The Prohibition on Carrying on the Sabbath Makes it Virtually Impossible for Jewish People to Worship Outside

California's policy shows a lack of awareness about how Jewish people pray.

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I am still steamed about Judge Bernal's decision in Harvest Rock. He found that California's absolute prohibition on indoor worship was permissible because people could still worship outdoors, without any numerical limitations. I've already chronicled how this ruling ignores the elements: it is cold and noisy outside. Here, I'll address an important religious objection.

During the Jewish Sabbath (from sundown Friday to a bit after sundown Saturday), there are 39 categories of prohibited "work." One of these prohibited acts is carrying. The Orthodox Union offers this concise description:

This category absolutely forbids all carrying in the street. Even such trivial things as a key or a handkerchief must be left at home. Certainly pocketbooks, purses, wallets and key-chains may not be carried. The only thing one may carry outdoors are things that are actually worn.

This prohibition means that Observant Jews cannot carry prayer books (siddurs) outside. I suppose a person who has the entire prayer service committed to memory can pray in a park–as he dodges a frisbee. But for everyone else, they are stuck. Observant Jews  cannot carry outside the synagogue the Torah–the sacred scrolls read during the Sabbath. It would be possible to bring a Torah scroll to a park, and leave it there overnight. But I would not recommend such a risky activity. Rabbis cannot even carry notecards with a sermon. It is impossible to carry bread and wine outside to perform special blessings. Observant Jews cannot carry anything outside during the sabbath, other than the clothes on their back.

California's ban on indoor worship means that Jewish people cannot pray outside.

Recently, an LDS friend wrote with a similar note:

In Mormonism, ordinary Sunday services can be held anywhere, including over Zoom, which most congregations are doing these days. But the most sacred rituals—including weddings—can only be performed inside one of the specially designated temples. The building, after its special dedication service, is deemed one of the few places on earth where the ceremonies can be held. A state order that they be held outdoors is effectively saying that they can't be held at all.

I'm sure there are other examples from other faiths.

To this date, Judge Easterbrook was the only judge candid enough to explain his reasoning: religion simply isn't that important, and people can pray over Zoom.

The Supreme Court should adopt Justice Kavanaugh's reasoning, and explain that the free exercise of religion is a most-favored right. It is important, no matter what the Governor of California thinks.

If the Supreme Court enters an injunction today, Christians will be able to celebrate Christmas, and Jewish people can once again worship on the Sabbath.

Update: Several people wrote in to ask about eruvs. This issue presents a very difficult question, which I sought to avoid. Suffice to say, many Jewish people are willing to carry outside the home, so long as they are within a boundary known as an eruv. I won't even try to explain what an eruv is here, because I will inevitably omit an important point. (Wikipedia has a decent explanation). I deliberately avoided writing about eruvs in my initial post for a simple reason. Some Jewish people will not rely on eruvs, which are seen as something of a shortcut. And eruvs are not always present in all areas. And, even where an eruv is present, if the eruv is down for one reason or another, people cannot rely on it. No, the eruv does not provide a defense to the District Court's opinion.

NEXT: Ninth Circuit Denies Injunction in South Bay. Next Stop SCOTUS.

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  1. Thank you for this post.

  2. Point of information: Carrying is permitted inside an enclosed area, if it is either owned by the same person, or if an “eruv” has been performed, joining all the property owners within the enclosure into a single communal entity.

    Thus there is no religious reason why a synagogue can’t hold outdoor services, if it has access to an enclosed area that is attached to the synagogue. In California, with its car culture, most synagogues have an enclosed parking lot that could be used. (Driving is forbidden on the Sabbath, but most synagogues are used during the week too, and in most of CA that means people drive there and need parking.)

    And the Jewish neighborhoods of LA are enclosed within notional partitions and joined in an eruv; not everyone is comfortable relying on it, but the vast majority are, which means they can carry anywhere within the enclosure.

    This leaves your objection intact for those synagogues that don’t have a parking lot, or whose parking lot is not enclosed, and that aren’t in an eruv they approve of. In addition to your general question, what to do if it rains.

    1. Thanks to this, I did some research and discovered (though I really oughtn’t have been surprised) that Houston itself has several eruvs. I will have to look to see if they have the filaments that Manhattan has.

      Question: is the state essentially forcing the observant to employ shabbos goyim, and how would that play into any legal proceedings?

      1. You don’t need a shabbat goy to have an eruv, but eruvim are very complicated concepts, and there are many differing ideas on how to properly structure them. Moreover, there are places where the community refuses the creation of an eruv (like Palo Alto), which significantly limits the availability to carry outdoors on the Sabbath.

        All this is entirely besides the point. Under no circumstances should a church-separated government be directing people toward *any* religious position whatsoever.

        1. You can put an eruv around a parking lot, or a front lawn.

          1. And how exactly would you get to that parking lot?

            1. You attach the string to the side of the building, or you go the whole way around the property line.

              1. yes, that works for your own parking lot, or your own front lawn, for which this entire thing is not an issue, as you can pray at home. But if you want to get from your home to your synagogue’s parking lot, how do you suppose that will get done?

                1. Since driving is always prohibited, you get there the same way you always do.

                  1. Which requires an eruv in order to carry. So back to square one: how does putting an eruv around your own parking lot or front yard solve the issue at hand – of getting to your synagogue while carrying, without an eruv?

                2. You walk. Same way they have been getting to shul on shabbat for two thousand years.

                  1. But then you can’t carry, which is the issue here.

                    1. They don’t. Everything they need is already at the shul.

                3. Have you been to hasidic parts of new york city? It’s all an eruv

                  1. Crown Heights around the Chabad area does not have an eruv.

                4. ” But if you want to get from your home to your synagogue’s parking lot, how do you suppose that will get done?”

                  I don’t understand the question. Assuming there’s no eruv enclosing both your home and the synagogue, you walk from home to the synagogue, without carrying anything, just as you always do. The issue here is how outdoors services are to be held, since of necessity that involves carrying things from inside the synagogue to the outdoor space, and within that outdoor space. And the answer is that you hold them in the synagogue parking lot, which you can easily enclose if it isn’t already. (No eruv necessary, since it’s all owned by one entity, the synagogue. Just a proper enclosure, which doesn’t involve very much.)

      2. I was going to say that Gentiles could carry the stuff for observant Jews, and didn’t know that was already a thing.

        Learn something new every day.

    2. It is common, in neighborhoods where many orthodox Jews live, to create an eruv encompassing the entire area.

      The prohibition on driving means that orthodox Jews tend to live near the synagogue, so this is pretty easily done.

  3. Why does this matter? Legal issues aside, surely Jews as much as other people would want to do their part to avoid the spread of a dangerous disease? Or is your religion more important to you than other people’s health?

    1. There was a time in this country when things like this weren’t said.

    2. We do. We just don’t accept your superstitious belief that our holding services indoors, with appropriate distancing and precautions, is more likely to spread disease than the activities you find important enough to allow.

      1. It must be great if your understanding of science always neatly conforms to your convenience. I wonder, does gravity also take the day off when you trip?

        1. If it was a matter of science, California wouldn’t have a “Hollywood exception” to the lockdown rules.

          The issues is that religious activity is treated more harshly than comparable secular activity.

          1. 1. Several big mansions in Hollywood have had their power shut off for holding gatherings.

            2. The fact that people in Hollywood are sometimes stupid and reckless doesn’t justify everyone else being stupid and reckless.

            1. The fact that governors follow sciencey superstitions is a good reason to tar and feather them.

              Lockdowns do nothing to relieve the pandemic. Read the science itself, not what politicians say is the science.

            2. I wasn’t referring to individual stupid celebrities not observing universal rules.

              I was referring to Newsom’s official legal exemption to the most of the social distancing rules to the entertainment industry [and his disregard for his own rules and need social distancing during his French Laundry escapade].

              Hollywood is apparently now an “essential industry” which seems to be defined as politically important to the elected leadership and nothing to do with science. This same political nonsense is the reason why courts struck down a number of restrictions in NY and NYC because our leadership had a “BLM exception” to social distancing.

              Simply, let’s indeed follow the science and treat comparable activities in a like manner, and not treat religious observance more strictly without science actually proving it’s required, all despite religious observance having even greater protection under our Constitution.

              1. Branford, your perfectly reasonable standard of comparability is one Blackman rejects. He wants categorical preference for religion.

                By the way, science has already proved—at least to my satisfaction—that religious observance needs tight controls. So has the practical observation that under the influence of religion, many people tend to be reckless about flouting masking and distancing requirements.

                Absaroka provided a link to Scientific American which you might want to take a look at.

                1. “By the way, science has already proved—at least to my satisfaction—that religious observance needs tight controls”

                  Science can “prove” no such thing. Anyone who says so has no inkling of what science is.

                  But please provide any links to research. One can always be enlightened.

                2. “Branford, your perfectly reasonable standard of comparability is one Blackman rejects. He wants categorical preference for religion.”

                  You are entitled to knock Blackman. But frankly, the more intersting question to me is whether California’s current regime is Constitutional, not whether Blackman’s standard makes any sense.

                  Under Branford’s “perfectly reasonable” standard, the answer is No. I am more disturbed by the largest state in the union (by population) violating the Constitution than one law professor being off on his legal formulation.

                3. As Bored Lawyer points out, you seem be not distinguishing “is” from “ought”.

                  1. Ducksalad, nope. Branford has the right idea. Determine what works best to save lives, and make everyone do it. Adjust government supports to fill in gaps as needed. The solution to reckless behavior by some cannot be to demand (and license) reckless behavior by all.

                    1. Stephen Lathrop
                      Here in lies the problem. What if “what works best to save lives,…” is require testing for everyone who leaves their homes, and anyone who has tested positive cannot leave their home, nor can anyone in said home leave for the given timeframe?

                      No testing available? Sorry you can’t leave your home.

                      Frankly, that really is what would work best to save lives. Is that what you’re advocating?

                    2. 3ducerist, seems to me you have found a roundabout way to suggest there is something wrong with quarantines to save lives during a public health emergency. I do disagree with that.

            3. 1. Several big mansions in Hollywood have had their power shut off for holding gatherings.

              2. The fact that people in Hollywood are sometimes stupid and reckless doesn’t justify everyone else being stupid and reckless.

              That was a big ol’ *** WHOOOOOOSH **** for you, wasn’t it?

        2. The science on COVID is still in its infancy – we don’t even understand what represents an infectious COVID contact or what viral load is needed to transmit an infection.

          People who don’t understand how science works like to use it as a cudgel against the people, much like religion was used as a pretext for burning witches not too long ago.

          1. Milhouse is the one making scientific pronouncements here.

            1. No. Politicians are the ones lying about what the science says concerning lockdowns.

              1. Pandemic management tips from half-educated, bigoted, right-wing clinger are always a treat.

                1. Empty ad hominem attacks are not. But they are the norm with you.

                  1. Stick with the disaffected, science-disdaining, superstitious, obsolete right-wingers, Bored Lawyer. It suits you.

                    1. RALK once again proves the truth of the Bible. Specifically Proverbs 26:11

                2. Another treat: pandemic management regulations from government agents unable to cite any relevant experimental or epidemiological science in support, or even a successful track record. Watching our Leftists sputter and stammer is likewise entertaining.
                  https://www.youtube.com/watch?v=V83JR2IoI8k

              2. They are not lying, they are making policy decisions based on incomplete information that you may or may not agree with.

                That is what we elect them to do.

            2. ‘With appropriate distancing and precautions,’ he was clear, and you’ve misrepresented what he said to fit your bias, yes? Would it not be easier to simply say you dislike religion?

        3. The current California rule, in Tier 1 counties, bars all indoor worship, but allows up to 25% capacity in shopping malls. Those both presumably apply where the persons inside wear masks and maintain social distancing.

          Please provide any scientific research or support that under those conditions, shopping malls have less of a risk of spreading COVID than do houses of worship.

          If you cannot, then you are simply engaged in ad hominem argument and/or anti-religious bigotry.

          1. California claims (see “Why can some activities and businesses open while others have to stay closed”) that shopping malls have a more limited time exposure, fewer physical interactions and no singing.

            1. Yes, I get that. My question is what scientific evidence supports that? Or is it just guesswork that those factors result in lower risk? (Note not no risk. So the State of California is willing to accept some risk from having shopping malls open at 25% capacity.)

              And frankly, I question those premises.

              More limited time exposure? Maybe, but lots of people spend significant time in shopping malls.

              Fewer physicial interactions? That is taken care of by requiring social distancing. I go to a tent synagogue three times a day, and apart from my son who lives with me, I have zero physical interaction.

              Singing? You can have worship without singing. Not to mention you can wear a mask.

              So these arguments appear both flimsy and unsupported by anything more than guesswork.

              1. Are the courts equipped to assess the scientific evidence? Or, is the mere existence of some scientific evidence in support of the state (even though other evidence may disagree) sufficient and the courts should otherwise stay out?

                Perhaps the state can enforce no singing and limited physical interactions in houses of worship. But perhaps the state should be afforded some deference in categorical bans rather than having to micromanage restrictions.

                1. Courts assess scientific evidence all the time. It’s called expert testimony.

                  First step is the state has to come forward with some hard evidence, not guesswork, that justifies is discrimination against religion, which this is. So far, I see none.

                  Second, the state has to explain why it has to resort to “categorical bans” instead of enforcing restrictions like mask wearing and social distancing, which it relies upon to allow things like shopping malls. That is what the “narrowly tailored” part of strict scrutiny relates to.

                  To put it differently, the State of California feels confident that shopping malls will adhere to, or will be made to adhere to, safe distancing and mask rules. Not so houses of worship. It better have a good justificaiton for that difference. And more than just, “we know those religious rubes don’t follow the rules, as opposed to shopping mall owners who are well known to be scrupulously law abiding.”

                  1. Courts assess scientific evidence when one private party sues another private party. Should the courts assess dueling scientific expert-testimony when the plaintiff claims the state is violating the Constitution?

                    I doubt California would have difficulty in providing evidence that the virus is more easily transmitted in longer exposures of time, with physical contact and singing.

                    I agree with you California will lose if strict scrutiny applies. I disagree that strict scrutiny applies.

                    1. What I hear you saying in your last couple of posts is that if a governmental agency says “Science, derp!” in the context of a restriction of essential liberties, a court can’t second-guess it. Ever.

                      That can’t be the right result, regardless of the cutesy doctrinal path you take to get there.

                    2. Life of Brian:

                      I am not arguing that courts should automatically accept scientific evidence provided by the state when strict scrutiny applies. But, I am saying there should be some level of deference when that evidence is part of the analysis in determining what level of scrutiny applies (in this case, whether the regulation is generally applicable).

                    3. Courts assess scientific evidence when one private party sues another private party. Should the courts assess dueling scientific expert-testimony when the plaintiff claims the state is violating the Constitution?

                      Most Constitutional challenges of the type we are discussing are done in civil actions. Where the same rules of procedure and evidence apply. So, yes.

                      I doubt California would have difficulty in providing evidence that the virus is more easily transmitted in longer exposures of time, with physical contact and singing.

                      Which is not the question. The question is whether assuming that masks and social distancing are used in both, are shopping malls less risky for contracting COVID than houses of worship.

                      I agree with you California will lose if strict scrutiny applies. I disagree that strict scrutiny applies.

                      There we disagree. To respond your comment below, whether strict scrutiny applies is a question of Constitutional law, which is determined by examining the statute or executive order as drafted or as applied. Science has nothing to do with it.

                    4. Bored Lawyer:

                      Perhaps we agree that deference should be given to the state’s scientific experts if rational basis review applies, but not if strict scrutiny applies. However, perhaps science plays a part in determining what level of scrutiny applies because science helps determine whether religious worship is comparable to retail shopping, and thus whether the regulation is generally applicable. If so, how much deference should be given to the state’s experts?

                    5. But, I am saying there should be some level of deference when that evidence is part of the analysis in determining what level of scrutiny applies

                      See my above comment re cutesy doctrinal paths. Word salad aside, you seem to be suggesting that magic words should suffice (some level, sometimes, whatever) to effectively render a branch of government unreviewable. No.

                    6. Life of Brian:

                      Perhaps you have invested in straw because you are quite good at building straw men. Per my comment responding to Bored Lawyer well below this sub-thread, I think the state should lose in some of these cases.

                    7. Life of Brian: Word salad aside, you seem to be suggesting that magic words should suffice (some level, sometimes, whatever) to effectively render a branch of government unreviewable.

                      It cannot be correct that all branches of government are always reviewable by the courts. Plenty of government powers are explicitly unreviewable constitutionally. For instance, the courts cannot review the power of congress to declare war. The pardon power is nearly beyond review, and the impeachment power completely so. Both houses of congress enjoy unfettered power to make their own rules, which has proved a consequential power indeed.

                      So the initial question in this case is whether there is a legitimate basis for court review of the emergency power means California has chosen to pursue the unquestionably legitimate end of ameliorating pandemic damage. And that question is complicated by recognition that the right to religious exercise is implicated.

                      I am not a legal expert. Nothing I say should be taken as insistence that the law as it is decides these questions one way or another. That said, the logic points toward permitting restrictions on religious exercise, even if those restrictions compromise constitutional rights. What follows is my take on the logic.

                      First, it is in the nature of emergency powers that they compromise rights. That is what makes them emergency powers instead of routine powers. To demand otherwise is to demand the abolition of emergency powers generally, including in cases of public health emergencies. But the legitimacy of such powers has long been conceded by nearly everyone, including the courts.

                      Thus, the objective of ameliorating a public health emergency is conceded as a legitimate end for lawmaking under the constitution. With that point made, the question narrows to whether courts have power to overturn on the basis of means otherwise legitimate laws drafted to give effect to those ends. Your insistence on strict scrutiny, of course, is based on a demand that courts declare the means chosen to be unconstitutional, even though the ends are legitimate.

                      Against your reasoning is the fact that there is no evidence of animus against religious exercise in the way the emergency powers were promulgated, except for inferences drawn about allegedly disparate treatment of religion—and those inferences are disputed. Were it the case that court review normally extended not only to the ends of legislation, but also to the means chosen to give effect to the legislation, then your point would be made. But that is not the normal case. The normal case is that courts should defer to legislatures about means, when legislatures are pursuing constitutionally legitimate ends—as in this case.

                      So your case narrows to one question. Is the right of religious exercise in this instance so burdened that normal court review of emergency powers—which, remember, inherently compromise rights and are legitimate anyway—must be set aside to protect rights. That implies a contradiction.

                      That implied contradiction in the question must be a weighty factor in the analysis. To set it aside seems to me to require extraordinary evidence—specifically, evidence that the means chosen to ameliorate the public health emergency cannot be justified in fact, are merely pretextual, and intended to provide cover for a constitutionally prohibited attack on religious exercise. Were that a provable case, then courts would have a duty to defend religious rights and set the emergency powers aside.

                      But however plausibly inferences can be drawn from apparently disparate treatment of religious exercise, those do little or nothing at all to weaken the case made on other grounds in favor of emergency powers to ameliorate a pandemic which has already killed hundreds of thousands, and is daily worsening. Instead, there is overwhelming legitimate evidence for the means chosen to pursue the constitutionally legitimate end of pandemic amelioration.

                      So the argument shows that defenders of religion offer an entirely separate defense—a defense which does not at all address that evidence—of a right to religious exercise which is said to transcend even the notion that emergency powers by their nature suspend rights. Which leaves the contradiction in place.

                      A defense of religious exercise which has no power at all to undercut evidence for emergency power means is thus left with no argument except that emergency powers must be inherently illegitimate and unconstitutional in every instance. In short, religious defenders are left to argue that amelioration of a public health emergency by emergency powers is an end generally prohibited by the constitution. Accordingly, they say, emergency powers must be overturned on that basis.

                      That has not been done previously. The courts should not do it now.

              2. ” Yes, I get that. My question is what scientific evidence supports that? ”

                The scientific and evidentiary standards of superstitious, birther-class right-wingers are always worth a laugh or two.

    3. It’s because it’s none of the government’s business to dictate the manner of religion. It’s a simple concept. Anyone pretending misunderstanding (such as politicians and some commenters) is a lying statist (but I repeat myself).

    4. The answer is yes, the religion is more important then health. I witnessed this first hand. Two weeks ago I went to services (which was up to now was one outside). I got there and they were all inside without masks. I refused to go in and stood outside for the entire time. What I did not know then was that at least one of them was actively contagious with covid. They got it, I did not.

      1. Without a citation this is anecdotal, and quite frankly, coming from you, it is suspect.

    5. A totalitarian explains his reasoning.

    6. That comment is bigoted, ignorant and intolerant. Maybe not as bad as RAK’s usual tripe but is that really the standard you want to shoot for, Martinned?

      1. Maybe not as bad as RAK’s usual tripe but is that really the standard you want to shoot for, Martinned?

        Given the idiocy he regularly spews, I’m not sure on what you’re basing the assumption that standards have any meaning to him at all.

    7. Congratulations, you’re the first, no surprise, to take this ignorant tack, and to try to claim that Jews don’t care about the safety of other people. Other peoples’ liberties can safely exist, even and especially the ones you are bigoted against. As has been stated before, if masks and social distancing are effective, religious services are not more risky than other social activities. Your bias hinders you, as always.

      1. ‘Superstition improves belligerent ignorance and lethal recklessness’ is just as strong an argument as ‘a clock of superstition improves bigotry, or makes it something other than bigotry.’

        No wonder conservative clingers get stomped by better people in the American culture war.

      2. Hank, anything is possible, if it happens. There are numerous examples of extensive viral contagion consequent to religious services. That catalogue dates back to the early stages of the pandemic, and keeps growing. Possibly, you do not pay much attention to mainstream media, and so remain unaware.

        Also, medical investigators have said religious services are more dangerous than many other social activities, for two reasons. First, because religious services tend to be indoor, tightly-packed, long-duration events—more so than the others. Second, because there are among religionists more than a few who suppose they ought to be privileged by their religion to flout mask requirements, and social distancing requirements.

        Whether or not those characteristics make religious services more risky than this or that other social activity is pointless to argue. Those characteristics undoubtedly do make religious services dangerous enough to be legitimate candidates for regulation. Of course, substantially similar secular activities should be regulated alike, also without regard to relative rankings. The point is contagion, not some social taxonomy.

    8. Religion(s) seem to have a lot of strange rules. What is the percentage of compliance with the “no-carrying” rule? I don’t presume to tell anyone how to practice their religion. If carrying a prayer book outside is worse than not attending service and not praying, the religion(s) must have a very good reason for such to be the case. It would be really embarrassing to wind up in hell for carrying a prayer book, so why risk it?

      1. Choose reason. Every time. Be an adult. Or, at least, try.

        Otherwise, you might wind up an ostensible adult who believes fairy tales to be true.

  4. The Supreme Court should adopt Justice Kavanaugh’s reasoning, and explain that the free exercise of religion is a most-favored right.

    Josh Blackman comes right out, and demands establishment of religion, enforced by the courts, with special legal protections for the particular practices of every religion. As for legal protections for Americans who profess no religion, those take a back seat. Non-religious Americans must accommodate the religionists, every time, including at the cost of all peoples’ health or lives during a public health emergency.

    Blackman says, “explain,” but he means,”order and establish.”

    1. Kavanaugh’s standard is not an establishment of religion.

      1. Dilan, perhaps Blackman does not understand Kavanaugh. I have no idea whether you do, nor do I really understand what either you or Blackman are referring to. I haven’t been following Kavanaugh.

        But if Blackman is right, and Kavanaugh wants some kind of, “most-favored right” status for religious exercise, then that is establishment of religion. How could it be otherwise? Every other right would be disparaged to exalt that one. Under a doctrine like that, it is a short step, or no step at all, to outlawing speech critical of religion.

        Even if Kavanaugh intends something more limited, you could not put a thing like that in place without empowering religionists to push the nation down that slippery slope. The pressure would be relentless—and absent some correction which could be sought only amidst desperate upheaval—the pressure would be successful. In America, it has always been the case that sizable minorities who are cohesive and especially keenly motivated get their way.

        However, as described, this is not merely establishment of religion. It is worse. It is establishment of religion decreed and enforced by judicial supremacy—the malign combination of doctrines which never ceased to roil Europe during the entire interval from the Roman Empire until the early part of the 20th century.

        America’s founders were reacting against exactly that combination when they wisely set this nation’s posture on religion against establishment. Religious Freedom Restoration acts have already gone too far toward undoing that wisdom. They ought to be reined in. Choosing instead to add anything like a preference for religious rights above others would be lunacy.

        1. “Dilan, perhaps Blackman does not understand Kavanaugh. I have no idea whether you do, nor do I really understand what either you or Blackman are referring to. I haven’t been following Kavanaugh.”

          Translation: I have no idea what Kavanaugh’s standard is, but I know it violates the Establishment Clause.

          Really, this is self-satire.

          1. It’s par for the course for Lathrop; he’ll rant for dozens of posts about a court decision on fair use and then when cornered eventually admit that he really doesn’t know how the courts define fair use, but it doesn’t match what he thinks fair use should be. Ditto for defamation.

            1. Ditto for nearly every subject about which he prattles.

          2. Bored Lawyer, self-satire by you. Who cares if I know what Kavanaugh’s standrd is? I didn’t say I knew what it was. I said I did not know.

            I criticized Blackman’s statement, based on his own words, which I quoted. Blackman is the one who attributed, “most-favored right,” status to Kavanaugh. I said explicitly that my reasoning depended on Blackman being correct about that, without saying he was. Blackman made a sweeping claim about Kavanaugh. I actually expressed some implied doubt about whether Blackman’s claim was accurate, saying, “Even if Kavanaugh intends something more limited . . .”

            However, I suspect you wouldn’t be making this strained attack on me if you did not suppose Blackman was at least somewhat correct about Kavanaugh.

            1. Edit button please.

    2. You have no idea what “establishment of religion” actually means, do you?

      1. Brett, I have little doubt you are itching to give me some cramped little interpretation about taxing people to support a church. Save it, I know that history better than you do.

        1. You might or might not be confused about establishment of religion, but I think you don’t understand the phrase “most-favored nation”.

          It doesn’t mean that right is exalted over all others. It means religious establishments or activities can’t be treated less favorably than any other establishment or activity, unless there is a reason to distonguisn them that survives strict scrutiny.

          E.g. the government can shut down clothing shops but leave bars open, because selling clothes isn’t a constitutional right. But if they leave bars open, they must leave churches open, because that’s exactly what freedom of religion means: you can’t be put under special restrictions because you choose to worship rather than go carousing.

          1. And importantly, it doesn’t require MORE favorable treatment for religion. So let’s say a governor closes all the schools because of the pandemic. Under Kavanaugh’s test, such an order can, consistent with the Free Exercise Clause, close all the private religious schools as well as the public and private non-religious schools. It doesn’t establish religion because it does not guarantee more favorable treatment. You could argue that a rule that closed all the non-religious schools but left the religious schools open, that would be an establishment of religion. But Kavanaugh’s test, properly construed, shouldn’t require that.

            1. According to ducksalad, the most-favored nation standard concludes, “if they leave bars open, they must leave churches open.” So, why wouldn’t it also be the case if bars are open, then religious (but not secular) schools would have to be open?

          2. By that standard, because small employers are exempt from anti-discrimination law, strict scrutiny should apply to employers who have a religious objection to hiring gay people. That principle effectively reverses Smith.

    3. While I strongly oppose Kavanaugh’s doctrine, it no more respects an establishment of religion than RFRA does. I believe Sasha Volokh thinks RFRA facially violates the establishment clause, but a unanimous SCOTUS said it (technically, RLUIPA, a close cousin to RFRA) did not in a unanimous opinion written by Ginsburg. The decision left open what applications might violate the establishment clause.

      1. Josh R, how can you predict what applications Kavanaugh’s doctrine might deliver? Perhaps more to the point, if applications which do violate establishment result, how would anyone be able to roll them back? We aren’t talking about politics here. We are talking about a new doctrine imposed by judicial supremacy. That former unanimity of the Court is not a reassurance, it is a warning. Time to be careful.

        1. Impermissible applications would be rolled back by the courts after an affected party sues.

          1. Josh, so you think judicial supremacy is not a problem, or even a potential problem?

            1. Of course the judiciary can issue bad rulings that can only be overcome by a constitutional amendment. But given what constitutes a “bad ruling” is a matter of opinion, I know of no better alternatives.

              1. Josh R, here is a better alternative. It is not mine. It is from Chief Justice John Marshall. I will paraphrase (read the decision in McCulloch v Maryland to see if I get it right):

                Legitimate judicial review gauges conformance to constitutionally mandated ends sought by legislation. Some ends are constitutionally approved, others are forbidden, and about others the constitution remains silent. Laws which attempt to govern ends the constitution does not approve can legitimately be overturned by the courts, and the courts have a duty to do so.

                What judicial review does not legitimately extend to judge or constrain is the necessity of particular means for effecting legislation, when the ends are not in question. Questions of necessity the constitution leaves to the legislature, according to Marshall.

                End of Marshall summary.

                I suggest the notion of strict scrutiny has run wild. It is commonly applied to invalidate means by which the legislature seeks to give effect to legislation which is otherwise constitutionally permissible. Every time you see a decision by the Supreme Court complaining that a legislature has not supplied sufficient proof to justify means which are under challenge—even though the ends sought are constitutional—the Court is likely overreaching, at least with regard to Marshall’s view of the standard.

                If courts can determine without limit both the ends and the means allowed to the legislature, you get judicial supremacy. When courts venture to judge whether particular laws are necessary, or demand proof to show that they are necessary, this is what Marshall had to say in McCulloch v Maryland:

                But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

                To insist that a court can invalidate a law as unnecessary is to make the court the supreme judge not only of what the law is, but also of what the policy may be. Make it a point to notice, that is happening a lot in recent court decisions.

                Demands for strict scrutiny too often come from parties who insist courts should overturn legislative determinations that laws are needed. When they do that, those parties tend to argue that they favor an, “as applied challenge,” but broaden that term beyond its legitimate scope. By Marshall’s reasoning, to be legitimate, an as-applied challenge must prove the case that the application challenged seeks a prohibited end under the constitution, and not merely demand that the legislature prove a necessity for the law.

                Alike with other branches of government, courts’ powers must be limited too.

  5. During a pandemic which involves a highly contagious, potentially-deadly pathogen like COVID 19, Pikuach nefesh might well take precedence over the rule against carrying, at least for many Jews, including at least some very observant ones.

    For those who don’t already know this, “Pikuach nefesh” refers to the rule in Jewish law which says that preservation of life takes precedence over all other mandates from the Torah. Now, the principle is usually invoked when a specific, identifiable life is at stake, but, that’s kind of flexible. For instance, a Jewish surgeon, unlike a non-life-saving professional, can be on-call during Sabbath (if he can’t avoid it) and can carry his phone in case he’s needed at the hospital, and answer it if called, and travel to the hospital, and participate professionally in any life-saving procedure, even among Jews who recognize the prohibition against a non-medical person against non-medical people doing any of these things. He does not know whose life is at stake or even how much danger the person is in. So as I say, there’s some elasticity of interpretation in Picuach nafesh; one could also argue that anyone in the community who has any of the risk factors — elderly, immunocompromised, perhaps even obese members of the community (yes, obesity is a serious risk factor for COVID 19, as my mother keeps reminding me) all these people could be considered to be specific persons whose lives would be protected (partially, but all protection is partial) by refraining from indoor worship.

    As far as the elements go, Jews of many stripes have managed to worship under much worse circumstances than California rain! (Ask Eugene about that.) Mormons, too. I don’t know all that much about them (although I do know that they don’t like to be called “Mormons”, since that term was coined by their enemies) but they were pioneers who migrated by wagon train during the 1850s, from the Midwest to Salt Lake Valley in Utah. The lockout will likely not last longer than it took to complete that journey!

    1. 1. Pikuach nefesh would not justify carrying outside an enclosure to hold services, since they aren’t saving anyone’s life.

      2. Pikuach nefesh always requires that there exist some individual, potentially identifiable, whose life is currently in danger (חולה לפנינו) and needs saving. You don’t need to know who that person is, but you do need to know that they exist. Pikuach nefesh does not apply to future risks to hypothetical people who are not currently in any danger.

      1. RE: “Pikuach nefesh always requires that there exist some individual, potentially identifiable, whose life is currently in danger (חולה לפנינו) and needs saving. Pikuach nefesh always requires that there exist some individual, potentially identifiable, whose life is currently in danger (חולה לפנינו) and needs saving.”

        So, are you saying that Pikuach nefesh doesn’t justify exceptions to the other rules of Torah if you make the exceptions in order to prevent, or reduce, a risk which affects a non-identifiable group of people, or, everyone? Suppose, for instance, that the country were to become infested with a new species of poisonous snake whose venom were very toxic, but for some reason not toxic at all to anyone who had recently eaten a generous helping of pork. So eating pork confers protection, but you have to eat it before getting bitten; if you wait until after you get bitten and then eat pork, the pork doesn’t do any good at all. The snake is present at more or less the same population density all over the country. So you can’t predict that any particular, potentially-identifiable individual is gonna encounter the snake, get bitten, and face danger, and until he does, he won’t be facing current danger; we’re all only in danger of facing current danger, not in actual danger. But you can remove the risk of suddenly facing the then-current danger in the future, by eating pork every day. Are you gonna say that we have to eschew the protective but prohibited pork, and live with this entirely-preventable risk, because it is only a risk of some of us having to face danger, not a current danger to a specific, potentially-identifiable individual? How much risk, of facing how grave a danger, would pentateuchal law require us to put up with, for the sake of the distinction between חולה לפנינו and בסכנת חולה?

        1. Oops, for some reason the first sentence is doubled. I need to hire a proofreader. Or, is there a way I can correct these posts?

      2. Pikuach nefesh does not apply to future risks to hypothetical people who are not currently in any danger.

        ISTM that if there is a “future risk,” to someone, then that person is in danger, at least if the threat is near.

        Suppose the river running through a town threatens to flood, and the mayor asks all able-bodied residents to assist in piling up sandbags or taking other preventive measures.

        Would participating in that effort justify violating the Sabbath?

        1. Your flooding river example presents an immediate threat to the entire town. Not sure what your point is.

          Millhouse’s better argument is that carrying a prayer book to a synagogue (even an outdoor one) does nothing to save anyone. If you have no other choice, then stay home and pray there.

          (Blackman’s whole post is silly. Even if there is no eruv in town, the congregation can set up an area with an eruv where they pray, and bring a pile of prayer books there before the Sabbath. Which is what most synagogues do anyway. Or you bring your own there Friday afternoon. So on a practical level, this argument was silly.)

          1. I wasn’t making a point. I was asking a question.

            Does that circumstance fit the requirement that, “there exist some individual, potentially identifiable, whose life is currently in danger?”

            And yes, you have a good point about the books already being in place.

        2. If the river is already flooding, then the risk isn’t hypothetical, it exists right now. It won’t kill anyone right now, but if nothing is done then it is certain to kill everyone later. It’s like having a venomous snake loose; that’s a current danger, even if victims, once bitten, will take a day to die.

    2. Not just the Midwest, they were in NY & NE.

  6. Josh, here is a question for you. If it’s okay to adopt free exercise of religion as a most-favored right, why wouldn’t it be okay to disparage it as a least-favored right?

    1. To answer the absurdly privileged status of religion, the non-religious should form the “Church of Ephemeral Belief and Conduct”.
      Privileged free exercise protections for everyone !

      1. The Congregation Of Exalted Reason is far ahead of you.

        These superstitious clingers can’t think a single move ahead.

  7. That’s fine, if anyone choosing to do this accepts the need for them to self-quarantine.

    I really don’t have any issue with people observing their religion how they want. I do have a serious issue with others doing things that are a danger to me, whatever the motive.

    So if you want to do this, keep yourself out of my breathing space. And yes, this is your responsibility to stay away from me, and I will stand my ground.

  8. The courts should just rule that there is no selective incorporation of the 1st Amendment provision regarding free exercise of religion and leave the states free to outlaw religion altogether. That would make the progressives and the atheists happy.

    1. Plenty of Christian progressives.

      You have no idea what the left wants, you just want to be nobly persecuted.

  9. Thank goodness Blackman is here to speak for the Jews.

    1. That’s the future of right-wing legal academia speaking.

      Time to prepare for the victory laps.

    2. If you wanted to defend them, you could. Seems like you want to sit and watch their rights be trampled for [totalitarian reason number 7] instead, while making little comments about the defense.

      1. Thanks for calling me a totalitarian, weirdo.

        I know plenty of Jews, and their concerns are not anything like what Blackman is putting into their mouth.

        Some? Perhaps. But Blackman isn’t making a nuanced play like that. Which is why he is wrong. Not that he cares.

        1. Some people are ok giving up their rights isn’t much of an argument. It is a very common one though.

          We have a free exercise clause to protect people who need protection, not people who don’t. Same with all the other protections.

          Rights and protections don’t take a vacation because someone agrees with [totalitarian reason #7] or whichever other reason you might agree is super compelling at any given moment.

          1. I agree that rights don’t take a vacation, But when more Americans have died from COVID than were killed in World War II, and (assuming the current rate of daily deaths) in another 2 weeks we will have lost more Americans to COVID than were killed in World War II and Vietnam combined, a rule prohibiting all indoor gatherings, both religious and nonreligious, easily passes the compelling state interest test. I see no reason for a higher test. Such gatherings put the rest of the public, not just the worshippers, at risk.

            1. ” Such gatherings put the rest of the public, not just the worshippers, at risk.”

              So what? These hayseeds are on a Mission From God.

              A paltry, illusory god — but still a god,

            2. Everyone who wants to oppress minorities has an argument for it. You think yours is good, just like other oppressors do.

            3. Also, where do you you get the idea that my phony number of deaths is higher than some other number is an argument for anything, let alone an argument for oppressing minorities?

              I guess if you’re a big fan of Korematsu and the Japanese internment, you might like to justify other actions by that standard. Seems like something you might not want to say though.

              1. Laws limiting indoor activities do not “oppress minorities.” As Martin Luther King Jr. explained in his masterpiece Letter from a Birmingham Jail, “An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself.” Now, I don’t take that as an absolute rule, but it’s a good starting point. These laws do not apply differently to minority religions than to majority ones.

                (Also, “phony number of deaths” pretty much puts you in Alex Jones territory.)

          2. Not the argument being made here.

            I take your switching subjects as an admission.

            1. That’s twice you’ve falsely asserted parts of the conversation that didn’t happen. It’s pretty tedious. No doubt you’re winning the argument you imagine is happening though.

  10. Josh, the Jews solved this particular problem hundreds of years ago. Do some damn research.

  11. This well meaning but utterly peverse understanding of religion is illustrative of the error that many conservaties make with respect to worshiping in general and Judaism in particular.

    Millions of people confuse the act of worship with the act of being religious. Being religious is a state of mind, it is an attitude of charity, tolerance, and understanding of the residents of a community and the world. In Judaism, it is following the teachings of the great Rabbi Akiva.

    Being religious is not embracing symbols. It is not erecting a cross or observing kosher. It is not denigrating women or persecuting those with whom we disagree. It is not hatred, or torture or denying equality to those whose race, religion, sexual identity or other characteristics we find offensive.

    The description of the ‘persecution’ of orthodox Jews in this post is a lack of understanding of religion. Just because I believe that my religion requires certain rites and rituals does not make undertaking those rites and rituals acts of piety or observance. A truly religious person cares for his fellow members of society, and does not oppose minor and temporaray measures to protect the health of the village, town, city or nation in which he or she resides. To work to create conditions to spread disease is the very opposite of engaging in religious freedom.

    1. Well said, Sidney.

      Indeed, it is easy to let careful observance of rites and rituals substitute for the moral requirements of a religion. Keeping kosher doesn’t absolve you of the need to behave in an ethical and moral way in everyday life.

    2. A person who truly understands freedom and liberty and science also understands that lockdowns are a violation of freedom and liberty with no recompepense.

      A statist understands only “Obey” and has zero interest in freedom, liberty, and science; those are foreign concepts, devoid of meaning.

      1. Quite whining, you bigoted malcontent.

    3. I’m not sure I agree, Sidney. You are describing spiritualism. Ceremony and ritual are absolutely part of religion, and no small part of many people’s core faith. Not yours or mine (Unitarians are nothing if not flexible) but I don’t think it’s on us to say that these calls to allow ritual are not sincere.

      But that does not mean Blackman’s special pleading is any less weak-ass rabble-rousing.

      1. Sincerity does not make right. Many if not most of the most egregious tyrants in history, particularly those of the religious prosecution group were totally and completely sincere in their belief.

        No one is saying these people are not sincere. Prof. Blackman is certainly sincere. What we are saying is that being sincere about religious rituals without the underlying philosopy of say treating everyone with kindness and respect does not make one religious or entitle one to engage in rituals that damage, and possibly kill their neighbors, friends, family or anyone else.

        This message

        “The Torah commands us: “You shall love your neighbor as yourself” (Leviticus 19:18). Because humanity was created in the image of G-d, b’tzelem Elohim, we show disrespect for G-d when we show disrespect to our fellow human beings. Hence, we are obligated to treat everyone with respect. Judaism teaches us to celebrate each individual’s uniqueness and affirm their divine worth. While this value of v’ahavta l’reacha kamocha (loving your neighbor as yourself) does not involve specific actions like many of our biblical precepts, it does call for a type of attitude. It demands we think about people in a particular way. To love our neighbor as ourselves means we behave towards others in the way that we would want them to treat us. Therefore, the value of v’ahavta l’reacha kamocha offers the foundation for understanding moral behavior. Our tradition teaches that the great sage Rabbi Akiva is attributed to saying that Judaism is a religion that cherishes, above all else, treating people well. According to Akiva, compassion for the other is at the heart of Judaism (Jerusalem Talmud, Nedarim 9:4; Sifra, Kedoshim 4:12)”

        is so well written I have often been tempted to claim authorship. I do not primarily because those who know me know I am not capable of such eloquence.

        1. I don’t think it’s the state’s part to decide of a given action has underlying it the appropriate philosophy of kindness, or whether it is in alignment with the associated holy text.

          If your argument is merely that Blackman is not speaking for Jews, I concur completely. But I still can’t walk with you on your more sweeping argument.

          Though we’ll see; the latest play of the right is to make every one of their policy preferences to be about faith, and I may have my ideals here tested.

    4. It’s awesome that we have you to tell us all what is and isn’t included in religion and religious practice. Thanks!

      1. No problem, glad to do it.

    5. ‘To work to create conditions to spread disease.’ And where and when is this occurring? Your decision that all religion fits this category, that those who choose to practice their religion choose to not protect the health of the village, town, city or nation are the very worst sort of rhetorical and logical fallacies. I cannot say that I am greatly surprised, bias flavors and creates viewpoints and arguments.

      1. Hank, he did not say all religion fits that category. Nor is it reasonable of you to assert that religionists do not exist who shirk a duty to protect others, even during the practice of religion. Under present conditions, religious gatherings which ignore social distancing, or at which people gather without masks, are objectively dangerous to everyone, no matter what the religionists think, or are willing to assert. There is no bias in pointing that out.

        Reckless assertions can be privileged, and can be left alone; it is folly to privilege reckless behavior in a pandemic emergency.

  12. “California’s ban on indoor worship means that Jewish people cannot pray outside.”

    Writing sentences such as that one is how a guy with hard-wired, gold-plated Federalist Society and Republican Party connections winds up mired at a shit-rate law school, publishing amateurish polemics at a clinger blog while teaching our next generation of title searchers and hayseed solicitors.

  13. Choose reason. Every time.

    Choose reason. Especially over sacred ignorance, dogmatic intolerance, and childish superstition.

    Choose reason. Most especially if you are older than 12 or so. By then, childhood indoctrination fades as an excuse for gullibility, backwardness, bigotry, and ignorance. By adulthood — this includes ostensible adulthood — it is no excuse, not even in the most desolate stretch of South Texas.

    Choose reason. Every time. And education, inclusiveness, science, progress, tolerance, freedom, and modernity. Avoid ignorance, superstition, insularity, bigotry, dogma, backwardness, authoritarianism, and pining for good old days that never existed. Not 50 years ago. Not 2,000 years ago. Not ever.

    Choose reason. Every time. Be an adult.

    Or, at least, please try.

    Thank you.

    1. Lower signal to noise ratio each time, Kirkland. Soon your vapid insults will be ignored completely.

      1. I do not expect or seek your approval, Hank Ferrous.

        But you will comply with the preferences of your betters.

        That is enough for me.

        Carry on, clinger . . . and you will toe that line.

  14. One more thing.

    Liberals are also at fault here. For example, yes, you can say Merry Christmas to Jewish person. We know what you mean, that you are wishing us well being, even if the words are a little off key.

  15. So impossible that I have been to many Orthodox shabbat services outside. They are in an eruv. If it rains they can put up tents. By now most Jewish congregation that cared could have put up tents and an eruv.

    1. “Obey the state” is your mantra, is it not? How proud you must be of solving all religious and legal problems so simply!

      1. Why not just relax and enjoy the improving world and progress others are arranging for you?

      2. I am getting quite sick of the “If the experts say it then it must be wrong” argument. 1 in 1000 Americans has died of covid so far, and at least 10x that number will have long term organ damage. They can put up a string and a tent.

        1. 1 in 1000? You really need to think more. ‘Of’ versus ‘with,’ for a beginning point, if you’re going to put ‘experts’ on a pedestal.

      3. Blackman brought nothing but bluster. At least Molly brought some eyewitness evidence.

        All you have is blind ideology. About other people.

      4. How frustrated you seem, at seeing them solved simply. It makes me wonder whether cherishing problems with which to devil the state is more important to you than solving the problems.

  16. “It is impossible to carry bread and wine outside to perform special blessings.”

    To paraphrase gov. Gavin; “Let them eat Domino’s”.

    Seriously though, aren’t there ordinances in some places that prohibit the “public” consumption of alcohol? Where “public” could just means visible to the random passerby.

  17. Hypothetical question.

    The State of Fictionalia, after being admitted to the Union, passes a law: all houses of worship, bowling alleys and smoothie bars are hereby banned in this State, under penalty of 10 years mandatory jail. (Private worship, bowling and smoothie-making remain legal. Heck, you want to install a bowling alley in your basement, sip smoothes, and pray “Lord, give me a strike!” you may do so.)

    Constitutional? A generally applicable law under Smith? Subject to strict scrutiny?

    1. At first glance that strikes me as not being neutral towards religion because houses of worship are targeted for prohibition. Thus, strict scrutiny applies.

      However, strict scrutiny might not apply if the state can explain why it explicitly banned houses of worship for a reason not related to religious exercise. If so, then strict scrutiny would not apply, although it’s not clear what burden the state must overcome at this stage in the analysis.

      In the case of COVID-19, I think in some cases the state can meet this burden and in others it can’t. It seems to me, houses of worship are explicitly named because they are provided better treatment than other places and that should be permitted. On the other hand, if houses of worship are also explicitly treated worse than comparable other places, that likely means strict scrutiny applies. The million dollar question is what is the standard for “comparable.”

  18. In summary: I don’t like the choices I have before me, therefore it’s not fair.

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