Religion and the Law

Federal Court Accepts Church's Challenge to D.C.'s 100-Person Limit on Outdoor Religious Services

The court applied the federal Religious Freedom Restoration Act, which was enacted in 1993 by a nearly unanimous Congress.

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In yesterday's Capitol Hill Baptist Church v. Bowser, Judge Trevor McFadden (D.D.C.) granted a preliminary injunction allowing the church to hold a large outdoor, masked, socially-distanced worship service in D.C. Judge McFadden applied the federal Religious Freedom Restoration Act, which generally requires the government to grant religious exemptions from generally applicable laws when (1) the law "substantially burdens" religious practice and (2) the government can't show that denying the exemption is the least restrictive means to a compelling government interest. (The federal RFRA covers the D.C. government as well as other parts of the federal government.)

Here is the core of the court's analysis as to the strict scrutiny analysis (element 2 noted above):

Under RFRA, the District must prove a compelling interest in banning the specific religious practice at issue: Gathering for religious worship outdoors while wearing masks and socially distancing. As the Sixth Circuit recently explained when enjoining similar restrictions based on Kentucky's RFRA statute: "The likelihood-of-success inquiry instead turns on whether [the] orders were 'the least restrictive means' of achieving these public health interests. That's a difficult hill to climb, and it was never meant to be anything less."

The District cannot rely on its generalized interests in protecting public health or combating the COVID-19 pandemic, critical though they may be. Rather, RFRA requires the District to "demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person'—the particular claimant whose sincere exercise of religion is being substantially burdened." The District has failed to meet its burden at this stage, as it presented little to no evidence that it has a compelling interest in applying its restrictions to ban the type of services that the Church wishes to hold. And some of the scant evidence that does appear in the record cuts against the District's arguments.

Consider the District's response to mass protests over the past year, which included thousands of citizens marching through the streets of the city, including along streets that the District closed specifically for that purpose. And the Mayor appeared at one of the mass gatherings, "welcom[ing]" hundreds if not thousands of protestors tightly packed into Black Lives Matter Plaza and announcing that it was "so wonderful to see everybody peacefully protesting, wearing [their] mask[s]." Indeed, Mayor Bowser  christened "Black Lives Matter Plaza" when "she directed the D.C. Department of Public Works to create a mural on 16th Street N.W., near the White House, to 'honor the peaceful protesters from June 1, 2020 and send a message that District streets are a safe space for peaceful protestors.'"

No matter how the protests were organized and planned, the District's (and in particular, Mayor Bowser's) support for at least some mass gatherings undermines its contention that it has a compelling interest in capping the number of attendees at the Church's outdoor services. The Mayor's apparent encouragement of these protests also implies that the District favors some gatherings (protests) over others (religious services).

When faced with similar facts in a First Amendment challenge, another court explained that high-profile government officials encouraging and participating in protests "sent a clear message that mass protests are deserving of preferential treatment." Soos v. Cuomo (N.D.N.Y. June 26, 2020). The court noted that the officials—Governor Cuomo and Mayor de Blasio—could have "been silent" or "could have just as easily discouraged protests, short of condemning their message, in the name of public health." So too here. Mayor Bowser, like Mayor de Blasio, is a high-level government official with "clear enforcement power." Her actions speak volumes.

The District attempts to distinguish the risks posed by mass "protest marches" from those posed by "worship services in which individuals stand in place for long periods of time," but it marshaled no scientific evidence on this point. Its main source of support stems from an assertion made by Christopher Rodriguez, Ph.D., Director of the District's Homeland Security and Emergency Management Agency, in a declaration stating: "Different events present different levels of threat about the spread of COVID-19; for example, the risk is higher for an event involving people standing in one place than for one in which people are moving."

If this assertion is making a scientific claim, it falls well short of the evidentiary standard in Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). {As pointed out by the Church at the hearing, Dr. Rodriguez earned his Ph.D in political science. He appears to have no medical background.} And even if the Court credited this statement, which it does not, it would not by itself establish that fully-masked and socially distanced outdoor worship is particularly dangerous. In fact, the District's brief explains that the protests did not trigger any spike in COVID-19 "outbreaks," undermining the notion that large gatherings are always exceptionally dangerous.

Now months into this public health crisis, the District has had the opportunity to determine with greater particularity the risks presented by COVID-19 and the restrictions necessary; sweeping justifications perhaps more suitable to the early stages of a public health crisis will not suffice. On the record here, the District has not shown that it has a compelling interest in applying its 100-person limit to the Church's proposed outdoor services.

Even if the District met its burden to show a compelling interest, it would also need to establish that there are no less restrictive means to further that interest than prohibiting the Church from gathering more than 100 congregants within the city. This "least-restrictive-means standard is exceptionally demanding," as it mandates that if "a less restrictive means is available for the Government to achieve its goals, the Government must use it." The District insists that "[n]arrower ways to promote public safety would be less effective in preventing the spread of the virus," yet it neglects to demonstrate how it knows this to be the case. RFRA demands more from the District than bare assertions.

This is especially true when the District currently treats some activities with a lighter hand. Seemingly given a pass are outdoor dining establishments, or "streataries." The District has permitted hundreds of dining establishments to serve meals outdoors. More than just providing food for consumption, outdoor restaurants serve as focal points for fellowship and communion, not unlike worship services. Yet outdoor dining establishments currently face no limit on the number of patrons they may serve, as "persons sitting outdoors" are not counted for their capacity limitations. Perhaps there are good reasons for this distinction, but the District yet again leaves the Court to speculate.

More, an amicus curiae brief submitted by the Becket Fund for Religious Liberty details the regulations in effect in all 50 states, most which either contain no capacity limitations for outdoor gatherings or explicitly exempt religious gatherings from capacity limitations otherwise in effect. The Court acknowledges the District's contention that statewide orders in effect in states around the country may not be appropriate comparators for this city, given its size, location, and population density. But that the Church has been congregating across the river in Northern Virginia, where there are no capacity limitations on worship services, casts doubt on the need for the District's chosen policy. {That the Church may continue to hold services outdoors in Northern Virginia is no [justification for the restriction in D.C.]; the government cannot defeat a RFRA claim merely by telling citizens to go practice their religion in another jurisdiction.}

For its part, the Church outlines other policies, such as holding services outside with mandatory social distancing and mask-wearing, that it suggests are less restrictive but equally effective in mitigating transmission of the virus. The District was, of course, welcome to refute the Church's claim with evidence of its own. But the Church "must be deemed likely to prevail unless the Government has shown that [the movant's] proposed less restrictive alternatives are less effective than [enforcing the District's capacity limit]."  The District has failed to carry its burden on the record here, and therefore the Church has shown that it is likely to succeed on the merits.

Here is the analysis behind the court's conclusion that D.C.'s 100-person cap on outdoor gatherings substantially burdens religious practice:

To benefit from RFRA's protections, the Church must first show a substantial burden on its religious exercise….  A "substantial burden" exists when government action rises above de minimis inconveniences and puts "substantial pressure on an adherent to modify his behavior and to violate his beliefs."

The Church believes that its congregation must meet in person each Sunday to worship together. The Church traces its commitment in part to "the scriptural exhortation that adherents should 'not forsak[e] the assembling of ourselves together.'" In a 2012 book, the Church's Senior Pastor, Dr. Mark Dever, wrote that a "biblically ordered church regularly gathers the whole congregation" because without regularly meeting together, it ceases to be a "biblically ordered church." …

The sincerity of this belief is evident in the Church's pre-COVID-19 practices: Unlike many other houses of worship, the Church resisted holding multiple worship services on Sundays, even as attendance approached 1,000 congregants. The Church contends that its religious exercise is substantially burdened by the District limiting all worship services to no more than 100 people—no matter if they are outdoors, wearing masks, and socially distanced—as this has prevented the Church from meeting at all as a congregation since March….

For its part, the District does not dispute the sincerity of the Church's belief that its members must gather together in person for worship. Rather, it maintains that the Church has nonetheless failed to prove that the District's restrictions have substantially burdened the Church's religious exercise—particularly where there are other "methods" of worship available. The District proposes that under its current restrictions the Church could "hold multiple services, host a drive-in service, or broadcast the service online or over the radio," as other faith communities in the District have done.

But the District misses the point. It ignores the Church's sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The "substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise."

The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But "it is not for [the District] to say that [the Church's] religious beliefs" about the need to meet together as one corporal body "are mistaken or insubstantial." It is for the Church, not the District or this Court, to define for itself the meaning of "not forsaking the assembling of ourselves together." Hebrews 10:25.

Nor should the Court weigh the relative burden to the Church by looking to how easily other religious groups with distinct beliefs have voluntarily changed their worship to accommodate the District's restrictions. The "question that RFRA presents" is whether the challenged action "imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs." …

And here is the court's explanation for why Jacobson v. Massachusetts (1905) (the mandatory smallpox vaccination case) shouldn't be read as "relax[ing] the heavy burden that would normally fall on" the District:

First, Jacobson addressed whether a state law mandating vaccination violated an individual's Fourteenth Amendment substantive due process "right to care for his own body and health in such way as to him seems best." The unique array of claims before the Jacobson Court—such as that the regulation violated the preamble and spirit of the Constitution—included none under the First Amendment. It may very well be that it "is a considerable stretch to read [Jacobson] as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case." Calvary Chapel Dayton Valley v. Sisolak (2020) (Mem.) (Alito, J., dissenting).

{To the extent that the District argues that the Supreme Court "rejected" one or more parts of Justice Alito's dissent in Calvary Chapel, it is mistaken on the meaning of the Supreme Court's denial of emergency relief. Such denials are not "decision[s] on the merits of the underlying legal issues." For instance, the Court may deny relief based merely on the lack of a reasonable probability that at least four Justices will consider the issue sufficiently meritorious to later grant certiorari. So other Justices, and even a majority of the Court, may very well have agreed with Justice Alito's suspicion of Jacobson and its application to the issues facing the Court. The Court's meredenial of relief should not be read as indicative of its views on themerits.}

Second, woven into Jacobson is the recognition that at the time the plaintiff refused the vaccination, smallpox was "prevalent and increasing" in the area and posed an acute risk to public health. And we know the feeling: Much of this city and country have faced similar public health risks recently or are facing them currently. In such circumstances, judicial scrutiny may recede to its lowest ebb, leaving room for an energetic response by the political branches to the many uncertainties accompanying the onset of a public health crisis.

But when a crisis stops being temporary, and as days and weeks turn to months and years, the slack in the leash eventually runs out. "While the law may take periodic naps during a  pandemic, we will not let it sleep through one." Roberts v. Neace (6th Cir. 2020).

Third, and most importantly, the District articulates no reason why Jacobson's framework applies when assessing a RFRA claim. The District cites no cases in which a court has applied Jacobson's relaxed standard instead of the strict scrutiny test detailed in the statute. And recall that RFRA "did more than merely restore the balancing test used in the [pre-Smith] line of cases; it provided even broader protection for religious liberty than was available under those decisions." Congress incorporated a specific burden-shifting framework into RFRA. Courts must respect that decision and dutifully apply its scheme.

I think the court's analysis is correct under RFRA, at least based on the factual record as the court describes it.

NEXT: D.C. Circuit Considers Obama and Trump Administration Climate Rules

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  1. They are letting hundreds if not thousands into college football sports stadiums. The government is going to have difficult time proving why religious services are worse.

    1. I appreciate the argument, but generally speaking such comparisons work best if we’re talking about the same branch of government doing both (or if nearly everybody throughout the country is finding a particular restriction unnecessary). Did D.C. allow opening up outdoor professional sports games?

      1. The angry ones this election seem to be all about one centralized, nationwide command and control telling you what to do, not those struggling for freedom of religion.

        Anyway, if idiots wanna gather, so be it. Government’s concern is not overwhelming hospitals.

        1. Government’s concern is not overwhelming hospitals.

          Yes, yes — that’s how this debacle was sold to us back in early March. Here’s hoping we can someday return to that standard.

      2. DC has allowed many more than 100 to gather at numerous BLM rallies,looting, burnings, and statue vandalisms.

        1. Well, yes, that’s a big part of the court’s argument, which I quote in the opinion.

    2. Proof will be along presently. It will not be necessary to show that religious services are worse, or even just as bad. It will be necessary only to show that religious services, like other gatherings, spread contagion. With that established, it should be evident to anyone who gives exponential contagion a moment’s thought, that comparative degrees of malign outcome will be largely a matter of happenstance down the contagion chain.

      The job of government in a deadly viral emergency is to cut the contagion chain, anywhere and everywhere it can. Any court which obstructs government in that duty, and while doing so attempts comparative analysis of contagion risks from different sources, is a court which does not understand even the first thing it needs to know to do its job.

      1. This is undermined by the embrace of mass protests by these same officials.

        1. ME, of course it is. As I mentioned below, the court’s response cannot reasonably be to compound the undermining, by ordering increased scope for bad practices.

          1. If the government chooses to permit bad practices consistent with its lawful authority, that’s that. DC may be making a mistake turning a blind eye to BLM mass gatherings. I am extremely sympathetic to the idea that they couldn’t actually forbid the gatherings. Given that, if I were in charge, I would do my best to content- and viewpoint-neutrally channel them into safer mechanisms. For example, maybe by holding more spaces open for protest, with careful policing at the edges to ensure people have not gathered too compactly with in them.

            But it is not the duty of courts to take on the fundamentally legislative duty of deciding that the line should be more conservatively drawn in other cases, to balance out the risk of (presumptively, for the sake of argument) risky mass protests.

            1. (couldn’t forbid the gatherings as a practical matter, I mean)

        2. This is undermined by the embrace of mass protests by these same officials.

          “Racism is worse, so they can gather still to try to fix it.”

          “Isn’t the death toll from religious intolerance magnitudes greater?”

          “That was then. This is now.”

          “And how did we get here from there?”

          “By forbidding government from allowing one religion to oppress another througb governm…ohhhhh.”

      2. It will be necessary only to show that religious services, like other gatherings, spread contagion.

        Can you provide actual and specific evidence that specific religious services have spread contagion in significant numbers?

        1. Duh, the PhD in Political Science said so!

      3. Lathrop,
        You obviously do not understand the details of contagion. Rather you accept a bureaucrat’s understanding of the day before yesterday’s guess by CDC or john’s hopkins, etc.

        1. For, “details of contagion,” I get to trust Johns Hopkins, or trust you? What’s your point?

      4. ‘Proof will be along presently.’ That’s convenient. Should we apply this in the criminal courtroom as well? I am certain we can expedite more harsh sentencing by following your rationale. As you don’t seem to have been following, masked outdoor gatherings where social distancing is kept up do not yield ‘exponential contagion.’

        1. Hank, I meant proof to satisfy (or dismay) people like you. For the vast majority, existing proofs are already sufficient.

          Nor, by the way, is there any reason a precautionary public policy to manage a pandemic should require evidence sufficient to get over the bar in a criminal courtroom. What is your purpose in suggesting that?

          What I have been following is that people have been sickened by the millions, and dying by tens of thousands. Admittedly, I am accepting the medical judgment that the Covid virus is causing that. Your comment seems based on a presumption that there must be some other cause. What cause?

      5. Proof will be along presently. It will not be necessary to show that religious services are worse, or even just as bad. It will be necessary only to show that religious services, like other gatherings, spread contagion. With that established, it should be evident to anyone who gives exponential contagion a moment’s thought, that comparative degrees of malign outcome will be largely a matter of happenstance down the contagion chain.

        That’s not enough, Stephen. The core principle of the religion clauses is no discrimination against religion.

        We can argue about level of scrutiny, but if religious groups are treated worse than similarly situated other groups, this could be unconstitutional even if religious gatherings spread contagion. Local government may be required to impose the same restrictions on all similarly situated gatherings or none.

        1. Dilan, fairly obviously, non-discrimination against religion must include no favoring of any particular religion, lest the others be discriminated against. That must rule out support for particular religious doctrines in courtrooms.

          And if not one religion can be favored, then they must all be left alone alike, without explicit legal support for any of them. There can be nothing in American law to favor religion over no-religion.

          Thus, no support for religion is not discrimination against religion.

          So now consider, “Local government may be required to impose the same restrictions on all similarly situated gatherings or none.” That still leaves this case’s key question unanswered. The key question is: In a case where a court did not intervene against demonstrators, and is then asked to intervene in favor of religionists, is it right for the court to restrict both, or for the court to indulge both?

          Your principles give no hint of which way to answer. I suggest the exigency of a public health emergency dictates the answer in this case. The court would be correct to restrict both, and mistaken to indulge both. It would also be mistaken to indulge either, and restrict the other. Finally, if a court has made the mistake of indulging one, and restricting the other, what principle says the law can only act correctly by reversing the restriction, instead of reversing the indulgence?

          1. Thus, no support for religion is not discrimination against religion.

            I mean, sure (and this is consistent with current doctrine), but the principle at issue here isn’t a matter of support for religion. It’s an issue of discrimination. If there are similar gatherings to church gatherings that are not treated the same way, despite having the a similar likelihood of spreading the virus, then the non-religious gatherings cannot be given favorable treatment. This is what Justice Kavanaugh calls the “most favored nation” principle and it is unarguable.

            n a case where a court did not intervene against demonstrators, and is then asked to intervene in favor of religionists, is it right for the court to restrict both, or for the court to indulge both?

            It’s not really about the Court. It’s about the government. If the government allows gatherings that are similarly dangerous to church gatherings, it has to allow church gatherings under the same rules.

            I suggest the exigency of a public health emergency dictates the answer in this case.

            The emergency may dictate the level of scrutiny. That seems unresolved, and Jacobson is relevant here. But it doesn’t change the principle. Even in an emergency, there’s still a non-discrimination principle that is operative.

            And the way it operates is simple. If there’s an example of a similar non-religious gathering that the government treated a certain way, that’s the way that religious gatherings have to be treated, absent changed circumstances. Most favored nation.

            1. If a non-discrimination principle binds the government, it must bind likewise the court, which is part of the government.

              It seems to me that part of your problem is to explain why a public health emergency is something a court can just ignore. You seem to want to get around that with some bizarre would-be analogy, “most favored nation,” which you pronounce, “unarguable.” It isn’t even a valid analogy, let alone an unarguable one. It’s just silly.

              Also, to say, “Even in an emergency, there’s still a non-discrimination principle that is operative,” begs the question. The question is, once again, what rule of non-discrimination is the court to apply? Is it to keep everything open alike, or shut everything down alike? Please answer that, while not discounting to zero the emergency, as if it were a non-factor in the question.

              I ask also why an indisputable public health emergency, a literal plague, does not require the court to defer to the executive? By their nature, emergency powers are dangerous, and require heightened accountability. The executive is subject at least to political accountability, which can reasonably be expected to temper the executive’s judgment during the exercise of emergency powers. Courts with lifetime appointees have zero accountability, and thus should not supplant executive judgment during emergencies with their own.

              The principle, “Let justice be done, though the heavens fall,” is not a useful guide to judicial practice during times when there is genuine danger that the heavens might fall. Judicial supremacy is not always as good an idea as you seem to think it is.

              1. “The question is, once again, what rule of non-discrimination is the court to apply? Is it to keep everything open alike, or shut everything down alike? Please answer that, while not discounting to zero the emergency, as if it were a non-factor in the question.”

                My answer: In the long run (e.g. weeks time scale), the court shouldn’t decide that. They should order the government to stop discriminating, and give them short deadline to explain how they will comply.

                In the short term, IANAL but my understanding is that a mandamus (go shut down those BLM protests) is considered more extraordinary intervention than an injunction (don’t shut down that religious service). The court should take the lesser action and allow the religious service until the government convinces the court they have a new policy that does not discriminate.

            2. Most favored nation is not the current Free Exercise doctrine (although it might be for RFRA) and Eugene persuasively argues it ought not be.

          2. Except that religious beliefs are expressly favored and religious practices are expressly protected from interference. Aside from that, sure!

      6. If your hypothesis were true, proof would not “be along presently”, it would have been here months ago. Instead, there is notable lack of “exponential contagion” following gatherings, including religious services.

        1. Rossami, that’s nonsense. The nation did not begin with a few cases in late February, and arrive by linear contagion at millions of cases and > 200,000 fatalities in 7 months.

          1. You might want to look at the graphs of cases and deaths (scroll down to the graphs). Those aren’t exponential curves.

          2. The nation did not begin with a few cases in late February

            That’s unintentionally correct — there were probably thousands, if not tens of thousands, at that point.

            and arrive by linear contagion at millions of cases and > 200,000 fatalities in 7 months.

            Also unintentionally correct — the aggressive growth was in testing (a few tens of thousands per day in March to over 800k/day these days). It shouldn’t be particularly surprising that when you measure more, you find more. Simply plotting the raw number of positive test over time, without factoring in the massive swing in test volume, grossly distorts the apparent growth curve.

            1. LoB, have you noticed that the proportion of fatalities to positive cases is more consistent than the proportion of tests to positive cases? I suggest that probably means the rise in cases is more a real effect than it is some spurious signal from too much testing.

              For what it is worth, if you look at it, you will discover that the intensity of testing is all over the place, with wildly different levels of testing effort among localities, even among localities within the same state.

              I suggest your testing excuse is completely worn out.

  2. The court is adopting as it own, and enforcing on the District of Columbia, particular religious tenets urged by the plaintiffs. The court does that on no better principle than the say-so of the religionists, while demanding iron-clad evidence from the District at every point in its argument.

    I get that the RFRA applies in that way in case after case, so I am not suggesting this court is doing something peculiar. I fail to understand, however, how a court requiring that government honor and enforce the particular religious doctrines of a particular plaintiff is anything but establishment of the plaintiff’s religion. It looks to me like an argument that the RFRA itself, at least as it is now being enforced, is unconstitutional.

    As for the argument that the church should be allowed to congregate without limit, because protests were allowed, no. If encouraging protestors lays groundwork for abolition of public health standards during a pandemic emergency, the court’s enforcement obligation cannot be to order increased scope for that error. Instead, the court should insist that protests not be allowed, or be conducted in a manner consistent with public health—and then apply that remedy uniformly to other gatherings, including those of religionists.

    1. Look,
      The largest protests shown NO increase on contagion up to 2 weeks after the events. That is empirical evidence. Don’t give me blah-blah about following the science, As Richard Feynmann used to say, “if your theory disagrees with experiment it is WRONG.”

      1. Don Nico, forget it. Minimizing for Trump probably isn’t going to be thing anymore, in about 3 weeks. Or maybe it will be, in which case it will be really evil to keep doing it.

        Millions of people are catching this virus. They are getting it somewhere. My guess, they are getting it when they hang out with other people. What’s yours?

        1. Stephen,
          Who gives a shit about Trump?
          Either you are making a comment about public health policy regardless of politician in power or you are just blathering.

          1. It is blathering.

        2. How did you get Trump out of his comment? As for post-election, both left and right are pretty bad, and the situation is not likely to improve until politicians, media, and academe drop the hyperbole and adopt honesty as a best practice.

    2. ‘I fail to understand.’ Truer words ne’er have you spoken. If you are drawing a distinction on size of gathering based on purpose, then suggesting banning or severely curtailing both assembly and free expression, then you truly have no understanding what it is you are talking about. The evidence does not support draconian limitations on freedoms, but it is interesting that you propose doing away with them once religious freedoms come into play. If people gathering for services are doing so safely and causing no harm, just as if people gathered to protest are causing no harm (or property damage), there is no reason for restrictions based on unlikely future outcomes.

      1. Yes, Hank, if people are doing no harm, there is no harm to justify acting to restrict them. A truer truism has never been constructed.

        There is no reason for restrictions based on unlikely future outcomes.

        With that one, you are very far off the mark. Reasons for restrictions based on unlikely outcomes depend critically on how harmful those unlikely outcomes may be, and also on how many times unlikely happenstance repeats.

        When the unlikely outcome will be catastrophic if realized, then restrictions of very low probability risk-taking may be justified. If an unlikely-outcome risk of catastrophic harm will be repeated with great frequency, then the likelihood of catastrophe may rise to near certainty, even while the risk remains low for each individual event which contributes to the overall result.

        As pandemic-time gatherings increase linearly in size, the potential for spread increases faster. Larger groups increase exponentially the number of paths for spread of contagion within the group, so larger groups are disproportionately (intuitively disproportionate, not mathematically disproportionate) riskier than smaller ones. So larger groups sizes increase simultaneously both the magnitude of potential catastrophe, and the risk of catastrophic spread.

        That may remain true even while each interaction among group members presents only a slight risk of transmission. Whether catastrophe among large-group members does happen depends critically on both the characteristic probability of contagion of the organism, and on the frequency with which opportunities for transmission occur. There is room in that statistical set for a high probability of very bad outcomes from risk events with low individual probabilities.

    3. The court is not adopting particular religious tenets. Rather, the court is taking fundamentally the same position the Supreme Court took in Thomas v. Review Board: “[I]t is not for us to say that the [belief asserted] was an unreasonable one.” Courts do not judge religious beliefs except to determine whether they are sincerely held. And the mere act of judging whether a belief is sincerely held, is not the same as the court or the government or the voters being compelled to adopt it.

      1. Jeff Walden: And the mere act of judging whether a belief is sincerely held, is not the same as the court or the government or the voters being compelled to adopt it.

        Well, sure, it isn’t the same. But the court doesn’t stop there. Based on that innocuous outcome, the court then goes on to compel a noxious result. The court requires the public at large to support that sincerely held belief. And even requires everyone to suspend constitutionally valid, generally applicable laws to make it happen. And not just to suspend those laws with respect to the individual religious claimant, but to suspend them with regard to bystanders, whose legitimate privileges and immunities may get suspended even when they do not at all share religious claimants’ points of view.

        Seems to me that when due process, and privileges and immunities to which everyone is otherwise entitled, get suspended to compel support for a particular religious doctrine, that is the very essence of establishment of religion.

      2. I believe Steve isn’t challenging Thomas, but rather is arguing that RFRA itself is unconstitutional, or at least is as applied to this case. As I understand it, RFRA is almost certainly facially constitutional per the result in Cutter v. Wilkinson which upheld a challenge to the similar Religious Land Use and Institutionalized Persons Act in an opinion written by Justice Ginsburg.

        However in that opinion, Ginsburg says

        courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.

        Unfortunately, she didn’t specify what constituted an “adequate account.”

    4. I fail to understand, however, how a court requiring that government honor and enforce the particular religious doctrines of a particular plaintiff is anything but establishment of the plaintiff’s religion.

      So if a court enforces an agreement to arbitrate in a religious tribunal, that court is establishing religion?

      Your principle is overbroad.

      1. Dilan, make up premises to suit yourself. I didn’t say that, or imply it.

        To fit within my argument, the agreement to arbitrate would have to be offered to the court as itself a sacrosanct religious commandment, with which the court was powerless to interfere. If for some peculiar reason that did happen, and the court bought that argument, then, yes, it would be establishing religion.

        But note, how could it happen? One party would be claiming sincere religious belief in the arbitration agreement, and the other party would be claiming religious disbelief in the arbitration agreement. The court would have to flip a coin.

        1. To fit within my argument, the agreement to arbitrate would have to be offered to the court as itself a sacrosanct religious commandment, with which the court was powerless to interfere.

          I don’t see anything like that in either the First Amendent or RFRA. Why should I give two ****s that believers believe something is sacrosanct? As long as the rule of law that enforces it has a secular purpose and is generally applicable, who the heck cares?

          RFRA is a generally applicable statute with a secular purpose. It meets the Lemon test, or any other test for Establishment that the Supreme Court (which gets to decide the test) has offered.

    5. Yes, you definitely fail to understand.

  3. Americans, especially younger Americans, increasingly observe religion to be mainly (1) a refuge for old-timey bigots and (2) associated with special privilege for reckless, anti-social, science-disdaining inhabitants of downscale rural and southern communities.

    Should we expect this circumstance to accelerate the trend toward preference for reason in America?

    1. Wow, OK this isn’t 100% horseshit so I’ll take a crack at it.

      Americans, especially younger Americans, observe very little that isn’t in their twitter feed. As to point 1): yeah pretty much. As to point 2) Special privileges? Mostly tax exemptions, but OK. It’s not a privilege not to be fucked with. Reckless, debatable, anti-social, just the opposite, science-disdaining, maybe, downscale rural and southern, debatable.

      But let’s not quibble. If I granted you points 1) and 2), then so what? Preference for reason, sure. My problem is government congratulating BLM for the exact sort of reckless behavior for which they have banned religious services, and the federal court evidently agrees. Personally I think reckless behavior should receive the same response from government regardless of the political affiliation of the reckless, but that’s just because I’m not a statist.

      1. Trust me, it’s horseshit, it’s Kirkland, a troll. It’s intended to get a rise; he generally follows up with ‘open wide, clingers, here comes more progress’ or something similar. He is anti-religious, anti-conservative, anti-scientific theories that aren’t advocacy/consensus based.

        1. Participation in organized religion is declining substantially, a trend that may be accelerating. Religion is plainly associated with Trump, intolerance, and a casual approach to coronavirus risk these days. Younger Americans have substantially less exposure to the ‘good old days’ when religion was much more favorably depicted in news reports, schools, popular culture, and other contexts. Rural areas, in which religion is more popular, continue to empty.

          When I was a sports writer, a prominent and successful college football coach told me the key to building a powerful program was to set mutually reinforcing factors — victories, successful recruiting, alumni support (dollars and interest), better schedule, television exposure, professional success among players — in motion and then ‘get the hell out of the way.’

          It seems reasonable to consider whether diminution of religion in our society has reached the ‘get the hell out of the way’ phase.

          1. It is far too late troll to be giving an explanation for your terrible bigotry. To be unintentionally funny is the cruelest joke of all. Cheers.

  4. This decision is precisely why I am heartened that Senator McConnell made it a priority to get solid judges on the bench = Judge Trevor McFadden. He’ll be there a long time.

    To Judge McFadden I simply say: Thank you.

    I thought strict scrutiny was always the appropriate standard for cases like this. IMHO, if you are going to restrict my enumerated right of religious free exercise, it has to clear the highest legal bar. And a viral pandemic with a overall mortality rate of <1% is just not good enough to do away with this enumerated right. I wonder how future legal historians will look at these cases. Whatever possessed us to abrogate our God-given and constitutionally guaranteed rights of religious free exercise?

    1. Sadly, you continue to beg the question of what constitutes free exercise of religion.

      That being said, this case was based on RFRA, not the First Amendment. Thus, the legislature has empowered the courts to give religious exercise greater consideration. But, when the legislature fails to do so, Eugene persuasively argues courts should not do so.

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