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Judge Easterbrook admits what was implicit in Chief Justice Robert's South Bay Decision

"Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways."

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On May 29, 2020, the Supreme Court decided South Bay United Pentecostal Church v. Newsom. A majority of the Court declined to enjoin California's stay-at-home orders. Chief Justice Roberts wrote a concurring opinion that explained his view of the case. Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Gorusch. I wrote about that case here, here, here, and here.

Chief Justice Roberts concluded that houses of worship were "comparable" to other "secular gatherings" that are subject to restrictive guidelines. But houses of worship are "dissimilar" from "dissimilar" secular businesses.

Although California's guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

I criticized this "comparator" approach:

First, the Court approached that case with the wrong frame. It is a mistake to simply assess how "comparable" businesses are treated…. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring. . .  . 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.

Some of Roberts's comparators may be accurate. But there are other facilities that are very similar to houses of worship that are treated differently. At bottom, California did not think religion was "as important" as the exempted businesses.

This double-standard became patently obvious in the wake of recent protests. Officials like NYC Mayor DeBlasio expressly stated that the protests were far more important than prayer. This reasoning was implicit in Chief Justice Roberts's decision. Now, Judge Frank Easterbrook has stated it expressly.

On Tuesday, the Seventh Circuit decided Elim Romanian Pentecostal Church v. Prizker. (This case, which was previously appealed to the Supreme Court was quietly mooted out.) Judge Easterbrook wrote the majority opinion.

First, Easterbrook adopts Roberts's comparator approach:

So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons. Plaintiffs point us to two opinions of the Sixth Circuit plus two opinions dissenting from orders denying injunctions pending appeal. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020); South Bay United Pentecostal Church v. Newsom, 2020 U.S. App. LEXIS 16464 (9th Cir. May 22, 2020) (Collins, J., dissenting); South Bay United Pentecostal Church v. Newsom, No. 19A1044 (U.S. May 29, 2020) (Kavanaugh, J., joined by Thomas & Gorsuch, JJ., dissenting). Illinois relies on the majorities in South Bay United Pentecostal Church: the Ninth Circuit's panel did not provide much analysis when denying the motion for an injunction, nor did a majority of the Supreme Court, but Chief Justice Roberts filed a concurring opinion with these observations . . .

We line up with Chief Justice Roberts. It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.

Second, Easterbrook considers the church's alternate argument: houses of worship are similar to certain kinds of workplaces that are exempt. (Roberts simply ignored this backup argument):

The churches reply that people do remain together for extended periods in warehouses, and potentially in office settings (though most offices contain spaces that provide social distancing). It is not clear to us that warehouse workers engage in the sort of speech or singing that elevates the risk of transmitting the virus, or that they remain close to one another for extended periods, but some workplaces present both risks. Meatpacking plants and nursing homes come to mind, and they have been centers of COVID-19 outbreaks.

Easterbrook responds to this argument candidly:

But it is hard to see how food production, care for the elderly, or the distribution of vital goods through warehouses could be halted.

In short, producing food, caring for the elderly, and deliveries are more important than religious worship. The next paragraph states, with brutal honesty, why progressive governors have no problem with restricting religious services:

Reducing the rate of transmission would not be much use if people starved or could not get medicine. That's also why soup kitchens and housing for the homeless have been treated as essential. Those activities must be carried on in person, while concerts can be replaced by recorded music, movie-going by streaming video, and large in-person worship services by smaller gatherings, radio and TV worship services, drive-in worship services, and the Internet. Feeding the body requires teams of people to work together in physical spaces, but churches can feed the spirit in other ways.

"Churches can feed the spirit in other ways." What hubris! Houses of worship have been feeding the spirit long before the ink on our Constitution dried. For sure, some houses of worship have moved onto Zoom, some with alacrity, others with regret. But Easterbrook should not pretend for a moment these virtual services are sufficient to "feed the spirit."

I think Judge Easterbrook was responding to Judge Sutton, who reached the precise opposite conclusion:

The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

Religious worship is soul-sustaining. I am certain that Governor Pritzker, other Governors, and even some people of faith, would quietly agree with Easterbrook. DeBlasio stated it expressly. A pending case in New York state raises similar issues.

Recently, the Department of Justice filed a statement of interest in a challenge to Washington's shutdown orders. They articulated my position with clarity:

Because the COVID-19 Requirements are not generally applicable, strict scrutiny applies, and the Court need not reach the issue of whether they are neutral toward religion. The United States notes, however, that "[n]eutrality and general applicability are interrelated, and . . . failure to satisfy one requirement is a likely indication that the other has not been satisfied." Church of the Lukumi Babalu Aye, 508 U.S. at 531. The value judgment inherent in providing exemptions for secular activities like dine-in restaurants or taverns, which would seem to implicate the State's public health interests to a similar, if not greater degree, while not providing exemptions for Plaintiff's religious activities, tends to indicate that the State's actions may not be religion-neutral. See Fraternal Order of Police v. Newark, 170 F.3d 359, 365 (3rd Cir. 1999) (Alito, J.) ("[I]n Smith and Lukumi, it is clear . . . the Court's concern was the prospect of the government's deciding that secular motivations are more important than religious motivations"); id. at 366 (heightened scrutiny attaches when government "makes a value judgment in favor of secular motivations, but not religious motivations"). This is equally true for the value judgment inherent in approving protests without a numerical cap but requiring a cap for outdoor worship services. See ECF No. 13,7 (Washington Department of Health blog post entitled "Risking your health to fight racism (Thank you!)").

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

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

One final note on Judge Easterbrook. In Bostock, Justice Alito favorably cited Easterbrook's writings on textualism. But the Seventh Circuit stalwart voted in the Hively majority, and found that Title VII applied to sexual orientation and gender identity.

NEXT: My New Book "Free to Move" - And Why I Wrote it

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101 responses to “Judge Easterbrook admits what was implicit in Chief Justice Robert's South Bay Decision

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

    It seems to me that the governors are making the same value judgement as does Jewish law, as embodied in the principle of pikuach nefesh. To quote Rabbi Asher Lopatin:

    According to the Talmud, … we have a positive commandment to preserve life, even if it means violating other ritual or ethical commandments. As opposed to being a built-in exception to every commandment, this source tells us that saving lives is a positive commandment on its own.

    1. ccording to the Talmud, … we have a positive commandment to preserve life, even if it means violating other ritual or ethical commandments. As opposed to being a built-in exception to every commandment, this source tells us that saving lives is a positive commandment on its own.
      >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

      Except when it comes to rioting and burning down buildings!

      1. Can you cite to anybody positively endorsing rioting or burning down buildings?

          1. So that’s a no, you can’t?

            1. I gave you a link with plenty of endorsements. Do you want me to teach you how to read as well?

              1. You gave me nothing, I replied as if you gave me nothing, and you’re pretending to be surprised?

                1. I posted a link, where anyone can see many people supporting the riots, I don’t know what you expect to ‘win’ if this is some silly stunt to pretend it doesn’t count. If it actually doesn’t physically show up for you and others than blame Reason’s silly software and Sarcastro’s tech advice.

                  1. You posted a link which leads to nothing.
                    And you’re complaining that I pointed out you posted a link to nothing, and now you’re trying to blame other people because you posted a link to nothing.

    2. While basically all shuls shut down, it’s not black and white pikuach nefesh. Any legitimate pikuach nefesh calculation would take into account the chance of danger, but also the chance of danger of the alternatives (lockdown) and the detrimental affect to society from a lockdown, at the very least. All I’m saying is that a pikuach nefesh calculation is very complex; as is the governments calculation. In no way was any part of this covid thing simple.

    3. I don’t know about Jewish Law, but Governors clearly are making value judgements. Maine Governor Mills allowed Bath Iron Works, which make warships that KILL PEOPLE to remain open, while shutting down other things. Mass RINO Governor Baker permitted gun manufacturers to remain open while ordering gun sellers to be closed. Yea….

      The whole thing is arbitrary…

    4. No, they are not making the same value judgment at all. If the risk from the Wuhan Disease is truly life-threatening then Jewish law would ban everything except those things that people will literally die without.

      For instance grocery shopping could be replaced by food deliveries to people’s doors, with no choice provided; you eat what you get, no need to risk yourself and others by going to the supermarket and choosing what you want to eat and how much you want to spend on it.

      And news reporting is not at all essential to life, so it would have to shut down. So would the courts. Liquor stores. Warehouses of anything people won’t die without. Etc.

      Once you allow those exceptions you are either outside halacha, or you have admitted that this isn’t literally a life-or-death situation, which means it isn’t pikuach nefesh.

    5. Sorry, but this is simply a wrong interpretation of pikuach nefesh, and there are no two ways about this. This principle relies on an immediate and mortal danger to life. Example: I must willingly choose death in the face of compelled idolatry, murder of a human being, or interestingly enough – adultery. We do not have that immediate threat to life here, by any stretch of the imagination.

      Your interpretation of pikuach nefesh is completely wrong and specious.

      1. Commenter has brought me around…maybe a quarter of the way.

        To me, statements like this end the debate about what faith requires. Maybe there’s some inter-faith disputes, but it’s not up to me to determine what someone else’s religious requires of them. Faith can be idiosyncratic; my previous post about ‘prayer has solitary modalities’ was far too facile about other people’s sincere beliefs.

        But under current law, what faith requires is not what the Constitution requires. And I still think that’s good law for pragmatic reasons.

        Nevertheless, I think it is good *policy* in what is still a very devoted America to make accommodations. And I’m not seeing enough of that – it’s either everything has stayed open this whole time or complete shutting out of religious concerns; no nuance.

        No, I don’t think this is an intentional targeting of Christians; that’s inane. Doesn’t mean it doesn’t suck.

        1. And I’m not seeing enough of that – it’s either everything has stayed open this whole time or complete shutting out of religious concerns; no nuance.

          Sarcastr0, thank you. You have truly heard me. I know that now.

    6. According to the Talmud, … we have a positive commandment to preserve life, even if it means violating other ritual or ethical commandments. As opposed to being a built-in exception to every commandment, this source tells us that saving lives is a positive commandment on its own.

      That’s fine as voluntary exercise of religion goes, but government has no business forcing it down everyone’s throat.

      Similarly, Jesus said, “If your ass fell down a well, would you refuse to pull it out because it’s Saturday?”

      The People informed government of the importance of certain fundamental rights by listing them and saying hands off. This should not even be under discussion.

  2. The scam is over. The protests have shown nobody gives a shit about COVID and will simply do whatever they want. If the Churches continue to meekly abide by these bans they’ve shown how irrelevant they are.

    1. The protests have shown nobody gives a shit about COVID

      Weird how most of the people at the protests are wearing masks, then.

      1. If all we needed to do was for ‘most’ to wear dinky surgical masks to make society immune to covid well then why didn’ t you guys say so from the very beginning and avoid this whole global lockdown business? Why can’t people at churches or any other situation just ‘mostly’ wear masks?

      2. Antifa was wearing masks before all of this.

        1. So was the Klan.

  3. Josh:

    In this session, has CJ Roberts been virtue-signaling that he is the fifth vote needed to save Roe v Wade?

    Thx

  4. The amount of ignorance about especially Christianity in this opinion is astounding. It relies more upon stereotypes then actual doctrine or belief.

    I can’t think if this was about anything else, literally anything else remotely political, who this would even be considered acceptable.

    1. Nobody shares your particular interpretation of Christianity, and thus nobody cares about your opinion(s) regarding it. I’m sure you will continue to interpret this as a failing of other people, who have some kind of moral imperative to learn your opinion(s) on Christianity. Only then can they decide to ignore your opinion.

      1. It is not my opinion. It is God’s opinion.

        1. Speaking of hubris…

        2. God didn’t mention you when last we spoke.

        3. There are multiple Biblical passages that talk about what God thinks about those who say “thus says the Lord” when the Lord has not spoken. Perhaps you should review them.

          1. Unless he’s the AntiChrist…..

          2. I love in when non-believers try to tell Christians what they “really” believe.

            1. No true Christian, eh, Jimmy?

            2. Sorry, I assumed you believed the Bible. Which in fact has a great deal to say about those who say “thus says the Lord” when the Lord has not spoken.

            3. “It is not my opinion. It is God’s opinion.”
              “I love in when non-believers try to tell Christians what they ‘really’ believe.”

              Whereas I love it when ‘Christians’ tell God what His opinion is.

  5. Justice Kavanaugh, joined by Justices Thomas, Gorusch, and Kavanaugh.

    Beg pardon?

  6. Great analysis, Josh Blackman, of a sad decision. And you mentioned the S word, “soul”, as if it were meaningful!

    You may take exception to this, but, often it seems these kind of findings of principles and particulars in the law involve a deductive process of building cases to predetermined political or personal preference conclusions, either way. But, in this case, the real life needs important to many people- the right to worship in real, and not TV virtual community, and in which shoulder-to-shoulder prayer, song, and hugs are healing to congregations, those CDC ever-changing models and questionable stats notwithstanding- were trivialized and denied in favor of secular materialism and for-profit “essential” businesses. The anti-religion agenda is an alarming stand-out in this decision.

    1. The stay-at-home orders didn’t prohibit anyone from worshipping. It prohibited them from gathering in large groups. If your worship only “counts” if other people see you doing it, then you’re doing it wrong.

      1. If you’re protest only ‘counts’ if other people see you on the streets packing together by the thousands and setting buildings on fire then you’re doing it wrong.

        1. AmosArch, exactly right 🙂

        2. If your protest relies on setting buildings on fire, then the protesters are indeed doing it wrong.

          1. If your protest TOLERATES people setting buildings on fire, you are doing it wrong.

            Imagine if the TEA party had a fringe element that had been burning & looting. How would that have been covered????

            1. they were politely ignored.

      2. That’s quite the contortion of what I said, James Pollack. I don’t choose to attend religious services, myself, but your derisive take on people who do enjoy in-person worship and fellowship, the way it has been done for thousands of years, says more about you than most of them.

        Surely, some people do attend services only to put in a “good” appearance or to network, but there’s always a chance they’ll be moved to a higher motivation. It’s nothing to me if every single person’s sincerity isn’t perfect. What’s it to you?

        This de facto medical martial law/ house arrest kind of thing is a terrible overreach of Government in collusion with a near monolithic media narrative, state-sponsored scientists, and big corporate commerce and vaccine interests. Real debate over what’s been going on has been largely squelched, except on the smaller, seldom viewed blogs. Interesting how the middle and working classes are slowly being economically and socially disenfranchised during this Pandemic (TM), as if flu bugs were directly killing off our businesses, ability to pursue our interests, and social interactions instead of us.

        1. “That’s quite the contortion of what I said, James Pollack.”

          that’s a bit of contortion of how I spell my name. If you want to complain about that sort of thing, anyway.

          ” Real debate over what’s been going on has been largely squelched”

          the armed protesters against quarantine orders got pushed out of the news. whose fault is that?

      3. If your worship only “counts” if other people see you doing it, then you’re doing it wrong.

        Jewish law requires a group of ten people (men, in some movements) for important aspects of worship. While I’m sure we all appreciate your views on how to do it right, your opinion might not be as authoritative as you think.

      4. In many sects of Christianity showing up in large groups is REQUIRED to worship God.

        If you don’t know what you are talking about you should just shut up. The ignorance of people here is astounding.

        1. “If you don’t know what you are talking about you should just shut up.”

          since this is apparently not binding upon you, I reject your attempt to impose it on anyone else.

          “In many sects of Christianity showing up in large groups is REQUIRED to worship God.”

          Jesus ain’t said that.

      5. If your worship only “counts” if other people see you doing it, then you’re doing it wrong.

        Says you. Jewish law says that, to a great extent, my worship only counts if I am in the presence of at least nine other adult Jewish men. Only then does G-d’s presence rest upon us, and only then does He pay attention to our prayers directly.

        1. “Says you.”

          Yes, that was me. You can tell because my name was printed before what I had to say.

          “God won’t pay attention to us unless we get close enough to each other to make us all sick” is an interesting claim. Unfortunately, you deity’s choice to kill you all with plague has side effects on other people.

    2. “The anti-religion agenda is an alarming stand-out in this decision.”

      Nothing benefits from unearned and undeserved privilege in our society more than organized religion, even after centuries of education, reason, and progress. Quit whining.

      1. “Quit whining,” Kirkland says, bothering to whinge about what I wrote.

        1. He said “quit whining”, so of course you had to whine some more.

      2. You are correct, sir. If you wish to remove it from the First Amendment because of your wisdom on putting the final dagger into into the hand of illegalizing religion as anything more than a quaint lifestyle choice, severed from millenia of mass murder and wars, please make your case loudly and the American People, if they judge it sound, will approve such an amendment.

        Perhaps just modify it so politicians can illegalize just certain things if they can generate enough political outrage from the masses that the smaller religious sect can’t muster the votes to save themselves.

        Will thaf do?

        1. “Illegalize” religion?

          I believe people should be entitled to believe as they wish (without exception) and to express those beliefs (with scant exception, none of it viewpoint-controlled).

          1. The fun thing about religion is that it encompasses whatever the practitioner chooses to claim it does. Some foolish people believe that they should get a “get out of jail free” card just by saying the magic words “my religion made me do it.” Honest, it’s not me who wants to see the (insert disfavored group) punished, it’s God who hates the (same disfavored group)!!!

  7. OK, let’s bin the comparators and do this Strasbourg-style:

    1. This is clearly an interference with the freedom of religion.
    2. It clearly pursues a legitimate end, being public health, including but not limited to the health of the would-be churchgoers.
    3. The means are rationally connected to that end.

    Now the harder part:
    4. Is there a less restrictive means to achieve the same objective? I would think not, but I’m open to hearing about organising church services with government-mandated distancing, face masks, etc.
    5. Is the infringement disproportionate to the ends pursued? (Which may or may not involve giving the government extra credit to take into account that we’re still in the middle of a crisis.) I should think not, certainly not when evaluated today.

    https://ukhumanrightsblog.com/2013/06/22/an-abc-on-proportionality-with-bank-mellat-as-our-primer/

    So what, exactly, is the objection? That religion isn’t treated as an automatic get-out-of-jail-free-card, as it so often is in US court? Under any sensible human rights regime, an intervention such as this would stand a good chance of being upheld, depending on the exact circumstances of the case.

    1. All we’re asking is that worship services be treated no worse than gigantic protests for a guy who ODed or breakaway leftwing states in the middle of major metropolitan areas, largely have been, save a few cases where they get really frisky. And even then the gubmint pulls out all the stops to make sure these guys are allowed to spread covid as much as possible.

      1. Wait, so are we against the comparators approach, or are we OK with it as long as churches get compared to hospitals and nothing else?

      2. “protests for a guy who ODed”

        Wow.

        1. Thats pretty much where we are in terms of evidence. There is no relevant physical trauma that he was suffocated to death, and plenty of evidence contradicting it, ie the fact that he could repeatedly say ‘I can’t breathe’ indicates that he could breath. The best they could do is list it as a complicating factor which translates to ‘we don’t know but we need to put something that can be misread to cause people to get off our backs’. A normal person usually doesn’t die simply by being held on the ground for 9mins. So its safe to say the cocktail of drugs and his poor health was the main cause of death except everybody is currently too chicken to do so.

          1. “There is no relevant physical trauma that he was suffocated to death”

            The fellow’s own testimony seems sufficient.

          2. Thats pretty much where we are in terms of evidence. There is no relevant physical trauma that he was suffocated to death, and plenty of evidence contradicting it, ie the fact that he could repeatedly say ‘I can’t breathe’ indicates that he could breath

            AmosArch is incompetently playing doctor — but quite competently playing racist asshole.

            1. I might be wrong…show me a few expert medical sources from more than a year ago that says you can expect a normal healthy person to die if you hold them on the ground for 10mins to the point where they still can speak frequently?

              Btw what did I say that was racist?

              1. btw I agree you can get him for not doing anything when Floyd stopped responding. Although its difficult to have any firm conclusions as long as they keep hiding the full video. But that doesn’t change my overall conclusions.

            2. And the county autopsy is wrong?

              1. To be fair, the news put out conflicting reports as to Floyd’s cause of death, perhaps on purpose to keep up the cognitive dissonance and in-fighting among people who would never condone police brutality, manslaughter, or murder.

                The Hennepin County Medical Examiner said Floyd succumbed to a “cardiopulmonary arrest complicating law enforcement subdual, restraint, and neck compression.” (That’s a cut and paste quote, but the wording seems off.)

                The County Coroner also mentioned heart disease as a relevant factor and the drugs fentanyl and methamphetamine in his system as among “significant conditions,” while still concluding that his death was murder.

                After the Hennepin County Medical Examiner found “no physical findings” to “support a diagnosis of traumatic asphyxia or strangulation,” the Floyd family got an independent autopsy which concluded Floyd died of “aphyxiation from sustained pressure.”

                1. “To be fair,”

                  If one can say anything about the Volokh Conspiracy, it is that the Volokh Conspiracy is meticulously fair to racists.

                  And to gay-bashers.

                  And to misogynists.

                  And . . .

    2. I’ll take that one, Martinned. Why? Because I have been directly harmed by the restrictions on my free exercise rights.

      Is there a less restrictive means to achieve the same objective?
      Answer: Yes. A less restrictive means would be to allow religious services indoors or outdoors, with these caveats. One, participants must clearly understand there is an elevated risk in attendance. Two, that physical distancing recommendations by the CDC are provided as guidelines. Three, that mask wearing guidelines from the CDC are provided as guidelines. There is no comparator.

      Is the infringement disproportionate to the ends pursued?
      Answer: Yes. The science and the data make one thing clear. There is no age cohort where the mortality rate from Covid-19 exceeds 15%. In fact, when you aggregate all age groups together, mortality from Covid-19 is way less than 10%. Thus, this is not an existential threat to life and property, and it does not justify the suspension of our free exercise rights under 1A to arbitrary executive orders issued by governors.

      In my case, my religion requires the physical presence of 10 to form a minyan to say Kaddish for close family members who have died. I had to wait over 45 days. It was wrong. It completely impacted and changed my religiously based mourning rituals. I cannot go undo it. I am permanently harmed.

      To whom do I go for redress? I have been directly harmed by arbitrary and capricious decisions made by the state.

      In any event, you posed two very fair questions. I fel they deserved a response because that you asked is the crux of the matter.

      1. “To whom do I go for redress?”

        Tell God about it. Ask Him to smite thine enemies.

        1. I told God about it. I did not ask Him to smite my fellow Americans. 🙂

      2. Less restrictive means
        Your answer seems to ignore the externality of people getting sick. The who aim pursued was “flattening the curve”; at a time when ICUs are stressed, every (serious) COVID patient has an impact on the health outcomes of other patients, including people who are in the hospital for entirely different reasons. (Or whose surgeries get postponed, etc.)

        Beyond that, I’m sceptical that American Christians would be too entertained with politicians making detailed regulations about how many people are allowed in the church, where they are allowed to sit, whether they are allowed to hold hands, receive communion, etc.

        disproportionate to ends pursued
        That seems more than a little callous about the value of a human life. The test isn’t the future of the nation. Lots of individual people dying is a perfectly respectable reason for interfering with other freedoms (including, before anybody asks, the freedom of assembly, which would be analysed in pretty much the same way).

        And the whole point of this proportionality framework is to make sure the governor’s intervention is *not* arbitrary. If you can come up with something better, the proportionality framework gives you an opportunity to make that case without ending up with the judge entirely second-guessing the executive branch.

        1. WRT ‘least restrictive means’, I disagree. I put the onus where it belongs: on the individual.

          WRT ‘disproportinate’. Hey, I gave the data. We were told the emergency executive orders were in response to an existential threat: Covid-19. Turns out that was not the case.

          My point is that the governors did in fact use arbitrary and capricious judgment here. They made a value judgment based on their particular ideology and they were wrong to do so.

    3. “1. This is clearly an interference with the freedom of religion.”

      Any law that has any effect will have some interference with somebody’s religion, somewhere. Show that it’s intentionally targeted at somebody’s religion. Laws against murder interfere with religion, because it says right here in my holy book that I’m supposed to smite mine enemies wherever I encounter them.

  8. ” Religious worship is soul-sustaining. ”

    So is a Bruce Springsteen performance — although neither Bruce nor his followers is claiming his right to stand at a microphone overrides public health measures during a pandemic, and Bruce and the E Street Band pay taxes with respect to their popular, life-affirming performances.

    (Plenty of new-wave churches in my area feature rock bands and professional amplification, and Bruce’s performances generally feature plenty of moral and spiritual content, making the distinction between Bruce’s performance and a church service even more difficult to distinguish.)

    1. Many congregationalists and parishioners donate their time, skills and monies to churches, synagogues, and temples and interact with fellow service-goers and their ministers, priests, rabbis and imams in personal, confessional ways.

      There is a profound and distinct difference between “belonging” to religious groups- attending services and having fellowship in houses of worship- and buying tickets to rock, jazz or classical concerts, no matter how sublime the experience. The one is more often a community and spiritual committed contract over time and deeply personal outlet, the other a social and sometimes high experience upon each concert.

      1. “Many congregationalists and parishioners donate their time, skills and monies to churches, synagogues, and temples and interact with fellow service-goers and their ministers, priests, rabbis and imams in personal, confessional ways. ”

        Indeed, many kept doing so even during the quarantine orders. They just had to do it with fewer other people around while they were doing it.

        1. There is a thriving community of Springsteen fans. Visit backstreets.com, for example. Millions of unreleased recordings have been traded among Springsteen fans. Most Springsteen concerts include a collection for the local food bank — and, so far as I am aware, no one connected with Bruce takes a cut. Springsteen’s lyrics are as soulful, morally instructive, and beautiful as any religious text.

          The more I think about it, the less meaningful distinction I can find between (1) the Springsteen community and performances and (2) an organized church.

          Except that Bruce pays his taxes and doesn’t charge anyone who doesn’t want to pay, of course, while the church freeloads and is subsidized by people who do not wish to support the church.

          That, and Springsteen’s Promised Land is as good as it gets.

          1. OK, you should give that broad redefinition of religion a go in our courts. The way things are these days, you might have a chance. Be sure to use a lot of auditory evidence of song and audience reaction. You could have the courtroom dancing and feeling transported by the end of your presentation, if the judges are cool.

            1. Didn’t you see the end of The Blues Brothers? They were on a Mission from God, and they wound up playing Jailhouse Rock.

              1. Hey! I was holding the “Mission From God” argument for the end times of this discussion.

                Sometimes toying with these folks is just too much fun.

  9. He should compare worship services to mass protests, which enjoy privileged status if for the right causes.

    1. We need to learn to burn buildings in the Name of the Lord….

      Heaven help me, but that’s what it has come to.

      1. “We need to learn to burn buildings in the Name of the Lord….”

        Your lord is a paltry thing. All superstition is.

        1. Your next step in your growth, should you choose to take it, is to realize politics are religions. They just swap “In the name of god” for “in the name of The People”, whers priests or political priests, called politicians, insinuate themselves as decoders of god or some nebulous “good of tbe people”.

          Oh, and they change “I’ll make your life better after you die” with “I’ll make your life better 5 or 10 years down tbe road.” They both promise!

          This country is great because it is free, not because a priest can sway masses, or because a politician can. And freedom means freedom from tbeir control.

          By kicking religion, you’ve only tackled half of the problem. Actually, because politics declared hands off from direct government control by religion, now only it remains. Power…power…POWER!

    2. “He should compare worship services to mass protests, which enjoy privileged status if for the right causes.”

      Yeah, the cops really crashed down on the armed protesters who wanted to get haircuts but couldn’t because of quarantine orders. They were gassed, shot with plastic bullets, and driven over with police cars. And the reporters who covered the protests were beaten heavily with batons.
      Because being pro-virus-spreading was not politically correct.

  10. “Churches can feed the spirit in other ways.” What hubris!

    Hubris isn’t the word you are searching for, it’s recognizing the disdain that progressives and religious bigots have toward the free exercise of religion. The disdain for everyone progressives deem beneath them and thus unworthy of consideration. I long for the time when there were actual liberal thinkers who could hold a reasoned conversation with someone who didn’t share the same opinion on a subject. Where is the intellectual honesty of a Buckley v. Gore Vidal debate?

    1. Like I said, if we were burning buildings, it wouldn’t be an issue.
      Sad….

      1. so go burn some churches and see how it turns out.

        1. No, it would be burning NAACP offices, and if I were there, it’d be “please arrest this man to protect him from me.”

          1. knock yourself out. but don’t be surprised if the guys down at the NAACP offices don’t have some experience with people trying to burn them out, and have a plan for dealing with it.

    2. The same could be said about many alternative practice. Perhaps Black Lives Matter should circulate petitions instead of protesting and looting. Wonder if the judges would like to also give them a similar moral lecture about their methods and perceived alternatives.

      1. Well intended judges SHOULD — while getting young Black men arrested may be helpful to your cause, it doesn’t help *them*.

  11. The result might be correct on other grounds. But I agree the religion clauses do not permit government to single out religion on grounds it isn’t important. Nor do they permit judges to make value judgments about what is and isn’t important to a religion.

    1. Religion and peaceably assembling to petition the government for a redress of grievance are both in the First Amendment. Government is forbidden from rubbing its chin and deciding one is more important than covid and one less, especially when pandering to the masses, which is why they are in the First Amendment.

      Freedoms being approved by pandering politicians need no protections.

  12. Or we can just keep having church, and offering communion, and singing hymns, and ignore all this chit chat.
    Habakkuk 3:17
    Though the fig tree does not bud
    and there is no fruit on the vines,
    though the olive crop fails
    and the fields produce no food,
    though there are no sheep in the pen
    and no cattle in the stalls,
    yet I will triumph in Yahweh;
    I will rejoice in the God of my salvation!

    I would add “though the state issues edicts and the press babbles on . . . “

    1. Pirkei Avot 2:13, 14

      He said [Rabban Yochanan ben Zakkai], “Go out and seek the way which is most straight and to which a man should cling. Rabbi Eliezar said: In order to become upright in one’s ways, he needs a good eye. Rabbi Yehoshua said: He needs a good friend! Rabbi Yose said: He needs a good neighbor. Rabbi Shimon said: He needs to see where his actions will lead him. Rabbi Elazar ben Arach said: He needs a good heart. And Rabban Yochanan said to all of them, “I see in Rabbi Elazar ben Arach’s words everyone else’s!”

      Next, Rabban Yochanan advised, “Go out and seek the way which is most evil and which a person must distance himself from.” Rabbi Eliezar said: an evil eye. Rabbi Yehoshua said: an evil friend. Rabbi Yose said: an evil neighbor. Rabbi Shimon said: one who borrows and doesn’t repay. When someone borrows from a man, it is one and the same as borrowing from G-d, as it says, ‘The wicked borrows and does not repay, but the righteous one deals graciously and gives.’ Rabbi Elazar ben Arach said: an evil heart. And Rabban Yochanan said to all of them, “I see in Rabbi Elazar ben Arach’s words everyone else’s!”

      It always comes down to your heart (and mind), IMO. Only you and God know this.

  13. Freedoms and liberties are too inconvenient, how is the government supposed to control everyone?

  14. There’s literally no hubris at all here. Judges can’t make up facts and then rule according to those facts.

    There’s no evidence admissible in a court case the establishes “souls” even exist. So it doesn’t compare to the nutritive value of food, which can easily be proven.

    That doesn’t mean religious people don’t have rights. They just don’t have rights that would require courts to assume their beliefs aren’t the speculation they are.

    1. The People decided on the valuation of religion by putting it in the First Amendment, so courts are not permitted to devaluate it as speculation.

      And the rulings are logically wrong, anyway.

      Both are in the First Amendment.

      Religion: May kill by spreading disease by having tight groups for an hour.

      Protests: May kill by spreading disease by having tight groups for an hour.

      Protests: Trying to fix racism as creator of deaths.

      Religion is in the First Amendment because it was used to kill incalculable numbers of people over the ages.

      So if we’re playing a cynical game of whether the covid deaths are worth it for a greater cause, sadly it’s not even close. Government restriction on religions leads to not mega but gigadeaths.

      If you accept the pandering arguments for allowing protests, you should scream for the same for religious freedom.

      If death counting hisrorically and beyond covid is your quite reasonable yardstick.

      It is your reasonable yardstick, right?

      1. “The People decided on the valuation of religion by putting it in the First Amendment, so courts are not permitted to devaluate it as speculation.”

        The People decided on the valuation of courts by putting them in the text of the Constitution, before there were any Amendments, First or otherwise.

        Try again.

      2. “Religion is in the First Amendment because it was used to kill incalculable numbers of people over the ages.

        So if we’re playing a cynical game of whether the covid deaths are worth it for a greater cause, sadly it’s not even close. Government restriction on religions leads to not mega but gigadeaths.”

        Make up your mind. Is the number of deaths caused by religion in the billions or is it incalculable?