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Second Circuit Rules for Agudath Israel and Brooklyn Diocese

The panel reviews Governor Cuomo's order with strict scrutiny, declares it unconstitutional.


Today, a Second Circuit panel (Livingston, Park, Menashi) decided the consolidated cases of Agudath Israel of America v. Cuomo and Roman Catholic Diocese of Brooklyn v. Cuomo. Judge Park wrote the panel opinion. The court reviewed Governor Cuomo's numerical caps with strict scrutiny, and declared them unconstitutional. The court remanded to the district court the question of whether the percentage caps are lawful. At this point, I doubt Governor Cuomo will risk appealing to the Supreme Court.

First, the court found that strict scrutiny was warranted, in light of the Supreme Court's per curiam Diocese decision:

"To determine neutrality, we begin with the [Order's] text, 'for the minimum requirement of neutrality is that a [government policy] not discriminate on its face.'" Id. (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 5 U.S. 520, 533 (1993)). The Order fails this basic standard by explicitly imposing on  "houses of worship" restrictions inapplicable to secular activities. "In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as 'essential' may admit as many people as they wish," subject to only the less stringent 50% capacity limit applicable to all businesses. Roman Cath. 10 Diocese, 141 S. Ct. at 66. And "[t]he disparate treatment is even more striking" in orange zones, where "attendance at houses of worship is limited to 25 persons" but most non-essential businesses must comply with only the generally applicable 50% capacity limit. Id. The fixed capacity limits thus "cannot be viewed as neutral because they single out houses of worship for especially harsh treatment." Id. . . .

Here, the court considers whether houses of worship are treated differently that any secular activity, and not just a comparable secular activity. Here, the court correctly rejected the Chief's comparator approach from South Bay, and adopted the correct comparator approach from Diocese. (Ninth Circuit, take note).

Indeed, the panel stated that Diocese "supplanted" South Bay.

The district courts, motions panel, and Governor also relied heavily on the Chief Justice's concurring opinion in South Bay. Whatever persuasive value that opinion may have had in the early months of the COVID-19 pandemic, the Supreme Court's decision in Roman Catholic Diocese has supplanted South Bay. See Roman Cath. Diocese, 141 S. Ct. at 70 (Gorsuch, J., concurring) ("Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.").

Second, the Court criticizes the Governor's framework of designating certain businesses as "essential." :

Moreover, the Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them "essential," while imposing greater restrictions on "non-essential" activities and religious worship. That lack of general applicability is also subject to strict scrutiny.

"Essential" is a synonym for "important," as determined by Cuomo. Here, the Court seems to embrace Justice Gorsuch's Diocese concurrence

Further, although the Governor asserts that "all" activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of "essential" activities was  created based on transmission risk. Instead, "[t]he only explanation for treating  religious places differently seems to be a judgment that what happens there just  isn't as 'essential' as what happens in secular spaces." Roman Cath. Diocese, 141 4 S. Ct. at 69 (Gorsuch, J., concurring). Courts apply strict scrutiny to assess whether a government policy impermissibly "'devalues religious reasons' for congregating 'by judging them to be of lesser import than nonreligious reasons.'" Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2614 (2020) (Kavanaugh, J., dissenting) (quoting Lukumi, 508 U.S. at 537–38).

Third, the Court found that the percentage limits (which SCOTUS did not review) would also be reviewed with strict scrutiny:

The Supreme Court's Roman Catholic Diocese opinion addressed only the fixed capacity limits, but the same reasoning applies to the Order's percentage capacity limits, which by their own terms impose stringent requirements only on houses of worship. One could easily substitute the percentage capacity limits for the fixed capacity limits into the Supreme Court's discussion of strict scrutiny without altering the analysis. Thus, both the fixed capacity and percentage capacity limits on houses of worship are subject to strict scrutiny.

Fourth, the Court found that the numerical limits are not narrowly tailored:

Regarding the fixed capacity limits, the Governor has never seriously contended that they are narrowly tailored to stem the spread of COVID-19, and he appears to concede as much here. Those limits are "far more severe than has been shown to be required to prevent the spread of the virus at [Appellants'] services," particularly because the Governor has pointed to no evidence of any outbreaks related to Appellants' churches and synagogues. Roman Cath. Diocese, 141 S. Ct. at 8 67. Most obviously, the 10- and 25-person restrictions do not account in any way for the sizes of houses of worship in red and orange zones. Two Diocese churches originally affected by the Order seat over 1,000 people, and more than ten accommodate over 700. Likewise, Agudath Israel of Kew Garden Hills has a capacity of over 400. "It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows." Id.

Here, the Court forcefully rejected the pernicious stereotype that houses of worship cannot be trusted to follow health guidelines.

The fixed capacity limits also bear little relation to the particular COVID-19transmission risks the Governor identifies. As an initial matter, the Governor'sidentification of those risks relied on broad generalizations made by public-health  officials about inherent features of religious worship. See, e.g., App'x, No. 20-3572, at 294 ("Generally, the congregants are arriving and leaving at the same period and are together over an extended period of time."). The government must normally refrain from making assumptions about what religious worship  requires. See Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 5 (2020) ("The First Amendment protects the right of religious institutions 'to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'" Even taking these assertions at face value, however, the Governor must explain why the Order's density restrictions targeted at houses of worship are more effective than generally applicable restrictions on the duration of gatherings or requirements regarding masks and distancing. The Governor may not, of course, presume that religious communities will not comply with such generally applicable regulations.

So many Governors, and judges simply presume that people of faith cannot be trusted. Last week, I wrote:

And houses of worship follow rigorous protocols. They prohibit singing and chanting. They time their exit and entry to prohibit crowding. Judges are wedded to this March 2020 stereotype where people chant and scream at the top of their lungs for hours on end. This narrative is simply false. Please, get on with the times.

This sort of generalization would never fly for any other classification.

Fifth, the Court declines to determine whether the percentage limits are narrowly tailored. That issue is remanded to the District Court.

Before the Supreme Court's Roman Catholic Diocese decision, all parties to this litigation were focused primarily on the Order's fixed capacity limits. Agudath Israel chose to challenge only those limits in its application for injunctive relief in the Supreme Court. Similarly, Agudath Israel's counsel represented to this Court during oral argument on its motion for an injunction pending appeal that it was not, at that time, objecting to the 25% capacity restriction. Under these circumstances, we remand Agudath Israel's motion for a preliminary injunction as to the percentage capacity limits for the district court to decide in the first instance in light of the Supreme Court's decision and this opinion.

Yet, the panel seems to suggest that the Governor's defense of the percentage limits are a "post hoc rationalization." And, the court suggests that there is no "contemporaneous evidence" about the justification behind the percentage limit.

Sixth, the Court clarified that Jacobson has no place in a First Amendment challenge. Indeed, the Second Circuit clarified one of its prior ruling that implicated Jacobson:

In Jacobson, the Supreme Court upheld a mandatory vaccination law against a substantive due process challenge. Jacobson predated the modern constitutional jurisprudence of tiers of scrutiny, was decided before the First Amendment was incorporated against the states, and "did not address the free exercise of religion." Phillips v. City of New York, 775 F.3d 538, 543 (2d Cir. 2015); see Roman Cath. Diocese, 13 141 S. Ct. at 70 (Gorsuch, J., concurring) ("Jacobson hardly supports cutting the Constitution loose during a pandemic. That decision involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction."). Indeed, the Jacobson Court itself specifically noted that "even if based on the acknowledged police powers of a state," a public-health measure"must always yield in case of conflict with . . . any right which [the Constitution]gives or secures." 197 U.S. at 25.

Amen. I am still disappointed that so many judges made this foundational error.

And, the court would not grant special deference to the government with respect to an enumerated right, even during an emergency:

But we grant no special deference to the executive when the exercise of emergency powers infringes on constitutional rights. That is precisely what the three-tiered framework for analyzing constitutional violations is for, and courts may not defer to the Governor simply because he is addressing a matter involving science or public health.

Seventh, the panel rejected the district court's finding that Orthodox Jews can worship with "modifications":

The court below concluded that Agudath Israel had not demonstratedirreparable harm because its congregants could "continue to observe theirreligion" with "modifications." This was error. See, e.g., Hernandez v. Comm'r, 490 4 U.S. 680, 699 (1989) ("It is not within the judicial ken to question the centrality ofparticular beliefs or practices to a faith, or the validity of particular litigants'interpretations of those creeds."). Religious adherents are not required to establishirreparable harm independent of showing a Free Exercise Clause violation because a "presumption of irreparable injury . . . flows from a violation of constitutional rights." Jolly v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996). Nevertheless, as Agudath Israel explained, Orthodox Jews are obligated to have an in-person minyan—a quorum—before some of Judaism's most sacred rituals. Orthodox Jews also desist from using electronics on Shabbat, so in-person gatherings are necessary for Agudath Israel's congregants. Appellants have demonstrated irreparable harm that would result without a preliminary injunction against enforcement of theOrder's fixed capacity limits on houses of worship.

Observant Jews cannot worship by Zoom.

Eighth, the Court declined to consider Agudath Israel's targeting claim.

Agudath Israel also argues that the Order is subject to strict scrutiny for the independent reason that the Governor "gerrymandered" the initial zone boundaries to target Orthodox Jewish communities. We need not reach this argument because we conclude that the Order discriminates against religion on its face.

Soon enough, Governor Cuomo will have to answer for his comments at that dreadful press conference.

Finally, the court expresses concern about the absolute power that Governor Cuomo has wielded since March.

On 15 March 7, 2020, Governor Cuomo declared a disaster emergency in the State, which allows him to exercise extraordinary executive powers. See N.Y. Exec. Law § 28. He can "temporarily suspend any statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency," and can "issue any directive . . . necessary to cope with the disaster." Id. § 29-a. Suspensions and directives under this law expire after 30 days, but the Governor may renew them an unlimited number of times. Id. The legislature of New York can terminate suspensions and directives "by concurrent resolution," but the Governor's actions pursuant to Executive Law § 29-a do not otherwise require legislative consultation or approval.  Id.

Governors have historically exercised this emergency authority in a limited  and localized manner, most often in response to natural disasters such as severe 10 storms or flooding. Governor Cuomo's executive orders during the COVID-19 pandemic, however, have been unprecedented in their number, breadth, and duration. From March to December 2020, he has issued almost 90 executive orders relating to the pandemic. Those orders affect nearly every aspect of life in the State, including restrictions on activities like private gatherings and travel.

Civil libertarians have been quiet about this gross exercise of unchecked authority–presumably because they support the results. Decades ago, the ACLU would have intervened at every junction. Alas, that organization should changes its name to the APLU–the American Progressive Liberalism Union.

When the dust settles, I plan to write about possible legislative reforms. For example, in New York, the Governor's emergency powers continue unless the legislature disapproves. I would flip that presumption. The Governor's emergency powers would expire unless the legislature approves an extension of those powers. I would use the War Powers Resolution as a model. No one person should have carte blanche to regulate every facet of human existence. Especially not Andrew Cuomo.

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75 responses to “Second Circuit Rules for Agudath Israel and Brooklyn Diocese

  1. Livingstong?

  2. Yes, I wonder what might have given the authorities the impression that religious organisations can’t be trusted to comply with basic Covid guidelines…

    1. Certainly not the same kind of behavior that may have given the general public the impression that politicians can’t be trusted to comply with their own Covid guidelines, hm?

    2. Nothing anywhere near what has given the entire world the impression that mostly peaceful protestors can’t be trusted to comply with basic Covid guidelines, let alone behave like civilized people instead of people who Burn Loot Murder.

      1. I prefer Bitchy Little Marxists, but hey…

    3. So if we substitute “African Americans” for “religious organizations,” you would be ok with an Executive Order that discriminated against African Americans?

      1. Lots of Federal and state-level policies discriminate against African Americans, and that’s never bothered you before.

        1. Reallllly….

          Explicitly, as in an African-American-owned business isn’t allowed to open while others are?

        2. Really? Specifically? By name?

          IE “African-American are not allowed to…” or “African Americans are restricted to no more than this number”….

          I’d LOVE to see those policies fully elaborated upon.

          (BTW, limit yourself to current policies. Don’t pull out historic policies)

          1. You know he’s not gonna come up with any. He won’t even respond. And he certainly won’t admit he exaggerated a bit.

            1. I’m sorry, it looks like you and your friends imagined the part where Bored Lawyer (and by implication my response) talked about direct discrimination.

        3. Name one current one.

          1. I’m sorry, did you say anything about direct discrimination? Or are you going to sit there and seriously make the argument that a million policies, from educational funding to criminal justice to voting rights, don’t indirectly discriminate against African Americans?

            1. You are confusing direct/indirect with on-its-face/disparate impact.

              The NY order at issue in the Second Circuit discriminated against religious houses of worship on its face.

              As for disparate impact, that is perfectly Constitutional, although it sometimes violates certain statutes. For the most part, it says little about actual discrimination.

              And you failed to name one current law that discriminates against African Americans in any way.

              So your response is a total fail.

              1. On the contrary, you’re the one who’s confused, by seemingly claiming that only laws that name a protected characteristic on its face can be discriminatory. But surely even you wouldn’t support a law that imposes fines on the wearing of yarmulkes without ever mentioning judaism?

                1. Again, name one current one.

                  1. We just recently learned NIH’s use of oxygen sensors overestimated the blood oxygen levels in African Americans (presumably calibrated before we bothered to include blacks in your test population), meaning they got substandard care for COVID in these last months.

                    Or what about public education being based around property value?

                    Racial disparities in promotion in the military – look at the race mix of enlisted versus officers, and of captains and lieutenants versus colonels and generals.

                    1. None of those are discriminatory on their face, nor do they use a proxy for race (as a yarmulka would be a proxy for Jews). The first is sloppiness, not discrimination. The second and third reflect economic disparities more than racial disparities.

                      The fact that some policy may disparately impact one race or another is not discrimination. Many policies are based on economics, and since racial minorities, on average, are less economically advantaged, they will be differently affected. That is simply not racial discrimination.

                      Any more than the fact that the federal estate tax exempts the first $ 11 1/2 million of one’s assets (or double that for a couple), and hence targets only the very wealthy, who are disproportionately white, discriminate against white people.

                    2. Huh, I assume you are referring to the New England Journal of Medicine letter to the editor that was just published? It’s not a study, of course, so you are severely overstating the strength of the ‘conclusions’, but it’s the only thing recently published that comes close to your description.

                      If that is the case, I have to ask why you didn’t mention that the study also showed that the pulse oximetry devices also significantly under measured the number of white people with hypoxemia? Or that the majority of the data came from 2014-2015?

                      By the way, these specific types of devices that are being criticized are less than 20 years old. I do seriously hope you are not accusing the NIH under Obama of deliberately excluding black people from medical testing because of their race. That would be quite a stretch, even for you.

                    3. Bored, you’re changing your goalposts: “Lots of Federal and state-level policies discriminate against African Americans…[Name One].”
                      You’re assuming all discrimination must be bad bad, which is why you must insist that disparate impact doesn’t count and only intentional discrimination can count. But that doesn’t mean it doesn’t count. Like our progressive tax system does have a discriminatory effect, but not a bad one.

                      If you’re looking for intentional discrimination, then look no further than EEOC’s claims on intentional discrimination in the federal workplace.

                      Toranth – I heard about it in an interview on NPR. 1) It was a study, 2) Black patients had nearly three times the frequency of occult hypoxemia that was not detected by pulse oximetry as White patients so I don’t know what you’re getting at that there’s not a racial issue here.

                      The NIH, among many other agencies, has a legit issue with their test populations being almost exclusively white. It’s not intentional, but it seems to be baked into their methods. The NIH has an office to deal with specifically that in drug trials, but the problem persists. Another similar issue occurred with facial recognition software from about a year ago. Made it all the way to market and then they found out it couldn’t detect black faces.

    4. “Yes, I wonder what might have given the authorities the impression that religious organisations can’t be trusted to comply with basic Covid guideline”

      I’m going to go with massive anti-religious bigotry on the part of the “authorities”

    5. Yeah I wonder why might have given citizens the impression that the government was just making things up…

  3. If Governor Cuomo doesn’t let my people go free, the One True Living God will smote him and his first born son!

    1. ‘smote’ not ‘smite’?

  4. “So many Governors, and judges simply presume that people of faith cannot be trusted.”

    Indeed, correctly:

    ‘A network of health clinics owned by a Hasidic man and serving a number of Hasidic communities in Brooklyn and upstate New York is under investigation for administering COVID-19 vaccines to members of the general public.’

    ‘New York State health commissioner Howard Zucker announced the investigation into ParCare Community Health Network on Saturday, saying in a statement that the clinics may have obtained the vaccines “fraudulently” and administered doses to members of the public “contrary to the state’s plan.”’

    1. And that somehow applies to all religions, all churches, mosques, temples, and other religious buildings and people?

      Yet nothing was done about mostly peaceful protestors except cheer them on.

    2. “contrary to the state’s plan.”

      Oh noes. They violated some arbitrary order. Hang them!

    3. Two words: “Willie Horton.”

      Only a bigot thinks that one man represents all with a shared characteristic.

    4. “Indeed, correctly:”

      So one Hasidic run organization has been suspected of committing some kind of fraud in connection with vaccines. And from that you feel you can extrapolate to all Orthodox Jews, indeed all religious people?

      I gather from your name that you are Jewish.

      Are you not at all embarrassed and ashamed for writing that comment?

      But if you are not, let me appeal to your self interest. There have been a fair share of crooks with Jewish sounding names. Bernie Madoff, Ivan Boesky, Scott Rothstein. Under your conclusion, all Jews should be suspected as crooks. Including those named Hyman Rosen.

      1. It also isn’t exactly clear that they did anything wrong — some bureaucrats allocated them 3,500 doses and presumably had a rational basis for doing that.

        It very well may come down to what officially constitutes the two groups designated in the state’s “plan” and what constitutes them in a Hasidic community. For example, exactly what constitutes “living in a nursing home”?

        IANAL, but my defense would be that “I told the state whom I wanted to vaccinate and the state gave me 3,500 doses to do it, and I did what I told them I would do.”

        1. I did not want to get into that. We don’t know the facts yet, so there might be a good explanation, or there might not. Point is, at worst you have one business committing some fraud. To extrapolate from that to all Orthodox Jews, let alone all religious people, is sheer bigotry.

          1. Although, either way, I’m not willing to let the bureaucrats off the hook. THEY released the 3,500 doses, that’s their act…

    5. So…you have a single example. And you use that to implicate all religions everywhere for additional, special, discrimination?

      Did I tell you about that Jew who stole something from a good Aryan person in 1936….

  5. No one person should have carte blanche to regulate every facet of human existence. Especially not Andrew Cuomo.

    Behold, the Age of Trump is over! The Age of Limited Government has returned!

    But seriously, if you don’t like governor Cuomo, feel free to vote him out. O, wait, you don’t live anywhere near New York. In that case, maybe you should start by worrying about the unlimited powers of the governor of Texas.

    1. What is Governor Hot Wheels doing down in Texas?

    2. Well, he ain’t perfect but at least he isn’t jamming covid carriers into nursing homes then writing books bragging about it. There’s that.

      He’s also not ordering holiday lockdowns and then having his family over for holiday events. There’s that too.

    3. “O, wait, you don’t live anywhere near New York.”

      He lives a lot closer to NY than you do.

      Why do you comment about US domestic issues anyways? Don’t you have some elderly to euthanize?

    4. The governor of NY is an elected position, which is subordinate to the Constitution of the United States and the State of NY. If he violates the U.S. Constitution, as this Court of Appeals has now found, that is every U.S. citizen’s concern.

    5. Josh will apparently not be happy until the courts force New York to convert all of our places of worship into superspreaders.

      1. Care to point out any of your prior comments complaining about BLM marches being superspreaders? Or do you limit your concern only to places of worship?

    6. If Martinned could point to a policy that Trump put in place that “regulates some facet of human existence” as opposed to loosening laws that regulate human existence, perhaps his point would be valid.

        1. Apart from the fact that is was not a Muslim ban (as the Supreme Court found), not letting others into your country is a minimal restriction on their liberty, one practiced by almost every country on earth.

  6. It is about time our free exercise rights were protected. It has been a long wait (7-8 months). These open-ended emergencies have to go. They have become excuses for government to strip away our enumerated constitutional rights. This never should have been allowed to go on like this.

    1. But the COVID camps are for your medical protection!

    2. Yes, I can’t believe that Cuomo insisted on continuing the state of emergency long after the Coronavirus has gone away!

      1. So what limits, in your view, are there to the emergency powers? If the Governor says “Coronavirus” can he do anything? Set up gulags? Concentration camps?

        1. As a policy matter, I’m OK with just about any limits the legislature of New York State wants to put on executive powers, as long as they do their job to keep things going in an emergency as well. And since, AFAIK, the New York state legislature is the most dysfunctional in the country, maybe the state’s ability to respond to an emergency shouldn’t depend on them getting their shit together. But in any other state, by all means do something analogous to the War Powers Resolution.

          But for those paying attention none of this should come as a surprise, since I’ve commented many times before in favour of legislative control over the executive. The presidential system of government is a truly terrible idea, and it may well be America’s worst gift to the world.

          1. That doesn’t answer the question. Assume for a minute the governor were trying to lift restrictions, and the legislature were the ones responsible for the draconian lockdowns instead. The question was this: what limits on the emergency powers should there be?

            1. Huh? Can you run that one by me again?

              1. The issue is not the executive vs. the legislature, which is what you addressed. The issue is what limits, if any, are there on the government actions (whichever part of the government determines them) in an “emergency.”

  7. So Cuomonut goes after the Chrisitians as the jews just ignore him and DeBalsio … hilarious….people get stuffed on planes and fly all over the country eating and drinking breathing recycled unfiltered air…but once in Gulag NY the tyranny pounces, legislature asleep and compliant to the absolute ruler…..but see you at jewish funeral in Brooklyn cuz the Governor is not going to touch the jews.

  8. I’m sure that if cuomo the lesser could just keep the Joooooooze locked up he would be a happy reichmarshall.

      1. I’m sure you are a very fine person.

    1. What do you expect? Eggplants are natural anti-Semites!

  9. Three clinger judges — two of them 40-something Federalist Society specials — choose superstition and dogma over reason and science during a pandemic? This is news?

    1. Dang those pesky civil rights. Once your liberal-libertarian partnership gets REAL control the way you want it you’re gonna fix the fuckin’ Bill of Rights, aren’t you. There’ll be no more whining to court about no civil rights once you get control.

    2. Let’s see. Judge Livingston graduate from Princeton, then Harvard Law and was a professor at Columbia Law School, before becoming a Circuit judge.
      Judge Park went to Princeton, then Yale Law School, was also a law professor, and then was appointed to the Second Circuit.
      Judge Menashi went to Dartmouth, then Stanford Law School, and was a law professor.
      All told, this panel consists of, for want of a better term, RALK’s “betters.” If six Ivy League degrees, three law professorships, and various law clerkships comprise “clingers,” then that term has been emptied of all meaning.
      And actually what they chose is to follow Supreme Court precedent, which is what a lower court judge is required to do by his/her oath of office.
      RALK reminds me of what my former partner used to say. When you are down in the gutter, be carefully you don’t fall into the sewer.

      1. Clingers are stale-thinking right-wingers who cling to the discredited “guns, god, and gays” brand of conservatism, pining for ‘good old days’ that never existed (except to those who appease bigotry and backwardness).

        1. They are your betters. And they just ordered one of your governors to stop enforcing one of his policiies. So you are on the losing end of history here.

          As for bigotry, yes, we all know that houses of worship are far less law abiding than bicycle shops and accupuncture parlors. Or at least that is what the enlightened Governor of NY thinks.

    3. We already know about your hatred of the Judenvolk. No need to goosestep in here and reiterate it.

  10. I’m a life-long atheist but am nevertheless glad to see the courts push back on governments’ violations of the Free Exercise clause. Perhaps this is one bright spot that the pandemic will be remembered for. If one doesn’t like the ramifications of the Free Exercise clause, instructions for eliminating or modifying it were conveniently included in Article V but as long as it’s in the Constitution, it should be vigorously enforced (as should the Second Amendment et al).

    However, I wish the courts would find that freedom from religion is as sacrosanct. Disbelief in a mythical mastermind is as valid, and as religious, as a belief in such a mastermind.

    Thus laws that force employers to make “reasonable accommodations” for employees’ religious beliefs should be struck down under the Establishment Clause as those represent a government mandate that the employer must act differently due to another person’s religious beliefs.

    One example would be requirements that employers must make exceptions to their dress code for those who assert that their religion requires wearing of a particular item (such as a kippah, hijab, or kirpan) that’s in conflict with the dress code or prevents them from meeting the employer’s grooming standards (such as with respect to facial hair).

    Such required exceptions should also probably be struck down on Free Speech grounds as well. An employer should have the right to control speech when an employee is “on the clock” and, in the case of customer facing employees in particular, attire is a form of speech that reflects on the employer. An employer in West Hollywood should be able to ban an employee “on the job” from wearing a cap emblazoned with “God hates Fags” because it reflects on the employer by implying they support that statement and it also makes customers uncomfortable. An employer should also be able to restrict the wearing of religious apparel that may make customers perceive that the employer supports the underlying religion or that makes customers uncomfortable. Any government (including court imposed) mandate that the employer is required to allow such speech “because it’s religiously required” is the government compelling speech as well as implied support for a religion they may not adhere to. (Although, if the employee is an adherent of the Westboro Baptist Church and the WBC were to declare that adherents must at all times wear such a message, perhaps the West Hollywood employer would be required to allow it?)

    Another example is an employer being required to schedule employees around the employees’ religious restrictions (such as religious prohibitions on working on the Sabbath) which require other employees to take even one additional undesirable weekend shift a year. This is not only a case of government mandating an impact based on religion on the employer, but on employees as well.

    I do, however, think that governments should be required to make “reasonable” religious accommodations for clients who must interact with the government under the threat of a gun (religious practices of inmates in prison, appearance in courtrooms as a party or witness (but not necessarily as a spectator), scheduling of IRS audits, etc).

    Cue the arguments — “But, but… wouldn’t that then also apply to laws against employers discriminating against Blacks or Asians in hiring?” Nope, that’s comparing apples and oranges and would be a completely different discussion. People change, accept, or reject religions all the time just as they change political parties and underwear (and, now, we are informed their gender as well). In fact, many religions are very convinced that religion is fungible – else they wouldn’t believe a person can be “saved” or “converted” and I would virtually never experience two young men in white shirts and cheap ties carrying literature knocking at my front door when I’m otherwise occupied. One can not, however, alter their race or birthplace.

    1. Cue the arguments — “But, but… wouldn’t that then also apply to laws against employers discriminating against Blacks or Asians in hiring? Nope, that’s comparing apples and oranges and would be a completely different discussion. People change, accept, or reject religions all the time just as they change political parties and underwear (and, now, we are informed their gender as well).”

      So, what does that mean for laws regarding gender or sexual orientation-based discrimination? They can “change” too, can’t they?

  11. re: “Civil libertarians have been quiet about this gross exercise of unchecked authority …”

    No, we haven’t. We just don’t have a channel through which to make our objections heard over the drumbeat of R vs D recriminations and feigned outrage.

    1. An amicus brief to one of the courts considering the issue is one such channel. Which the ACLU used to exploit frequently. Now, not so much.

  12. “They prohibit singing and chanting. …”

    Would that this was true broadly. Perhaps there exist places where it is. Virginia is not one of them. Singing is widely practiced.

  13. The truly frightening part is that most mainstream media outlets are not reporting the Court’s opinion… and (at present) a Google news search returns only one reference (to a report by the Jewish Telegraphic Agency).

    As an experiment, post a link to the Court’s opinion on Facebook and see what you get.

  14. The right result here cannot be that judges will simply conclude that no percentage limitation on occupancy could possibly apply to religious institutions in a pandemic.

    Two Trump judges and a Dubya judge, somehow discovering “strict scrutiny” in some enigmatic Supreme Court concurrences. This is the kind of jurisprudential incoherence that will be Trump’s true judicial legacy.

    1. Good. And I hope there is a lot more of it. It’s long overdue that judges actually apply the law as it’s written, as opposed to how they wish it were written.

    2. Of course a law like this should be subject to strict scrutiny. It directly interferes with the free exercise of religion. It’s just that strict scrutiny should not be the same thing as a near-certain loss for the government. “Global pandemic” should be a pretty good defence for the government in a strict scrutiny case.

      1. You really have little understanding of US law. Strict scrutiny has two parts: the law must be (1) narrowly tailored to meet (2) a compelling government interest. Merely invoking “Global Pandemic” at most gets you (2), not (1).

        Were it otherwise, the government could justify all kinds of oppressive laws and orders. Just invoke some compelling interest (“stop crime,” “protect the children,” “avoid a depression”) and you have a license to do anything. That’s not how Constitutional law works.

        In this case, despite the “Global Pandemic,” the State of New York decided that many businesses could operate at 25% or 50% capacity, depending on their locations. Not so houses of worship. When pressed to explain the difference, the State of New York came up with nothing. That is not “narrowly tailored” under any definition.

    3. Actual that is the right result.

      There is no evidence any sort of percentage limitation stops the transmission. Its made up on feels. The court said as much.

  15. “So many Governors, and judges simply presume that people of faith cannot be trusted.”

    Indeed, correctly:

    “Photos show thousands crammed into Brooklyn synagogue for Satmar funeral”