Another Way to Think About South Bay: Why Allow Protest, But Not Prayer?

Mayors and Governors admit they think prayer simply isn't as important.

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Earlier today, I blogged about Corona-cases that were mooted while Supreme Court review was pending. Towards the end of the post, I offered another way to think about South Bay United Pentecostal Church. (I wrote about that case here and here).

First, the Court approached that case with the wrong frame. 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.

Second, I drew a comparison between how governors have treated religious gatherings and how they have treated recent demonstrations. I wrote:

Governors labelled a constitutionally enumerated right, which was subject to the whims of an eleventh-hour change, as non-essential. They did not think prayer was life-sustaining or soul-sustaining. Do it on Zoom! But we know they labelled demonstrations as essential. That cannot be done on Zoom! They also labelled mundane commercial activities, which were open from day-one, as essential, even where the risk of spread was high.

New York Mayor Bill De Blasio articulated this perspective with candor. Reuvain Borchardt from the Jewish newspaper Hamodia asked De Blasio about this disparate treatment:

"The retail store owners have been closed for two months… People from attending houses of worship, our regular part of life, have been banned from doing so with more than 10 people. Now you've expressed solidarity with this particular protest cause, is that why it's been given dispensation to disregard epidemic guidelines?" Borchardt asked. "Are we in a pandemic or not? And do we have one set of rules for protesters and another for everyone else?"

De Blasio admitted there was disparate treatment:

"When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I'm sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services. This is something that's not about which side of the spectrum you're on. It's about a deep, deep American crisis… Sorry guys, there's a world outside New York City. So we're dealing with this."

I think De Blasio's statements make the case for viewpoint discrimination under the Free Speech Clause. But I also think his position undermines any pretense of neutrality with respect to the Free Exercise Clause.  When Jewish people gathered to celebrate a funeral, NYPD broke up the assembly, and the Mayor publicly criticized those groups. The risk of public gatherings is real

Robby Soave offers this commentary:

As a reminder, here was what de Blasio had to say to New Yorkers who had gathered to mourn a Hasidic rabbi last month: "My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period."

This is not just hypocritical—it's odious. Protesting against police violence is extremely important, and the unprecedented public outcry over Floyd's death is a critical opportunity to send a message that reforms are needed. But to say that this cause, and only this cause, should be exempt from the lockdown is, at the very least, remarkably callous. Mourning a deceased person is no less important to that person's loved ones than ending police brutality is for the thousands of people engaged in protest. (This should be doubly obvious, since in both cases we are talking about a person's death as the root issue.)

The Governor of New Jersey offered a similar criticism:

"I don't want to make light of this, and I'll probably get lit up by everyone who owns a nail salon in the state," Murphy said during his coronavirus briefing in Trenton on Monday. "But it's one thing to protest what day nail salons are opening, and it's another to come out in peaceful protest, overwhelmingly, about somebody who was murdered right before our eyes."

New Jersey currently limits gatherings to 25 people in outdoor settings and 10 people indoors. Organizers of protests calling for reopening have been charged in recent weeks with violating Murphy's executive orders.

"I put those into different orbits," said Murphy, a Democrat who has said Floyd's death "highlights systemic racism and the stain that slavery still leaves in our country today."

This double-standard demonstrates hostility towards religion, at a far greater level than the errant comments in Masterpiece Cakeshop. The Free Exercise of religion simply isn't as important to these governors and mayors. And that fact ought to move the case from Smith's rational basis test to Lukumi's strict scrutiny.

 

NEXT: Mooting Corona Cases Before They Reach the Supreme Court

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  1. h/t to another commenter, but here’s a thing from the Babylon Bee:

      1. I just read it. Hilarious. Maybe we need to try that in NJ.

  2. Of course this is based in bigotry a lot of which comes out of sheer ignorance. That doesn’t surprise me in the least. Your run of the mill liberal thinks that religion is stupid or just something that should be done at their convenience.

    Keep in mind these “enlightened” liberals are giving every white person a finger wagering lecture right now about how they don’t know what it is like to be black. For some reason we are supposed to listen to that morality lesson, but religious people are just told to sit down and shut up.

    1. Yes. So?

      And when thou prayest, thou shalt not be as the hypocrites are: for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men. Verily I say unto you, They have their reward.

      But thou, when thou prayest, enter into thy closet, and when thou hast shut thy door, pray to thy Father which is in secret; and thy Father which seeth in secret shall reward thee openly.

      1. “The devil can cite Scripture for his purpose.”

          1. Yes, Trump was much worse than the rioters who tried to burn the church down.

            1. There’s no evidence any such thing happened. While there were significant fires set by rioters in many places, this was a small fire in the basement of the church quickly put out. The notion that rioters tried to burn the church down is propaganda.

              1. “small fire in the basement of the church”

                That’s “evidence”, no?

              2. Just because they set a fire in the basement of the church doesn’t mean they tried to burn down the entire church….

                Right…..

              3. David, DO YOU HAVE ANY IDEA HOW DIFFICULT IT IS TO FIGHT FIRES IN CHURCHES?!?!?!

                Once it gets going — and this one didn’t — all you really can do is hose down adjacent buildings so that it doesn’t spread to them.

                Maybe you’ve never been a firefighter, but I have — and fires are like gunshots, you never know how bad it is going to be.

            2. Trump was much worse than the rioters who tried to burn the church down.

              Nice to see us agreeing for once! Great that you’re coming around to the world of sanity!

              1. It was the USSS that wanted the park cleared — for *their* safety.
                Because *they* wanted a defensible perimeter, and I somehow doubt that Trump walking over to the church was their idea.

      2. That’s very nice for Christians. Now what about the rest of us? And maybe some Christians don’t think that applies any more, just like kashrus doesn’t apply. In any case courts aren’t allowed to inquire into the validity of someone’s religious belief, but only the sincerity. So long as someone sincerely believes something it doesn’t matter if it seems to you to contradict what he says is his bible.

    2. Funny thing that. I call myself areligious: I just don’t care one way or the other. When the Bible thumpers come around to my door, I just say No and close the door. Don’t argue with them, don’t try to be polite.

      I really do not understand the motivation behind minding other people’s business. While in the navy, I met two Mormon missionaries in Japan, and it astounded me how little their church had prepared them for a year in Japan. They knew so little of the language that they could only try to convert English speakers. They knew nothing of the customs: they didn’t understand that many, probably most, Japanese believe in Buddhism and Shinto, and that Confucianism is arguably not a religion, and that a surprising number of Japanese will take a Bible and a cross just to be on the safe side — the more gods, the merrier.

      And it makes no difference to me, other than being an interesting factoid. Yet these two were pissed that one of their “converts” still went to temples and shrines. Why did they think it was any of their business? Why did they think it mattered to them?

      I do not understand busybodies, whether religious or whatever. I especially do not understand busybodies i power who think it is their life’s mission to knock other people’s beliefs when those beliefs make no difference in their lives.

      1. it astounded me how little their church had prepared them for a year in Japan

        Here you are generalizing from anecdotal evidence, and guilty of the exact behavior being castigated in the article. Did it ever occur to you that the missionaries who proselytize to English speakers in Japan are the ones that just arrived and still learning the language and customs or else that are struggling the most? I know returned missionaries to Japan (and missionaries from Japan) and to a man, they all came back with a profound respect for the culture and at least 2 shared with me your exact observation about Shinto and about the psychology of Japanese politeness.

        Commenting on a large disparate group based on your experience with 2 members is not particularly enlightening.

        1. The Mormon church is an organized group. That they actively sent anyone with such ill preparation is evidence of poor quality control, at the very least.

        2. If you can;t distinguish my anecdote from institutional bias, you have some tremendous bias of your own.

          The Mormon church bears responsibility for their unprepared missionaries. It is ludicrous to expect a missionary, whose sole responsibility is interacting with ordinary people, to be of any use when they haven’t the foggiest idea of the language or culture.

          No business would ever do anything so stupid. They would expect the interaction to be with specific business partners who speak English, and if they knew that was not happening, they would arrange interpreters.

  3. Prayer has solitary modalities.

    Protest does not.

    I don’t see the DeBlasio quote as admitting disparate treatment.
    If you find it constitutionally problematic for a politician to take a position about two factions, I’ve got bad news about our executive.

    This double-standard demonstrates hostility towards religion, at a far greater level than the errant comments in Masterpiece Cakeshop
    Animus needs quite a bit more proof than you’re offering. As I’m sure you know.

    1. “Protest does not.”

      Every protest could have been done on line.

      By the way, Jewish prayer requires 10 men [women in some branches]. Its not solitary.

      1. Plenty of temples have found workarounds, Bob. The Jews have countless examples of their sill at making reasonable accommodations and not making their faith a suicide pact.

        How effective would an online protest be compared to what we’re seeing, even without the property damage?

        1. not making their faith a suicide pact

          Reductio ad absurdum much?

          COVID-19 rarely kills and it certainly doesn’t kill people who don’t have it.

          1. Sorry – I thought my ‘countless examples’ construction made it clear I was speaking much more broadly than just about COVID there.

        2. “How effective would an online protest be compared to what we’re seeing,”

          Equally. Street protests are generally useless. Early 60s civil rights ones but little afterwards. The 1968 race riots were counter effective.

          “even without the property damage?”

          Other than that how was the play Mrs. Lincoln?

        3. Sarcastr0….There was, and remains discrimination against the free exercise of religion in the state of NJ. A family member died in APRIL and I STILL cannot say Kaddish. Why? Because there is a real threat to anyone who attends shul. That is what we are told. Hell Sarcastr0, our governor forcibly shuts down ‘illegal gatherings’ at orthodox shuls. This is a damned travesty. You know that Orthodox halakah requires 10 people gathered together in-person to say Kaddish. Period. Zoom is not halakah in Orthodoxy. So we are stuck, Sarcastr0. We cannot ritually mourne our dead.

          OTOH, it is perfectly Ok to go loudly protest your ass off with very large groups of people. In fact, it is encouraged.

          What is happening here is wrong. Not a little wrong; but a LOT wrong.

          1. Commenter, that is still not the law; it was not the law the last time we spoke about it.

            Disparate impact does not matter in the are of Free Exercize.

            You can argue policy, but that’s not what the OP is doing.

            1. Sigh….I am profoundly pissed with the law right now. Because the application is so arbitrary.

              1. That is completely fair.

                Fury exists for a reason.
                Properly aligned, it is an agent for change. I’d suggest you channel in that direction.
                I may disagree with such a change of policy myself, but it’s hardly at the top of my bugaboo list.

                1. So we can’t pray but we can gather to protest our inability to pray. Cool. While we’re doing that, can we sneak in a prayer too? What if we say the prayer is merely a concrete demonstration of our protest at our inability to do so?

                2. PS personally it doesn’t affect me that much, because for the last two weeks I’ve been attending a synagogue that is defying the law, and has so far been getting away with it. I assume the police know about it and decided they have better things to do with their time, so long as the mayor doesn’t find out.

        4. There really is no workaround to the need for a minyan. And sure, the faith is not a suicide pact, which is why we did without proper prayers for 2 months. But whatever need people feel to protest now is also not a suicide pact, and if protesting is not suicide then neither can prayer be. Any risk that is reasonable for the purpose of a political protest must also be reasonable in order to be able to hold communal prayer, which Judaism says is the only kind that G-d listens to directly, whereas private prayer has to be conveyed to Him by angels.

    2. Your ignorance of Christianity is quite clear. Prayer IS NOT at all a solitude form of expression. Sure, sometimes it is, but the general belief in Christian circles is that if you want God to pay attention to your petition you need to get a whole lot of people to pray about it at one time. That includes mass gathering prayer events. And this belief isn’t just some fringe idea. It is core to most denominations of Christianity including Catholicism.

      1. “Prayer IS NOT at all a solitude form of expression.”

        Really? If that’s true, I’d really like to hear your reading of Matthew 6:5-8.

        1. Please, do give us your theological interpretation of Matthew 6:5-8 when you read just a bit further and we have Mathew 18:20.

          1. Non believers using isolated Bible verses think they are cute.

            1. People waiving bibles around think they are believers.

              1. I think that particular waving around of a bible was cute…do I circle the square on this one?

              2. Everyone knows Trump isn’t a believer, but he respects those of us who do. Or at least acts as if he respects us, which is good enough for government work.

      2. Dude, I know about Christianity. You don’t have a monopoly on all modalities of prayer.

        You’ve been shown to be a troll and a liar before, I wonder if you even go to church.

      3. That includes mass gathering prayer events.

        What do the Catholics call it when they take communion? Oh, yeah, MASS.

        All Christian faiths have some form of communion (mine calls it the Sacrament). It is an article of faith that we should gather for prayer on a regular basis.

    3. re: “Prayer has solitary modalities.” – Not necessarily true. On the contrary, the majority of modern religions focus strongly on concepts like the community of faith.

      re: “Protest does not.” – Also not true. Consider every person who’s ever written an angry letter to the editor or to their congressman.

      When you start from false premises, it is no great surprise that you reach false conclusions.

      1. Community of faith != prayer.

        Protest != letter writing campaigns; don’t be naiive.

        1. Man, you are really over-using ≠ lately. And what makes it more annoying is, you’re essentially always using it wrong.

          1. I’d say it’s more people making inapposite comparisons lately.

    4. “Animus needs quite a bit more proof than you’re offering.”

      If you need to find out what liberals like of Christians, just take an hour long cruise around Twitter when anything involving gay marriage is trending. That will give you a pretty good idea of the every day animosity faced by Christians.

      1. “That will give you a pretty good idea of the every day animosity faced by Christians.”

        Besides this being eye-rollingly un-self-aware, the germane evidence is not “animosity faced by Christians” on “Twitter”. It’s whether there’s evidence of the governmental entity enacting the regulations (here, governors through executive orders) exercised power in a non-neutral way based on “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.”

        I think the evidence Professor Blackman is relying on is pretty thin. But it has another problem. It’s using statements made after the enactment to prove the enactment was motivated by animus. I don’t think Church of Lukumi stated the law correctly, and I also think the Court was wrong to cite that minority position in Masterpiece Cakeshop. But conceding that’s the law now, Masterpiece involved an ongoing administrative dispute, and the purported animus/hostility predated the order that was on challenge at SCOTUS. That’s not what is happening here. The thing preventing religious people from marching was enacted before the allegedly animus-proving statements.

        1. If a white person was as dismissive as you are to the oppression of Christianity in the country about something like race you would just say they are a backwards redneck who doesn’t realize their white privilege. Sound about right?

          1. NToJ is talking about what the law is. You respond with an empty appeal to outrage and victimhood.

            Yeah, that sounds about right.

          2. No, it doesn’t sound about right. First, you’re engaged in category errors. Being a Christian (which is a choice) is not the same as being black (which is not a choice). Choices can be relevant grounds for moral disapproval. Inherited traits cannot. Ought implies can.

            Second, when have you ever seen me use the phrase “white privilege” disparagingly towards anybody else? I don’t use that vernacular. And I wouldn’t use it towards backwards rednecks anyway, since they’re the least likely to have enjoyed such privilege.

            Third, you’re not talking to some stranger to Christianity in America. I’m a Christian in America. My parents were Christians. I was baptized. I was later confirmed in a Christian church. I am, today, a member of a Christian church. I go to church, occasionally. Not once in my life has anyone discriminated against me because I’m a Christian. Never have I been pulled over for being a Christian. I’ve never been denied goods or services on account of being a Christian. Every level of government in my lifetime has been dominated by nominal Christians. There is no systematic attack on Christianity in the United States. That you pretend there is, leads me to one of two conclusions. Either (1) you’re engaged in crybaby grievance performance art (very much like the people you profess to hate). Or (2) you’re just neither an American nor a Christian, but are nonetheless trying to tell Noah about the flood.

    5. *Only select protests are OK.

      If you’re protesting the lockdown, that shouldn’t be allowed.

      1. Some opinions are so stupid that they’re no longer opinions, just delusions.

      2. The lockdown protests were allowed, chucklehead.

        1. They were even allowed to bring their AR-15s…

          1. The crowd wasn’t dispersed. A few arrests. Governor stating he approves their right to protest. What is it you think this link demonstrates, precisely?

    6. “Prayer has solitary modalities.

      “Protest does not.”

      What if you’re protesting the shuttering of churches?

      What if you’re a Protest-ant?

      1. Anyway, if God wanted protests to be out in public where you might spread disease, he wouldn’t have invented Twitter and hashtags.

        #BlackLivesMatter
        #NoJusticeNoPeace

    7. >Protest does not.

      Sure it does. For example, one of the most inspiring protests ever was (is?) the peace vigil outside the White House. I walked past it countless times; it was almost always 1 or 2 people manning the station.

      You just need to pick your symbolic speech appropriately.

      1. How is that working out at the moment?

    8. Some prayer may have solitary modalities. Not all does, and not all the time.

      More to the point, it’s NONE OF YOUR BUSINESS.

      Statist fucks like you pretend you impose the State on people for their own safety, when all you really are is control freaks who think you know what is best for everybody else.

      If safety truly was your goal, you wouldn’t pretend that your ignorance of prayer allows you to tell other people how to pray. You wouldn’t utter nonsense like protesting in crowded packs is OK when you approve of the protests, and praying in a church, even when following your asinine social distancing rules, is nonsense.

      Statists are hypocrites.

      1. You seem nice.

        Statists like you are into government using the military to clear protests.

        The policies discussed in the OP do not target religion in any legally cognizable way. You and Blackman haven’t proven that it does. So you skip straight to the outrage. Meh.

        Due to COVID the government is temporarily telling people how to eat, how to socialize, how to groom themselves. Prayer isn’t constitutionally special.

        Thanks for finding me in bad faith, BTW. And based on some counterfactual speculation. Because I did not say protesting without distancing is OK. I believe I said I understand but do not condone. Or did you forget that so you could indulge in your sweet sweet outrage?

        1. Statists like me? Other times, you accuse me of being an anarchist, which is a lot closer to the mark, even though you don’t really know me or what anarchism is.

          I had a pretty low opinion of your smarts. It has sunk to snake level now. Either you are that ignorant and arrogant and everyone to the right of Marx is a neocon militarist fascist fanboi, or you wasted that reply thinking I was somebody else.

          1. Yeah, you seem to defend every heavy-handed use of Government Trump indulges in.

            Sounds statist to me.

    9. The very nature of religion is that YOU have ZERO decision on how someone else worships. “Just pray alone and I’m going to quote a few verses that support my position”. That’s all well and good for argumentative sake. Say it to people personally, and they may agree with you. However, it is completely and utterly unacceptable for the government to make that choice for the religious.

      1. Sorry, the Constitution says differently.

        1. Oh, my. What did I miss? Is there something I missed between the “free exercise shall not be infringed” and “shall not establish a state religion”?

          It’s not exactly a complicated statement. It’s rather absolutist and is not difficult to interpret.

          1. You missed a bunch of Court cases. By the people we have chose to think about this. Who are not you.

            1. No, you are willfully misinterpreting my statement. The government does not get to chose how people worship. There are limits, based on whenever their church violates human rights. However, telling people that their religion says something and then enforcing that interpretation is very much not included

              1. ?? No on is saying what anyone’s faith is, only holding them to the same as any institution.

                But to argue prayer is being banned because someone’s faith only allows prayer a certain way is mistaking a tree for a forest.

  4. But whatever they might say about the importance of protesting, governors and mayors are in fact deploying police, guardsmen, etc. en masse to break up protests. Why is the relevant point of comparison their generalized statements about the need for people to speak out about racism rather than the boots actually on the ground? Even the mayors etc. who have most aggressively policed religious gatherings during the pandemic haven’t sent in the riot cops.

    1. Or, put another way, the emergency order says “all gatherings are illegal,” and the police response to the protests/riots/etc. is exactly what you’d expect if “all gatherings are illegal” means what it says.

    2. It’s my understanding that the police, national guard, etc. are there to stop looting, arson, et. al. Are the churches doing these things?

  5. No one took away the ability to pray or worship. Why do so called “conservatives” continue to lie about this?

    And note – every single one of my religious friends are doing just find at home. Those include Lutherans, Catholics (like my parents), Jews, etc. The people who whine about this are either orthodox or evangelicals. A group of people who a less than firm grasp of science. Act like a grownup and stay at home until things improve. And continue to pray and worship.

    1. “The people who whine about this are either orthodox or evangelicals.”

      Icky people alert.

      “Jews” are good except when they are “orthodox”, then they are icky.

    2. “Act like a grownup and stay at home until things improve.”

      The same could be easily said about looters who are, you know, actually breaking the law. For some reason though these protests are being praised and no journalist seems to be mentioning that these could turn into super spreader events. Wonder why….?

      1. 1) You’re lying. Lots of journalists have mentioned that.

        2) Unlike the I-want-to-get-a-haircut protesters, you’ll note that a significant portion of the anti-being-murdered-by-police protesters are wearing masks.

        1. “I-want-to-get-a-haircut protesters”

          Funny how you try to downplay the seriousness of small business owners losing their livelihood. Guess you can compare that to…

          “Time for me to get some reparations…” which no one in the media seems to be using to downplay the seriousness of those riots.

    3. Why does protesting in packs pass muster? They could all easily, and possibly more effectively, flooded government phone lines and email boxes and even snail mail boxes, Can you imagine how much attention they’d have gotten is millions of snail mail letters showed up and swamped everything else? If they’d made so many phone calls that the Internet slowed to a crawl?

      Protesters are not unique in wanting to get out of the lockdown. Self-isolation is not humane, literally.

      Your comment shows you think online protest is valid. Why is it not good enough for your compatriots?

      Fuck off, slaver.

    4. The people who whine about this are either orthodox or evangelicals.

      Would it be more unOrthodox or more unEvangelical to tell you to go fuck yourself?

      1. Masturbation is the only thing that is neither banned nor regulated nor taxed. This is your freedom. You are free to go fuck yourself.

  6. If only both God given rights were protected from the governments by the same amendment to the Constitution of the United States of America –

  7. De Basio’s police were shooing away Jewish children from playgrounds yesterday after multiple days of riots.

    Can’t protect iconic 5th avenue, can persecute Jews.

    1. De Basio turned into a full blown Achtung fascist overnight. Maybe persecuting Jews came with that transformation?

      1. Commies have a long anti-Jew record too.

    2. Yes, that is definitely a thing that happened.

        1. Sorry, I misread “shooing” as “shooting”. I wonder how that happened…

        2. P.S. the mind boggles that anyone would describe that video as “persecuting Jews”. That takes victim complex to a whole new level.

          1. Indeed, it had nothing to do with their being Jews, and everything to do with their being easy to order around and unlikely to riot, and so not needing to be treated with kid gloves.

  8. First, the Court approached that case with the wrong frame. It is a mistake to simply assess how “comparable” businesses are treated. […] The Free Exercise Clause should not turn on this sort of ad hoc balancing test.

    It doesn’t, and it wasn’t in South Bay. Roberts’ opinion only established that treating comparable activities equally was necessary to establish neutrality. He didn’t say it was sufficient. Plaintiffs are free to offer other reasons why the order is not neutral which may sway Roberts if the Court hears the merits of the case.

    1. The problem is, to do the necessary part i.e., to actually decide decide whether they are treating comparable activities equally, one needs to determine what’s a comparable activity and what isn’t. That’s a problematic step… particularly when we are talking about one of the few actually enumerated rights.

      1. It’s not a problematic step if you just skip it, and set out objective rules for the activities to try to comply with.

        If you find you have to list activities in the first place, you’ve probably already blown it in terms of treating them equally.

  9. I agree that de Blasio’s statements likely show that religious services aren’t being treated equally (and also gives the store owner who wants to protest a tenable viewpoint discrimination claim).

    On the other hand, it strikes me that Murphy’s statement shows only viewpoint discrimination against lockdown protesters, but not unequal treatment of religious exercise.

    1. Simple – hold a “social justice prayer service” as a “protest against the government choking the life out of religious observance.” If the cops protest against an indoor service, move the service outside to the roadway.

      1. Intentionally cloaking ordinary religious services as a protest is likely to get you in trouble in court.

        1. The Babylon Bee article, above, gives additional pointers.

        2. How so? The moment the police move in it becomes a real protest.

  10. I wish Blackman had used a translate website…I find it difficult to read the pronouncements De Blasio and Cuomo in the original German.

    1. I tried copying and pasting several of their comments into google translate. The only thing that came back every time was “ACHTUNG BABY!”

  11. So a California order fails under Lukumi because ….., a New York Mayor and New Jersey Governor recently made troubling statements? Can Blackman show his math? If Newsom made a similar statement, it would’ve been nice of Blackman to mention it when discussing whether Newsom’s order was fueled by discrimination against religion.

  12. Litigants would have a strong case in NY… if de Blasio were the one making the rules. But Cuomo, not de Blasio, is the one enacting these social distancing requirements. de Blasio can set NYPD enforcement priorities, but he can’t decide what’s allowed and what isn’t.

  13. I disagree with Professor Blackmun

    A riot is a different situation. It calls into play the unwritten caveat to the constitution, that the constitution is not a suicide pact.

    Civil disorder represents a breakdown in the rule of law. If the state can lawfully send troops in to restore order, it can also lawfully use other extra-legal methods of preserving the peace, including declining to enforce otherwise applicable rules.

    The handling of riots is sui generis. There is no law in a riot, of general applicability or otherwise. The same stern provisions of the constitution that let the state come down harshly in a riot, that allow martial law, that allow suspension of the writ of habeas corpus, also let it come down gently. In a riot, the state has some license to violate people’s rights. And this includes the rights of religious people.

    The idea that, if you do something to address a riot, you have have to do the same thing for religious people, turns the “the constitution is not a suicide pact” on its head.

    What next? If you use tanks to repel an invasion, you have to let religious people use tanks? I don’t see why leniency is any different, from a constitutional analysis point of view, from tanks. Both are tools a state can use to prevent a breakdown in peace and order from getting out of hand.

    I think Professor Blackman’s view leads to the logical conclusion that religious people ought to be allowed to use tanks if they can be used in other emergency contexts. Nuclear weapons? I think that illustrates as clearly as I can think of right now how absurd the position is.

    The constitution is not a suicide pact. A position that forces suicide because doing the appropriate thing for society as a whole to survive a true emergency is considered not fair to someone, is not a legitimate position. That’s what the compelling interest principle is all about.

    Yes. This passes strict scrutiny. It simply doesn’t matter if Lukumi is the standard. It passes it.

    1. In some respect, Professor Blackmun’s argument could be read as a brief for the other side, a reductio ad absurdum argument why an unlimited Free Exercise clause is completely unworkable.

      I support a strong free exercise clause, one with teeth. But I don’t support an unlimited or an unworkable one. I accept that the compelling interest framework and the traditional leeway for a state to deal with genuine emergencies addresses these issues. A church service simply is not the same threat to society as a riot. The difference in threat justifies a difference in treatment.

      1. the constitution is not a suicide pact.

        a reductio ad absurdum argument

        So, you understand what the fallacy is, but not when you are guilty of it. Hmmm.

    2. “The same stern provisions of the constitution that let the state come down harshly in a riot, that allow martial law, that allow suspension of the writ of habeas corpus, also let it come down gently.”

      OK, is it your position that martial law and suspension of habeas corpus would be legitimate in current circumstances? If they would be, why would softness toward the rioters be an acceptable alternative, if the riot if bad enough to warrant military trials and the suspension of civilian rule?

      1. To answer your first question, yes. There’s a body of judicial precedent upholding “looters will be shot on sight” type orders in riot situations. It could have been done.

        To answer your second question, I think you fail to understand the difference between what the constitution permits and what it requires. It is the business of courts only to lay out the boundaries of the permissable. Sternness and shooting on sight is permissable. So is lenience, conciliation, negotiation, and waiving enforcement of rules. It is for the political branches to decide which course is the best course to take in a given circumstance.

        So both strictness and softness are constitutionally permissible approaches. And their permissability is based on the same principle: an emergency permits extraordinary remedies not otherwise permissable. Just as the police can shoot rioters, they can also conciliate and waive rules with them. Just as shooting doesn’t violate the rioters’ rights in the circumstances, conciliation doesn’t violate the rights of outsiders who aren’t getting waivers and feel they aren’t getting treated fairly. Totally different policies. Yet the constitutional analysis and rationale,(compelling state interest) is the same. This is why, for constitutional analysis purposes, I am calling them similar. I recognize that they may be complete opposites philosophically and politically.

        1. That makes no sense. If you fear a breakdown in the rule of law then letting the rioters get away with it only exacerbates that breakdown; if you continue at the same time to enforce stricter laws on everyone else then it not only makes the breakdown permanent but makes the law contemptible in the eyes of all decent people, and something that should be broken down. If rioting gets you exempted from the law then let us all riot. If it takes setting fire to a police car to be allowed to open my business then surely that is what I should do.

  14. Except that Newsom’s distancing orders are not working. CA is entering a non-linear stage of viral contagion.

  15. Advocates for special privilege based on (certain) religion might wish to consider that America is becoming less religious, and the special treatment they push today could become special treatment they dislike relatively soon.

    1. Relatively soon, as in right now?

  16. ‘Another Way to Think About South Bay: Why Allow Protest, But Not Prayer?’

    There is a very good reason to allow protest including looting but not to allow prayer! If they don’t allow protesting including looting the situation will get worse, much worse. But if they don’t allow prayer there will not be any protesting, no rioting, no looting, no burning of buildings non of what they will get if they stop the protesting and looting!

    1. Where, exactly, are they “allowing” looting? If they’re allowing looting, why don’t the looters who want to pray just going down to whatever church they prefer and taking all the prayers they want? They could probably get military police and the park police to escort them all the way to the church to pose for photos with a Bible. No need to cower in the, sorry, I meant INSPECT the bunker in the basement all day.

  17. We have President Trump angry and threatening protesters in a way that only a man who knows for sure that other people will be doing all the fighting can do it.

    He says he’s the Law and Order President but didn’t even notice that Law and Order got cancelled.

    1. He’s a Very Special Victim.

    1. The government must permit that open-air prayer service. The Constitution isn’t a suicide pact.

  18. Of course to a professional politician, public expression on policy matters is what life is about. Business is next in priority because money is useful to politics. Religion is least important because it doesn’t affect anything; sports are equally unimportant except for the ones that make money.

  19. The fundamental purpose of protest is to force public officials to be aware of your opposition to some policy. The fundamental purpose of prayer is to speak to the divine. One can be accomplished in a home alone. The other cannot be done without intrusion into the public space.

    1. You think speaking to the Divine can be accomplished at home alone. 3300 years of Jewish law disagrees.

      1. He hears you, wherever you are when you speak to Him. He doesn’t necessarily do what you want.

  20. Same reason they forced gun stores to close while letting weed dispensaries stay open. They think getting stoned and having gay sex are the hallmarks of human freedom, while gun ownership is just not important.

    1. Not enough rampant members to be RestoreWesternHegemony, but certainly of his type.

    2. “gun ownership is just not important.”

      If gun ownership was so important to you, why didn’t you already have one?

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