Religion and the Law

Colorado Coronavirus Response Unconstitutionally Restricted Religious Institutions, Holds Federal Judge

Houses of worship, which the Colorado order labels "critical" institutions, must be treated at least as well as other critical institutions.

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From Judge Daniel D. Domenico's decision last week in Denver Bible Church v. Azar (including three citations to Ilya Somin's post about Jacobson on this blog):

The State rightly argues that during a public-health emergency, courts must be particularly mindful of the complex interaction between constantly evolving scientific understanding and policymaking, and the court recognizes that the decisions being made by the State Defendants here are truly matters of life and death. For the most part, the court, like Plaintiffs and the rest of Colorado's citizenry, must and does defer to State policymakers' weighing of the costs and benefits of various restrictions imposed to minimize the spread of COVID-19.

But the existence of an emergency, even one as serious as this one, does not mean that the courts have no role to play, or that the Constitution is any less important or enforceable. And while the religious, like the irreligious or agnostic, must comply with neutral, generally applicable restrictions, the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship's religious exercise. Those fundamental principles, which involve no balancing or second-guessing of public health officials' scientific analysis or policy judgments, require the court to grant Plaintiffs' motion, in relatively narrow part.

In addition to other neutral and generally applicable restrictions, Colorado currently imposes capacity limits on houses of worship that are more severe than those that apply to other so-called critical businesses whose settings pose a similar risk of COVID-19 transmission, and the State allows a variety of exceptions to its facial-covering requirement where it recognizes that removing a mask is necessary to carry out a particular activity. The court does not doubt that the State made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it. But the Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant's or spa's.

Judge Domenico began by concluding that Jacobson v. Massachusetts (1905) doesn't foreclose strict scrutiny of restrictions on constitutional rights during an epidemic:

Emergencies like this one raise an age-old question. When confronting an emergency, to what extent can the government curtail civil rights? And what is the proper scope of judicial review of actions taken by state or federal governments in response to the emergency? Justice Jackson was surely correct that the Bill of Rights is not a suicide pact—the Constitution doesn't kneecap a state's pandemic response.

But the existence of a crisis does not mean that the inalienable rights recognized in the Constitution become unenforceable. Cf. Hamdi v. Rumsfeld (2004) (plurality opinion) ("It is during our most challenging and uncertain moments that our Nation's commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad."). The question, then, is where to draw the line. How, if at all, does the normal analysis courts use to evaluate alleged constitutional violations change when the challenged government action was taken to combat a pandemic or other emergency threatening public health or safety?

The analysis changes in a number of ways. For one thing, there is no question that the State here has a compelling interest in protecting its citizens from the SARS-CoV-2 virus. Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) ("The police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety."). For another thing, a state's actions during a public-health emergency, like Colorado's here, are often taken against a backdrop "fraught with medical and scientific uncertainties." It isn't the job of the judiciary to second-guess the "wisdom, need, or appropriateness" of the measures taken by a state to protect the health of its people during a pandemic.

Colorado argues, however, that the Supreme Court's 115-year-old decision in Jacobson doesn't simply fit within the normal constitutional analysis or merely modify it to account for emergency circumstances. Colorado instead argues that this court's analysis begins and essentially ends with Jacobson. In Jacobson, the Supreme Court rejected a challenge to a mandatory vaccination law, holding that states have broad authority to implement emergency measures to protect "the safety and the health of the people," so long as those measures have some "real or substantial relation" to that objective and are not "beyond all question, a plain, palpable invasion of rights secured by the" Constitution.

According to Colorado, the import of Jacobson is that courts should only intervene against state emergency action in "extreme cases," without applying modern constitutional doctrine. Essentially, the State's view is that, like the suspension of the writ of habeas corpus permitted by the Constitution in times of "Rebellion or Invasion," normal constitutional review of state action is suspended when that action is taken to stop or slow a pandemic or other crisis.

{Colorado argues that the Supreme Court recently affirmed this reading of Jacobson when the Court denied applications for injunctive relief from public-health orders issued by California and Nevada. See S. Bay United Pentecostal Church v. Newsom (2020) (mem.); Calvary Chapel Dayton Valley v. Sisolak (2020) (mem.). But those decisions aren't precedential.). And Colorado overlooks the fact that the Supreme Court applies a heightened standard when evaluating a request for injunctive relief that was denied at the District Court level. S. Bay (Roberts, C.J., concurring) (Court "grants judicial intervention that has been withheld by lower courts" only "where the legal rights at issue are indisputably clear and, even then, sparingly and only in the most critical and exigent circumstances" (internal quotation marks omitted)).}

The court cannot accept the position that the Constitution and the rights it protects are somehow less important, or that the judicial branch should be less vigilant in enforcing them, simply because the government is responding to a national emergency. The judiciary's role may, in fact, be all the more important in such circumstances. Jacobson, while an important and instructive case, isn't a "blank check for the exercise of governmental power." Indeed, Jacobson itself says that "no rule prescribed by a state, nor any regulation adopted by a local governmental agency acting under the sanction of state legislation" to safeguard public health and safety may "contravene the Constitution of the United States, nor infringe any right granted or secured by that instrument." "A local enactment or regulation, even if based on the acknowledged police powers of a state, must always yield in case of conflict … with any right [the Constitution] gives or secures." And so, while the State can and must take action to respond to an emergency, it must do so within the confines of the Constitution. In other words, while an emergency might provide justification to curtail certain civil rights, that justification must fit within the framework courts use to evaluate constitutional claims in non-emergent times….

So the better view is thus that Jacobson fits within existing constitutional doctrine. First, Jacobson means that most state and local public-health orders that don't implicate fundamental rights will be analyzed under what is now known as the rational basis test. And they will, as this court previously held, generally be upheld. Second, as noted above, even where heightened scrutiny does apply, Jacobson stands for the undeniable proposition that fighting a pandemic is a compelling state interest.

Third, and perhaps less obviously, Jacobson's emphasis, in conjunction with cases like Marshall and Edwards, on the need for judicial deference to policymakers' analysis of evolving scientific and medical knowledge helps explain why, as "emergency" restrictions extend beyond the short-term into weeks and now months, courts may become more stringent in their review. In the court's view, this admonition comes into play in the "tailoring" prong of current constitutional doctrine. Where fundamental rights are implicated, this requires assessing whether the government's action is the least restrictive means available.

In the earliest days of a pandemic or other true emergency, what may be the least restrictive or invasive means of furthering a state's compelling interest in public health will be particularly uncertain, and thus judicial intervention should be rare. But as time passes, scientific uncertainty may decrease, and officials' ability to tailor their restrictions more carefully will increase. What may have been permissible at one point given exigencies and realistic alternatives in the face of those exigencies may not remain permissible in the long term.

Applying normal constitutional scrutiny—even strict scrutiny, where appropriate—does not mean that the majority of actions taken by the State in response to the COVID-19 pandemic will be found invalid. As the remainder of this Order shows, "[m]any, probably even most, emergency measures will be upheld even under ordinary judicial review." In light of "the severity of the threat, [emergency measures] can pass even a high level of scrutiny." "But maintaining normal judicial review reduces the risk of pretextual policies, and helps ensure that even well-intentioned ones do not overreach." A pandemic is, in other words, a context where constitutional scrutiny might be strict in theory, but not fatal in fact….

And applying normal constitutional scrutiny, in light of these considerations, the court held that Colorado Public Health Order 20-35 violates the Free Exercise Clause:

While the order designates houses of worship as "critical," in practice it treats them differently from other "critical" businesses and activities, even those that pose a comparable risk of COVID-19 transmission. Plaintiffs highlight two restrictions in the order that, they contend, are unconstitutionally applied to houses of worship and burden their right to free exercise: occupancy caps for indoor worship services, and the requirement that worshippers wear a face mask for indoor services….

Under the current Public Health Order, at Level 1 of the Safer at Home Levels, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 175 people." At Level 2, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 50 people." And at Level 3, they "may operate at 25% of the posted occupancy limit indoors not to exceed 50 people."

Even though many secular institutions designated as "non-critical" are also required to comply with the same or similar occupancy limitations, Public Health Order 20-35 creates exemptions for a wide swath of secular institutions deemed "critical," including: meat-packing plants, distribution warehouses, P-12 schools, grocery stores, liquor stores, marijuana dispensaries, and firearms stores. In other words, the JBS meat-packing plant in Greeley, the Amazon warehouses in Colorado Springs and Thornton, and your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement. Denver Bible Church and Community Baptist Church, by contrast, must comply with numerical occupancy caps, no matter how many people their sanctuaries might accommodate while maintaining six feet of distance between non-household members.

Consider as well the face-mask mandate in Executive Order D 2020 138, which is incorporated by reference into to Public Health Order 20-35. It generally requires persons older than ten to wear a face covering when inside a Public Indoor Space, which includes houses of worship. Yet, for example, "individuals who are seated at a food service establishment" are exempt from the face-mask requirement. "Individuals who are receiving a personal service where the temporary removal of the face covering is necessary to perform the service" are also exempt, as are "Individuals who are exercising alone or with others from the individual's household and a face covering would interfere with the activity." Executive Order D 2020 138 contains a total of eight exemptions, none of which apply to worship services.

By the orders' terms and in effect, what this system of limitations and exemptions has done is to both ease restrictions on what the State deems critical, and to some extent noncritical, activities, and to remove particular restraints, like the face-mask requirement, when those restraints would interfere with what the State considers a "necessary" part of the activity.

The State may have the power in general to decide what activities are and are not critical to ensure the health and safety of individuals and their households, and what tasks are necessary to carry out secular activities. But it does not have the power to decide what tasks are a necessary part of an individual's religious worship. And while religious exercise is subject to truly neutral and generally applicable regulations, once the State begins creating exceptions for secular activities as it deems necessary, then it is obligated to treat religious activities no less favorably, absent a compelling reason….

The State Defendants offer three reasons for their disparate treatment of houses of worship. None is compelling.

Colorado first justifies its discriminatory treatment of houses of worship on the ground that contact tracing is easier in houses of worship than in the kinds of retail settings that are exempt from the more onerous occupancy limits in Public Health Order 20-35: "It is also practically impossible to perform contact tracing between strangers who have anonymous interactions in a critical retail setting." Far from helping Colorado, this argument cuts strongly against it. That it is easier to use contact tracing in houses of worship than in other settings doesn't justify worse treatment of houses of worship—just the opposite. If anything, the relative ease of contact tracing at houses of worship justifies fewer restrictions, and concomitantly more restrictions on institutions where contact tracing is more difficult.

Next, Colorado says that its decision not to impose occupancy restrictions on schools reflects its respect for the principle of local control of school districts enshrined in Colorado's Constitution. This respect is well-placed. Local control is indeed an important concept in Colorado's Constitution. But it is not more important than the principles enshrined in the First Amendment to the United States Constitution. And if Colorado is willing to run additional risks out of respect for local school districts' autonomy, the First Amendment requires it to do the same out of respect for religious congregations' autonomy.

The State's strongest reason for treating houses of worship differently is that, in most of the secular institutions exempted from the occupancy and other limitations, indoor person-to-person contact is "transient," whereas person-to-person contact in a church setting is generally prolonged. The State Epidemiologist, Dr. Rachel Herlihy, testified that "in closed-indoor environments, respiratory droplets are more likely to linger on surfaces and/or be recirculated through the indoor space due to either poor ventilation or large numbers of people in the indoor space." According to Dr. Herlihy, "short, transient interactions" indoors are much less likely to transmit COVID-19 than extended indoor contact is.

While the court accepts these facts as true, Colorado's transient-versus-prolonged approach to differential treatment of houses of worship is flawed. The State's evidence regarding what constitutes a "close"—and thus dangerous—contact requires both a proximity and a duration component. According to Dr. Herlihy, "data are insufficient to precisely define the duration of exposure that constitutes prolonged exposure and thus a close contact. However, a close contact is defined as being within 6 feet for at least a period of 15 minutes to 30 minutes or more depending upon the exposure."

So according to the State's own evidence, for a contact to be "close" and thus significantly riskier, it must (1) be within six feet and (2) last for more than fifteen minutes. If so, a limit on either proximity or duration is adequate to avoid risky close contacts. And under the Distancing Requirements of Public Health Order 20-35, no entity open to the public, including houses of worship, may allow non-household person-to-person contact indoors within six feet. So even without an occupancy restriction, Plaintiffs are subject to a regulation that prevents one of the two necessary components of a risky close contact. That, according to the State's own evidence, ought to be enough. And, for most other critical businesses, it is: warehouses, schools, critical manufacturing, groceries, pharmacies, liquor stores, and others are allowed to operate at full capacity for presumably full shifts of well over an hour, on the assumption that the distancing restrictions will be adequate to protect against virus transmission.

The more serious problem is that Public Health Order 20-35 exempts secular settings that pose similar threats of prolonged exposure from the occupancy limitations and face-mask requirements imposed on houses of worship. What is the meaningful difference between, say, a warehouse, a restaurant, or an elementary school—where employees, diners, and students spend long periods in a closed-indoor setting—and a house of worship?

The best answer Colorado has is that "singing or speaking loudly propels respiratory droplets farther," and that this kind of activity happens in houses of worship but not in those other settings. Dr. Herlihy likewise generalizes that "customs in houses of worship may also result in increased contact. For example, shaking hands, observing Eucharist, passing a basket, or showing a sign of the peace may all place people in closer contact th[a]n they would be in other settings."

Perhaps. But shaking hands, passing items around, and showing a sign of peace have secular equivalents in many places of business or social settings. And as Dr. Herlihy admits, schools "also frequently have singing or loud, excited speaking." Indeed, most outbreaks in Colorado have occurred at workplaces, schools, and businesses, not churches. The largest outbreaks in the State have been at colleges and prisons. And the State's own data show that, of the nearly 900 active and resolved outbreaks Colorado has seen to date, only fifteen of those (less than 2%) occurred at a religious facility.

In the end, though, the court does not doubt the science underlying Colorado's decisions. It accepts that the best available evidence says transmission of COVID-19 is more likely indoors when people are together for long periods of time.

But the orders reveal that in practice the State treats some activities as necessary, but those Plaintiffs seek to engage in as less so. This reflects the view that, as one court put it, it is practically impossible to restrict people from working together in person in places like schools, food-processing facilities, restaurants, and warehouses, but "churches can feed the spirit in other ways." That may be true for many religious individuals and institutions, but it is not for Plaintiffs. And with due respect for both the State and the Seventh Circuit, this court does not believe government officials in any branch have the power to tell churches and congregants what is necessary to feed their spiritual needs. See Maryville Baptist Church, 957 F.3d at 615 (state is not entitled to decide whether reduced, masked congregation or online services are "an adequate substitute for what it means when 'two or three gather in my Name.'" (quoting Matthew 18:20))….

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic.

As time passes, and Colorado learns more about the science of COVID-19, its public-health officials have made carefully tuned risk assessments about what activities they deem sufficiently important to warrant full-capacity reopening. These choices clarify what activities they believe serve societal interests of the highest order—primary and secondary education, convenient access to food and home supplies, and certain kinds of manufacturing.

These are important interests—critical and necessary even. But the People, through the Constitution, have resolved that the free exercise of religion is at least as critical and necessary. So Colorado's failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment's guarantee of the free exercise of religion. Plaintiffs have thus made a strong showing that they are likely to succeed on the merits of their as-applied free exercise claim.

Note well that the implications of this conclusion aren't as broad as some might hope or others might fear. Plaintiffs will still be subject to the neutrally applicable rules and prohibitions in Public Health Order 20-35. They will, for example, have to enforce sanitization requirements, maintain social distancing between individuals, and not permit shaking hands. All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise….

NEXT: Conservative Commentator Candace Owens Sues USA Today and Fact-Checker "Lead Stories" for Libel

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  1. The first part reads like a big F.U. to Roberts and the rest of the SCOUTS libs.

    1. Does that mean this decision was issued by a young, strident, culture war loser nominated by One-Term Donnie?

      1. No. It means that as usual, you are unable to do anything but resort to ad hominem attacks. The last refuge of the incompetent.

        1. Those appear to be accurate descriptors with respect to the relevant judge.

          Let’s see whether his superstition-flattering position — that if a state opens a hospital it must open a church — remains in effect any longer than the virus-flouting decision of his Pennsylvania peer (young Stickman).

          If you are planning an Election Day party, Bored Lawyer, I can offer some cry-in-your-beer suggestions.

          1. Ad hominems AND lies. Truly incompetent. Try reading the opinion.

            1. ” once the State begins creating exceptions for secular
              activities as it deems necessary, then it is obligated to treat religious
              activities no less favorably, absent a compelling reason. ”

              This judge arrives at his preferred destination by citing plenty of right-wing dissents, right-wing concurrences, and right-wing blog posts while exhibiting scant respect for mainstream precedent.

              Stickman’s order lasted a few days. This one seems to deserve similar respect.

  2. These choices clarify what activities they believe serve societal interests of the highest order—primary and secondary education, convenient access to food and home supplies, and certain kinds of manufacturing.

    These are important interests—critical and necessary even. But the People, through the Constitution, have resolved that the free exercise of religion is at least as critical and necessary.

    This is great writing and gets to the heart of the matter. Like it or not, Free Exercise of Religion is a Constitutional right. Buying hamburger at your local supermarket is not.

    1. Access to food is less important or protected than attending church? Clingers have let the most recent run of right-wing judgery go to their gullible heads.

      The reckoning commences in a few months, after being precipitated in a couple of weeks.

      I am looking forward to seeing you guys up around the bend.

      1. More lying. You are on a roll.

        And don’t think we did not notice your implicit assertion that Constitutional rights can be discarded at the whim of, umm, you.

        But as I said, Trotsky’s Mexican villa is still available. Look into it, because come the revolution, they will be going after you before me.

        1. Open wider, Bored Lawyer.

          Or not. Your comfort, like the opinions of Republicans in Congress, is destined to become a diminishing concern.

    2. Of course “free exercise of religion” is a constitutional right. But, “exercise of religion” is not. The rub remains what does the modifier “free” mean?

      1. “what does the modifier “free” mean?”

        Without cost and/or without restriction.

          1. Well Josh R, that is a problem, IMO. I interpret ‘free’ as unencumbered. And I think that (free = unencumbered) is consistent with how the people at the time of the drafting of the Constitution understood this.

            1. But dontcha know. Only “Free exercise of religion” is protected.

              Religion that costs anything to participate in/with/or about, in any form is not protected. So, if you’re doing your religion in a church or temple or mosque, well, those things cost money. So, they aren’t protected. Those communion thingees cost money too. Not protected. So do those headscarf thingees. Cost money. Not protected.

              The only religion protected is that which you practice entirely in your mind, without using any physical resources or spaces at all. That’s the only “Free Excercise”.

            2. The current doctrine permits the exercise of religion to be constrained by neutral and generally applicable laws, and that strikes me as normatively correct.

  3. Henning Jacobson was an ancestor of mine; reading about his Supreme Court case is always a bit trippy. I also think he had a point.
    I lost all faith in how my state government was handling the pandemic in terms of first amendment rights when state leadership gave wide allowances for protests, but continued to ban and limit religious worship, even under similar circumstances. That should terrify people, but so far most people seem unconcerned because government edicts happen to align with their views.

    1. Everyone knows that the Coronavirus is a leftwing Democrat. It only attacks people praying and at Republican gatherings. That is settled science.

    2. when state leadership gave wide allowances for protests, but continued to ban and limit religious worship, even under similar circumstances

      “Because racism is worse than some additional deaths frok spreader events.”

      Somehow wars that have killed hundreds of millions over the millenia, not to mention eternal dictatorship, from religion-as-rallying-cry, yielding a detente in the First Amendment, has escaped their notice.

    1. Meanwhile, the crackhead son of the Democrat nominee had child porn found on his laptop and the authenticity just confirmed by the DOJ and FBI.

      Yikes-a-rooni.

      1. That’s…according to Rudy.

        Maybe don’t take him as gospel, eh?

        Actually never mind, you’ll insist it was all true regardless of how it shakes out.

        1. Do we really have time to quibble about this stuff when the Lord God of the Bible has decided to smite us with a righteousness-enforcing asteroid?

        2. Sarcastr0, the emails do not lie. The pictures do not lie. The videos do not lie. The text messages do not lie.

          Neither Quid Pro Joe nor Hunter Biden has denied the authenticity of the computer hard drive, the emails, the photos, the videos, or the text messages.

          I agree….let’s see how this shakes out. But I can understand why Brain-Damaged Biden immediately called a lid. He can put himself in legal jeopardy with one lie.

          Even if Sleepy Joe is elected, there will be a Special Council appointed to look into all of this. He will be hobbled.

          1. Delaware police ignored Giuliani’s referral, due to credibility issues.

            There’s a reason this isn’t getting traction, and it’s that it stinks. The origin is extremely suspect, the content is flaccid, and the timing is suspicious.
            Clearly *some* of the e-mails are legit. Which prevents any blanket statement.

            Maybe it’s all true, maybe Hunter is everything QAnon posits, and Biden is covering for him. I don’t trust politicians’ integrity since John Edwards. But so far this is nowhere near established, and anyone claiming it is doesn’t care much about the truth, only partisanship.

            Brain-damaged Biden is below you, especially after the debate and town hall. My Dad was a psychiatrist, so this is a bit of a button for me, but you can dislike someone without diagnosing them over the Internet.
            Did you roll your eyes at all the people diagnosing Trump with malignant narcissism or dementia? Then maybe don’t play in that dumb court.

            1. “There’s a reason this isn’t getting traction, and it’s that it stinks.”

              Give us all a break about this. The only thing here that “stinks” is that this news is harmful to the Democratic nominee, and so has to be denied no matter how much evidence there is. To the extent it’s not getting “traction” it’s because so much of the media are in the tank for the Democrats.

              I can understand your not wanting it to be true, I can understand your not wanting to admit it’s true prior to the election. But there’s no rational basis for thinking it isn’t true.

              1. Birthers sad again.

              2. I explained why it’s not getting traction, but you didn’t engage with that. Because you are well beyond facts mattering to you.

            2. The whole family is mediocre. It’s that simple.

            3. POTUS Trump is a narcissist. That is not exactly news. 🙂

              Like you said Sarcastr0…we’ll see how this plays out. But if I were BDB, I’d be very careful about what I say wrt any meetings with Chinese or Ukrainian businessmen.

            4. ‘You can dislike someone without diagnosing them over the Internet.’ Yet, by their mention, you’ve linked QAnon to anybody who thinks there is something to the Hunter Biden laptop. If you want consistency, start with yourself.

  4. . . . the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship’s religious exercise.

    That last part is there to keep reason out of it. If particular religious practices are particularly likely to spread contagion, this judge wants that conduct blessed anyway.

    Once again, if courts take judicial notice of particular religious doctrine, and then enforce its practice in violation of generally applicable laws, the courts establish religion. During a public health emergency, the justification for comparing religious and non-religious venues must be on the basis of the relative effects of each on spreading contagion. Proclaimed religious necessity for especially bad contagion management should be no part of it.

    1. You missed the point entirely. The judge is saying that activities that are particularly likely to spread contagion can absolutely be curtailed. They just can’t be allowed for secular activities and then curtailed for religious activities only on the basis that the authorities deem the activity unimportant to religious activity. It doesn’t take reason out. It takes unreason out. What’s important in a religious service is wholly a personal opinion. There is no “reason” to it.

      1. Mr. Tibbs, I guess you missed the part where the judge said the religionists, according to their own perceptions of their religious needs, can ignore any and every restriction applicable elsewhere.

        Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. . . . .

        All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise….

        That is sort of doublespeak, but leaves no doubt that there is nothing religionists can do in church which this judge will not approve. He says they are subject to the rules applicable elsewhere, except when they prefer not to be.

        1. ^ Religious bigot.

          1. ‘Religionists’ is a bit sus, but this is no more bigoted than Scalia.

            1. What Stephen doesn’t get is the Free Exercise Clause imposes what Justice Kavanaugh calls the “most favored nation” rule. You absolutely CAN shut down religious practices that spread a virus- but only if you don’t allow equivalent secular practices.

              For instance, if a state prohibits indoor church gatherings, that’s not necessarily a problem. But if it prohibits them while permitting high school basketball games with full gyms, that would be one.

              1. I’ve seen that idea discussed before, though I don’t know if that’s yet been made explicit in a SCOTUS opinion. But I do like that standard.

                1. I hope you change your mind after reading Eugene’s brief. For example, employment non-discrimination law exempts small employers. The most-favored nation rule would then require exemptions based on religious practice.

                  1. Huh. I am lazy…but I would question whether religious practice is an equivalent activity to being a small business.

                    1. Under the most-favored nation doctrine, it doesn’t matter whether religious practice is equivalent to being a small business.

                    2. I was going on Dilans’ description of You absolutely CAN shut down religious practices that spread a virus- but only if you don’t allow equivalent secular practices.

                      Again, being lazy, what’s the actual rule?

                    3. There is no rule in precedent. There are only proposed rules. As Josh Blackman has blogged, equivalence comparisons between secular and religious conduct are not part of his proposed rule. As Eugene points out in his brief, Douglass Laycock makes a similar argument. Kavanaugh does likewise in Calvary Chapel Dayton Valley v. Sisolak.

              2. The current doctrine is not the “most favored nation” rule, and Eugene persuasively argues it ought not be.

              3. Dilan, why do you say I don’t get it? I don’t see a problem with being guided by your basketball example. But that isn’t what’s going on here. The judge is saying courts must accept as specially privileged whatever conduct religionists choose to call essential to their spiritual needs. He’s saying that even if the state shuts down high school basketball games, the Church of Basketball gets to keep playing.

                1. I don’t believe the ruling goes that far. Instead, the ruling held that because the state had listed eight exemptions to mask wearing that were necessary to certain conduct, the state was then obligated to extend the exemption to whatever churches say is necessary for religious services (noting that one of the exemptions was for the person conducting religious services).

                  It’s debatable how many of those eight exemptions were justified only by a necessity to perform certain conduct. Additionally, there is likely plenty of necessary secular conduct subject to mandatory mask wearing.

            2. “Religionists,” is in the same neutral class as, “atheists.” Or, for that matter, “agnostics.”

              1. It’s nonstandard, like Mohammedans.

                Probably overdoing the suspicion of phrasing I’ve not heard before, though.

  5. Nothing says “take my argument seriously” like citations to an internet blog.

    The opinion states, “Applying normal constitutional scrutiny – even strict scrutiny, where appropriate – does not mean that the majority of actions taken by the State in response to the COVID-19 pandemic will be found invalid. As the remainder of this Order shows, “[m]any, probably even most, emergency measures will be upheld even under ordinary judicial review.” Ilya Somin, The Case for “Regular” Judicial Review of Coronavirus Emergency Policies.”

    Why is the “m” in many altered? What exactly did Somin say in that sentence?

    Somin wrote, “As Wiley and Vladeck point out, many, probably even most, emergency measures will be upheld even under ordinary judicial review.”

    Well, sucks to be Wiley and Vladeck here. Whatever it is they originally wrote doesn’t warrant a citation, but rather Somin’s paraphrase of their writing was deserving of a citation. Okay, let’s keep going down the hole on this one (something the Judge or their clerk apparently couldn’t be bothered to do); maybe we’ll end up at a Law Review article.

    From Somin’s post, I can see he is discussing “an insightful recent post at the Harvard Law Review blog, [by] legal scholars Lindsay Wiley and Steve Vladeck.” Alright, looks like we are going to journey to yet another internet blog.

    In looking at Wiley and Vladeck’s blog post, the closest claim I can find to what Somin might have been referring to is:

    Second, and relatedly, the suspension model presupposed that “ordinary” judicial review will judge government actions in crisis too harshly – and, in the process, risks handicapping the government’s response. Here, too, the coronavirus pandemic provides a useful (if still-unfolding) counterexample: Even if curtailments of liberty – from business closures to shelter-in-place orders to quarantine orders for travelers – are subjected to the normal scrutiny arising from comparable government incursions into civil liberties, they are likely to be upheld.

    If that was Somin’s source, I would have to disagree with him that Wiley and Vladeck “point out” that “many, probably even most” emergency measures will be upheld. I actually don’t see any reference to “many” or “most” in Wiley and Vladeck’s claim. The terms “many” and “most” are graded quantifiers, which express approximate quantity on a relative scale. If the part of Wiley and Vladeck’s post I reference is what Somin was using, then he turned “likely” into two graded quantifiers, which the original authors did not see fit to use.

    So, why didn’t the Judge (or the clerk) just go one link deeper and use Wiley and Vladeck’s original claim? Was their language not strong enough to support the conclusion the judge wanted to reach? Why did the judge decide to excise the beginning of Somin’s sentence, in which he indicates that what he wrote was actually said by other writers?

    Most importantly though … who really cares (well maybe Wiley and Vladeck, since they got shafted on their citation)?! Readers are not going to go digging through opinion citations, and law bloggers clearly have an incentive (judicial citations) to reword the work of others.

    Overall though, I give the research for this judicial opinion a failing grade. But, I give Somin a high grade for his strategic repurposing of other people’s writing, leading to judicial citations, and thus boosting his professional reputation and CV.

    [I’m crossing my fingers hoping my comment is cited in a future judicial opinion]

  6. But the People, through the Constitution, have resolved that the free exercise of religion is at least as critical and necessary. So Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion.

    Finally!

    Too bad this judge isn’t a jurist in the People’s Republic of NJ.

    1. I know you like this conclusion, but it conflicts with Employment Division v. Smith

      1. Josh R…Yep, I hear you. And yes, I believe this judge has ruled correctly. To your point, perhaps Employment Division v. Smith needs to be re-visited.

        1. Lower court judges shouldn’t be doing so. SCOTUS had been asked to re-look at it in Fulton v. City of Philadelphia, Pennsylvania. Sadly with Barrett on the Court, there may be five votes to either outright reverse or effectively neuter. As Eugene put in his Fulton brief

          the final calls on what constitutes “liberty” and on when exercise of liberty unduly harms others must therefore be made through the political process. Liberty writ large may not be enforced by judges as a matter of constitutional command. The Free Exercise Clause should therefore not protect claims of liberty of action, grounded solely in the religious motivation for one’s actions, against the considered judgment of the democratic process

          1. “Sadly with Barrett on the Court, there may be five votes to either outright reverse or effectively neuter.”

            I gather you are referring to the period November 2020-April 2021. By May, a Justice Barrett likely would be part of a minority bloc on the Supreme Court.

  7. “The court does not doubt that the State made these decisions in good faith…”

    I do say these decisions are made in bad faith: It is well known among virologists that enshrouded-RNA viruses such as SARS, MERS, influenza, and this one are moderately sensitive to humidity. In fact, a Mayo clinic study found that raising school humidity to 40% decreased influenza incidence by a factor of 2.3 (https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0204337). And Homeland Security and others confirm that this virus has the same vulnerability to humidity.

    However nowhere do I see these politicians encouraging the use of humidifiers in public buildings, a measure far less invasive than those they are imposing, as well as arguably more effective. QED.

  8. Oops, that should have been 48%

  9. The same leftists would be defending free exercise if it was Moos-lims.

  10. I’m of the general opinion that these restrictions specific to religions services are poorly written. Many of the secular examples cited are not really comparable. It would I think be more persuasive to set up classification of truly comparable activities then provide exceptions for specific activities. Of the places listed in the article schools are the only places I think are mostly comparable and schools are not really that comparable.

    But suppose the order had set up a category for Places of Assembly with Fixed or Temporary Seating which would include but not limited to places of worship, movie theaters, concert halls, auditoriums, large meeting rooms, sports venues and the like with uniform standards of for this use and possibly some exceptions.

    Such systems already exist and have existed for over a century.

    The State of Colorado has adopted the 2018 International Building Code for State Buildings and it includes Use and Occupancy Classifications – Group A is Assembly, and includes all of the uses I listed above including churches and places of worship plus many more.

  11. Great news! Who’s going to prison and for how long?

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