L. Kirkland]

"There is no rational reason why a bar or restaurant) should be permitted to operate and allow 100 people to gather there (assuming it has enough room for the social distancing) but not a church."

Food is essential; a religious gathering is not. But enabling 100 people to gather in a bar is daft in these circumstances, which likely explains why the governors I have observed have limited restaurant operations to takeout (curbside, ideally) and delivery. Nobody should be gathering in bars. No authorities should be authorizing such gathering.

[David Nieporent]

Legislatures don't engage in fact-finding. Legislatures engage in passing laws. Courts engage in fact-finding.

[gormadoc]

Like bars, restaurants, and libraries are critical?

[Stephen Lathrop]

gormadoc, those are all closed in my state. I thought that was so almost everywhere.

But once again, what evidence is there that the actions and effects of those alleged analogies are either relevant to, or comparable to, what happens at religious gatherings. Why are they genuine analogues? Without an explanation of that in detail, it seems like the court is just asserting arbitrary authority in the name of denying arbitrary authority to the legislature.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What exactly are you arguing about, other than ignoring the First Amendment and the various RFRA?

[Stephen Lathrop]

I am arguing that no rights are absolute. Also, the right to self-government is as much a right as the others. Rights are often in tension. There is no way around it. The Bill of Rights constrains the right to self-government. There are instances where the right to self-government ought to constrain enumerated rights.

None of those constraints should go too far. The trick is in getting the balance right. If you were talking to Madison, he would tell you that striking that balance is what politics is for. In fact, that is what he did tell everyone, in Federalist 10.

Which brings us to the RFRAs. Those are an overt attack on the separation of church and state, and constantly threaten to establish religion. Which is just what their advocates want from them.

This is a nation with a constitution which not only protects religious people from the others, it also protects the others from the religious. What that should mean is that when the others want to exercise their right to self-government, and decide the self-government they want is a secular government, they ought to be able to do that, so long as they do not purposefully invade religious practice.

RFRAs are intended to frustrate that ambition for secular self-government, by using religion as a check on what secular laws can be enforced, and who they can be enforced against. I think the notion that RFRAs cover any and every ambition a religious person asserts as a matter of conscience, ought to be unconstitutional. Until I see a systematic way to put a boundary around RFRAs, I oppose them in their present form.

[Commenter_XY]

lathrop, you wield government like some kind of God. Forget it.

There is a reason religion is specifically protected in 1A. From Progs like you.

[Dilan Esper]

I'm a "Prog" (indeed, farther left than Lathrop), and I think his views of government are crazy, dangerous, and racist.

Thankfully, they are also not the law. Article III of the Constitution does not entrust the judicial power in Stephen Lathrop, and thank our lucky stars for that.

[Stephen Lathrop]

Ad hominem all you want Esper. Readers can judge by the quality of your argument.

Racist?

There you will need a quote from me, and an explanation to show how my quote advocates racism. Take your time, and please don't exclude my anti-racist posts, which I suggest are as pointed as any on this blog.

When you make a charge like that, you ought to be forthright. Readers will judge by that, too.

[David Nieporent]

When you make a charge like that, you ought to be forthright. Readers will judge by that, too.

Dude, you argued that Scott Brown was racist because white people supported him.

[Stephen Lathrop]

Good memory, Nieporent. I did argue that, sort of—but you aren't describing the argument forthrightly. I tried to show circumstantially that Brown designed a campaign to appeal to white flight voters west of Boston. That is what made it a racist campaign, whether or not Brown himself was bigoted—a question I doubt I ventured to answer.

Are you speaking in vague generalities because you went searching for a racist quote from me, and came up empty?

[Dilan Esper]

I am arguing that no rights are absolute.

That's banal (and thus typical of you). RFRA's (which I don't like, by the way, but which are the law of Kansas) say exactly what the limit on such rights are. It's not absolute, but it requires exemptions except in the narrowest of circumstances.

Also, the right to self-government is as much a right as the others.

There is no "right to self government". Indeed, one of the main reasons we need a government is to prevent us from doing great harm to the community and our fellow humans by attempting to do whatever we want and govern ourselves.

[David Nieporent]

The Bill of Rights constrains the right to self-government.

No. The Bill of Rights protects the right to self-government, against majority rule. That's the fundamental error in your political philosophy: the failure to understand the distinction between majority rule and self-government. Majority rule denies self-government to the minority.

Of course, that error in your thinking isn't even consistent:

Which brings us to the RFRAs.

RFRAs are laws passed by majorities. You can't sing a paean to majority rule and then at the same time act all outraged that a law passed by a majority is being employed.

RFRAs keep government away from religion; they do not "establish" religions.

[Brett Bellmore]

" The Bill of Rights constrains the right to self-government. "

No, the Bill of Rights preserves the right to self-government. What it constrains is each other government.

"Self-government" is when you govern yourself. The idea that democracy is "self" government is insane. Literally so.

[Stephen Lathrop]

Brett, do you suppose your comment sounds coherent to most people? Do you think yourself that your comment describes the everyday experience of government for you? Are you in fact ungoverned by others?

In fact, is it not so that personal self-government is merely what remains, after you have capriciously discarded from your thinking external government with regard to public affairs? I ask you what happens if you set ideology aside, and describe lived experience instead.

[Bored Lawyer]

"But once again, what evidence is there that the actions and effects of those alleged analogies are either relevant to, or comparable to, what happens at religious gatherings."

See my prior comments above and below. There is no rational reason why 100 people gathering in a restaurant to eat is any less a problem then 100 people gathering in a church to pray. Which is why many states banned both. But if you allow one, you better have a very good reason why you don't allow the other.

[Stephen Lathrop]

There is no rational reason why 100 people gathering in a restaurant to eat is any less a problem then 100 people gathering in a church to pray.

My experience of religious gatherings has been that they are notably more tightly packed than the restaurants I frequent. And also that there is more variance in packing among restaurants, and less variance among religious gatherings—which typically take place in settings designed to encourage tight packing. Also, at religious gatherings, people are often encouraged, while tightly packed, to sing out, and perhaps to emit virus with their vocal utterances.

Of course your experience may be different, and we may disagree. What I ask from you, whether you agree or not, is whether what I describe might pass muster as a rational objection to religious gatherings during a pandemic? Or do you find my description of circumstances during religious gatherings generally outlandish?

[David Nieporent]

Why are they genuine analogues?

I know you've issued a fatwa against analogies in the past, mostly because you don't know how they work, but this isn't an analogy at all. A gathering is not analogous to a gathering; it is a gathering.

Without an explanation of that in detail, it seems like the court is just asserting arbitrary authority in the name of denying arbitrary authority to the legislature.

Because you're not a lawyer. The court is not "asserting" anything; rather, the legislature expressly gave that authority to this court. And again: this is not a legislative action being challenged; it's an executive one.

[y81]

The people, through their elected representatives, have come to a different conclusion about what it important to them. Do you have a problem with your fellow citizens exercising their right to collective self-governance?

[Martinned]

I do when it amounts to a violation of the Establishment Clause by giving belief preferential treatment over non-belief.

[Dilan Esper]

The Free Exercise Clause, in a certain sense, requires giving belief preferential treatment over nonbelief. If the government prohibits me from wearing a skullcap that I wear because I think it's cute, I have no claim. If the same government prohibits me from wearing it when I wear it pursuant to a religious belief, I have a claim.

I favor a strong Establishment Clause. But even the strongest Establishment Clause cannot be interpreted as saying belief never gets preferential treatment.

[Brett Bellmore]

I personally think that individual choices should be respected to the point where you shouldn't NEED a free exercise clause, because for anything it would make sense to permit from religious motives would be permitted regardless of motives. The need for a free exercise clause is an indication of how unfree we are.

But we do have a free exercise clause, and it does give religion preferential status.

[David Nieporent]

That's not what the Establishment Clause says, though.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The primary purpose of the Bill of Rights is to protect minorities from majority rule.

[Martinned]

Yes, that's why I brought up the establishment clause.

[Dr. Ed]

"The 26 other entities were deemed critical. A church, mosque, temple, etc is not."

This is EXACTLY why the "establishment clause" was insisted on.

Each state had its own established religion, and was terrified that the new Federal Government would attempt to impose it on them, as the British had attempted to do in Boston (e.g. King's Chapel).
New England was various variants of Puritanism, Pennsylvania was Quaker, Maryland was Catholic, Virginia "Fallen Anglican" (had been Anglican but "the churches stood open (abandoned)").

John Adams' father-in-law was a minister who never felt that a lawyer was quite good enough for his little girl, he wanted her to marry a minister (the top of that social order). The two big states (MA & VA) were afraid of each other, and everyone else was afraid of both of them.

Your statement is EXACTLY what they were afraid of.

[Bob from Ohio]

"deemed critical"

Or they were deemed so, must be true.

"magic sky wizard"

Bigot.

[Dr. Ed]

First Amendment notwithstanding (and 14th didn't exist), Massachusetts had an established religion until 1855. Initially called the Puritan Church, it became known as the Congregational Church. Resident's property tax dollars went to support upkeep on the town's church and to pay the minister's salary (he was the highest paid and sometimes the only paid municipal employee.) There was also the "firewood allotment" -- the amount of wood that the men of the town had to cut, split, and provide for him to heat both the church and parsonage (his house) -- and that was often highly debated at town meetings, Which were held in the church.

To become a town in Massachusetts, i.e. to be "set off" from another town, one had to show the legislature that you (a) had the tax base to support a minister and his family, and (b) had one willing to move out to your new town. That's why the "First Parish", "Second Parish" (etc.) designations you will find both in historical references and in the names of many Congregational Churches today -- the "Second Parish" was a neighborhood which was trying to become its own town (at which point its church became the "First Parish" of its own town.

This is the "Salem Town" and "Salem Village" references you see in the 1692 Salem Witch Trials -- "Salem Village" was trying to separate from Salem and the minister didn't want them to, for obvious reasons -- today it is the Town of Danvers.

THIS IS WHAT AN "ESTABLISHED CHURCH" IS.....

[Martinned]

No, that is what an established church was in 1789.

[Bob from Ohio]

No, that is what an established church has always been. Even left wing wikipedia agrees with him.

Its only American judges that somehow think modest encouragement or even recognition is an establishment.

[Martinned]

It is emphatically the province and duty of the Judicial Department to say what the law is.

[Josh R]

In Cutter v. Wilkinson, a unanimous Court held (in an opinion written by Justice Ginsburg) that the Religious Land Use and Institutionalized Persons Act (a close cousin to RFRA) was constitutional, at least as applied to "alleviat[ing] exceptional government-created burdens on private religious exercise" where "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries." It seems to me clear that the restrictions are a government-created burden. I am not sure what the law is on how courts must take adequate account of the burdens on nonbeneficiaries.

[Brett Bellmore]

"Likewise, battery is a crime—but it has exceptions, including for necessary defense of person, necessary defense of property, performing a lawful arrest, and more. I take it we'd agree that the government shouldn't allow me to punch you as retaliation for your blasphemy; but that means that it treats a secular motivation (protecting my property) as more important than a religious motivation (protecting God against insults, if that's how I conceptualize blasphemy)."

I think the general problem with this is that the reasoning is obviously applicable to malum in see laws; If an act is wrong, in and of itself, there's no reason to permit it out of religious motivations. We don't have to tolerate the New Thugee Cult going around strangling (unwilling) people.

But malum in see laws are a rapidly declining percentage of the law. And it's not obvious how this reasoning applies to malum prohibitum laws; It's not an accident that your example involves punching someone.

It isn't. But Smith isn't consistent with the 1st amendment, so that's not shocking.

[bernard11]

the Free Exercise Clause required religious exemptions from a no-beards policy for police officers, because the department provides an exemption for officers who had medical reasons not to grow a beard:

Shouldn't that say "medical reasons to grow a beard:"

[MatthewSlyfield]

I had the same thought. Why would people with medical reasons to stay clean shaven need an exemption from a no beards policy?

[gormadoc]

I'm sure it was originally "not to shave;" I'm aware of health reasons some people (mostly black men) shouldn't shave but none that would require a beard.

[Stephen Lathrop]

When I worked as a steel fabricator, I had to grow a beard for health reasons. If I didn't, then like all the other clean-shaven workers, I became eligible for gas mask jobs. Those were always health risks. So I grew the beard. Still have it 40 years later, and still don't do gas mask jobs.

[Dilan Esper]

And now you work as a Law Fabricator!

[Eugene Volokh]

Whoops, sorry, fixed -- thanks!

[Dr. Ed]

"Because no Kansan should be threatened with fine or imprisonment, arrested, or prosecuted for performing or attending church or other religious services (which even during the current state of disaster emergency remain an "essential function" recognized by EO 20-16), law enforcement officers are advised to encourage cooperative compliance with the new provisions of EO 20-18 and to avoid engaging in criminal enforcement of its limitations on religious facilities, services or activities."

Writ large, this may be what concerns Barr -- and is it an "under color of law" violation if the threat is used to compel "voluntary" compliance. I'd argue it is, and consider this possibility:

A racist mayor decides to have a "White Only" swimming pool, and encourages "voluntary" compliance with it. Has a bunch of cops standing at the gate doing that, announces that there are criminal penalties and that any Blacks attending are subject to arrest and incarceration, but encourages officers to exercise restraint. Maybe they announce that they will be taking down license plate numbers for "future action" (as was done with one of the church congregations), maybe put up big "White only" signs.

Does anyone honestly think that would pass muster?

After all., back in the 2000 Florida election, violations of the Voting Rights Act were alleged by having uniformed cops in the polling places -- even though they were officers themselves voting during their lunch or coffee breaks (and carrying a radio as required by protocol).

So I'd argue color of law, and I'd argue it here as well -- and that may well be where Barr is going with this.

[Eddy]

I suspect there's a reason that some courts have been narrowly construing the concept of "generally applicable laws" - it could be because they're uncomfortable with the Smith decision and want to limit the damage to religious freedom it caused.

The rhetorical trope of "laws everyone else has to obey" doesn't match the reality that laws tend to have exemptions - even if there aren't religious exemptions there are bound to be secular exemptions.

So in most cases the issue isn't whether "these religious nuts should obey the same laws as everyone else," but whether they should get an exemption (whole or partial) to go along with all the secular exemptions.

[SimonP]

Given the number of categories of exceptions available under the EO, it is also hard for me to see how the EO's application to religious organizations can be consistent with the RFRA standard here.

The more challenging question, for me, is - suppose that the EO were more narrowly crafted to permit only "truly" essential businesses to continue to operate. Is there any way to set the standard in a way that would satisfy the RFRA? It seems to me that, unlike a distinction between large and small employers (say), or medical vs. non-medical exceptions, or other exceptions that do not swallow the rule from an RFRA perspective, the "essential"/"non-essential" distinction is always going to require a kind of fact-based assessment that religious organizations will always be able to point to as potentially and unnecessarily discriminatory against them. In other words, I don't know how you can craft a "no large gathering" EO with exceptions for "essential businesses with social distancing" without giving plaintiffs (and the courts) a hook for finding some conceivable "narrower" restriction that carries the day in an RFRA analysis. I mean, the court here is citing a red-zone/green-zone approach that - while sound as a matter of policy - is completely unworkable presently, given testing capacity.

[Longtobefree]

Just for the record; staying six feet apart is NOT social in any way shape or form.
It is 'anti-social distancing' at best, more accurately physical distancing.
Goebbels would be so proud.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

flammable

inflammable

enflammable

tomato

tomato

potato

potato

[Josh R]

I agree that secular exemptions should not prima facie establish that a law is not generally applicable as demonstrated by Eugene's examples. On the other hand, my original impression of this order was the exemptions did establish it was not generally applicable, although I am having trouble trying to figure out why I feel that way.

I guess it's because I can't think of any reason why you would exempt bars and restaurants, but not churches other than targeting religious practice. Perhaps having a reason, not motivated by religion, justifies a secular-only exemption? And perhaps the burden on the state for that reason is merely a rational basis? Or is the burden higher?

My questions for Eugene are 1) what is the established precedent for when a secular exemption moves from acceptable to targeting religion (e.g., is Fraternal Order of Police v. City of Newark binding precedent in the Third Circuit) and 2) what do you think the law should be.

[Stephen Lathrop]

I guess it’s because I can’t think of any reason why you would exempt bars and restaurants, but not churches other than targeting religious practice.

How about an established record of Covid-19 spread caused by religious gatherings, but no such record for bars and restaurants? Not saying that is so, but if it is so, what's wrong with that as a basis for policy?

Could there be a disease problem if people get together in large groups to sing? Do little droplets come out when singers open wide? Do choir members stand 6 feet apart? If any of that is relevant, is it the state's job, before it can have an emergency policy, to monitor every religious gathering to prove what unsafe practices are happening at that time and place?

[Bob from Ohio]

"state’s job, before it can have an emergency policy, to monitor every religious gathering "

You would have made a great Chekist or Gestapo agent.

[Toranth]

Oh? Can you please provide me with the source you used to determine that there were no cases transmitted at bars or restaurants?

Despite looking, I cannot find any source that lists how each case of COVID discovered was transmitted. I found some news articles that make presumptions, such as mention funerals or churches - or bars, restaurants, and offices - but not one that declared with certainty where the transmission occurred.

[Josh R]

How about an established record of Covid-19 spread caused by religious gatherings, but no such record for bars and restaurants?

In theory, sure. Did the Kansas governor provide such a record?

[Absaroka]

"In theory, sure."

Before I went for that, I'd like to hear a biological theory why sitting in pews is more conducive to becoming infected[1] than setting at a crowded bar. Or why sitting in cars spaced 6 ft apart listening to a sermon is more dangerous than sitting in cars 3 ft apart at the Sonic drive in down the street.

[1]Mea maxima culpa! Per the WHO, I meant to say 'acquiring the disease'.

[Don Nico]

Agreed. And why exempt shopping malls, except that your brother-in-law has a big financial interest in one?

The exemption for schools is doubly laughable because we all know that kids are highly efficient disease vectors

[Eddy]

In most states, they could just hold their sunrise services in a liquor store and the cops wouldn't interfere because the liquor store would be considered essential.

[Eddy]

"Likewise, battery is a crime—but it has exceptions" etc.

OK, but I don't think the country needed the *Smith* decision to be able to punish religiously-motivated battery. Even under the more freedom-friendly standard, courts would draw the line at battery - they would say that punishing battery was a compelling governmental interest, and that there was no legitimate "narrowly tailored" way of punishing religiously-motivated violence short of prosecution and punishment.

In short, neither of the competing First Amendment standards would protect the perpetrators of religiously-motivated violence.

[Rev. Arthur L. Kirkland]

Grocery stores and restaurants (takeout and delivery) are essential because food is essential. (A point that appeared to escape the apprehension of a green, unqualified federal judge from Kentucky: Beer is food.)

Hospitals and pandemic-related medical research facilities are essential. A substantial amount of manufacturing is essential. Some retail is essential. Fuel sales are essential. Some transportation is essential. Utilities are essential.

Religious gatherings in general and Easter in particular are not essential, not in any reasoned manner. (Any god who would wish to have people risk illness or death to themselves or others so that those people could pay tribute would be a paltry, unworthy being.)

A line that distinguishes the essential from the non-essential is an obvious point during a pandemic, at least to competent, reasoning adults.

Clingers seem to tend to disagree, for reasons ranging from seflishness to superstition and belligerent ignorance to disaffectedness. Overcoming the stale thinking of people dumb and deluded enough to congregate during a pandemic is part of the reason steady American progress against their preferences has been so important during my lifetime.

[Don Nico]

So-called Rev. Clinger. And the excuse for bars is really the necessity to eat? And why shopping malls, and why schools.
Those 'ememptions' belie the governor's claims of non-discriminatory intent.

[Rev. Arthur L. Kirkland]

My sense is that hospitality businesses are authorized to provide food for takeout (curbside, ideally) and by delivery. Many bars provide food; in some states, provision of food is a condition to liquor licensure.

Which schools are authorized to enable students to congregate? Everything I have observed involves closure for in-person operation.

[Dr. Ed]

To a religious person, worship is more important than food.

[Martinned]

I very much doubt that.

[Rev. Arthur L. Kirkland]

That's about as believable as 'religious people oppose adultery' or 'religious people oppose bigotry.'

[Paul Elliott]

Does U.S. vs Ballard prevent a balancing test? 'But He answered and said, “It is written, ‘Man shall not live by bread alone, but by every word that proceeds from the mouth of God.’ ”' This can be interpreted as saying that religious activities are more important than any secular purpose, including those necessary for life. U.S. vs Ballard prevents the courts from deciding this religious question to the contrary. Indeed, the courts are not even allowed to think about this question. So how is the court going to be able to conclude that any secular exception, was more essential than the religions activity? Somebody please explain this. Why are defendant attorneys not including this argument in their briefs?

[Bored Lawyer]

Not sure that argument flies. Secular courts are barred from determining religious questions.
But the issue here would be a secular one -- what is an "essential" business and what is not. Most of the categories have nothing to do with religion -- that a grocery store is essential but a movie theater isn't, is a matter of secular judgment.
So then the question is, whether attending a public, religious service is "essential." As I understand it, most states (not Kansas) interpret that to mean something that either you need to survive (food), or that society needs to deal with the crisis (hospitals, medical supplies).

[Paul Elliott]

"Not sure that argument flies. Secular courts are barred from determining religious questions.
But the issue here would be a secular one — what is an “essential” business and what is not. Most of the categories have nothing to do with religion — that a grocery store is essential but a movie theater isn’t, is a matter of secular judgment."

The above is proof by bare assertion. The question as to weather religious activity is more important, has arisen first in a religious context long before the current crisis or even before the U.S. or the state of Kansas, in the aforementioned Mathew quote. It arose in a religious context. Therefore, the question is a religious question. It may also be a secular question. But where does U.S. vs Ballard make exception for religious questions that are also secular questions? You are breathing your own exhaust fumes, assuming what feels good to secular sensibilities must be correct.

[Bored Lawyer]

Grocery stores and restaurants (takeout and delivery) are essential because food is essential. (A point that appeared to escape the apprehension of a green, unqualified federal judge from Kentucky: Beer is food.)

You should review your own comprehension of what occurred in Kansas. The exemptions were not limited to takeout arrangements, they included restaurants and bars. The Executive Order expressly allowed restaurants and bars to operate, meaning with patrons entering and sitting, so long as they preserved social distancing of at least 6-feet between tables and bar stools, and did not allow self-service of food (e.g., salad bars).

There is no rational, scientific reason to allow a restaurant or bar to operate under such conditions, but not a church or other house of worship. Both involve gatherings of people in a closed room or rooms, and both could involve social distancing of 6 feet or more. (Churches presumably don't have salad bars and the like).

Many states have in fact banned gatherings in restaurants and bars, allowing only takeout. The Governor of Kansas and her advisors don't think that is necessary in her state. Having allowed that, there is no reason churches should not be allowed to operate under the same conditions.

[Rev. Arthur L. Kirkland]

"You should review your own comprehension of what occurred in Kansas. The exemptions were not limited to takeout arrangements, they included restaurants and bars. The Executive Order expressly allowed restaurants and bars to operate, meaning with patrons entering and sitting, so long as they preserved social distancing of at least 6-feet between tables and bar stools, and did not allow self-service of food (e.g., salad bars)."

I perceive no good reason to treat hospitality venues differently from churches with respect to on-premise activities; the role of food as an essential item is not relevant, in my judgment, to the question of whether a hospitality business should be enabling anyone to congregate.

If that is the Kansas position, Kansas -- a state I hold in relatively low regard -- does not disappoint with respect to pandemic management.

[Rev. Arthur L. Kirkland]

"If people are allowed to go to bars, restaurants, libraries, schools, "

Do those exemptions to stay-at-home orders exist in any jurisdictions other than a few can't-keep-up backwaters with Republican governors?

Most governors, and all advanced states, seem inclined toward rules that limit travel to essential destinations and to that limit restaurant patronage to takeout, curbside, and/or delivery service. Where in modern, advanced America are citizens congregating at schools or libraries?

[Bored Lawyer]

I know you don't let facts get in the way of your knee-jerk statements, but for the record, the Governor of Kansas, Laura Kelly, is a Democrat.

[David Nieporent]

He's a troll. I don't know why Prof. Volokh doesn't do what Kirkland falsely pretends Volokh did, and ban him. His only goal is to hijack discussions to be about himself.

[Rev. Arthur L. Kirkland]

Artie Ray was banned. For making fun of conservatives. I also was censored, with respect to particular (non-obscene) words that conservatives do not like. More than once.

The charitable analysis of your falsehood is that you don't know what you are talking about. I'll be charitable.

[Ken Arromdee]

I just looked it up. The governor of Kansas is a Democrat. Your description of Kansas as a backwater with a Republican governor was the falsehood.

[David Nieporent]

Given that you have spent the last fifteen years here making fun of conservatives without being banned, Occam suggests that you're lying about being banned for that before.

[Milhouse]

Yes, Kansas.

[Doug Huffman]

I pray y’all lawyers have a field day slapping down petty tyrants and their emergency-constitutions, that they may never rise again.

Good people ought to be armed as they will, with wits and guns and the truth. The conspiracy of ignorance masquerades as common sense.

[Rev. Arthur L. Kirkland]

"The conspiracy of ignorance masquerades as common sense."

I thought you liked the Volokh Conspiracy.