The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.