SCOTUS Decides South Bay v. Newsom II, Enjoins Complete Prohibition on Indoor Worship Services

The Court is badly fractured, as Justice Barrett writes her first separate writing.


Around 10:45 PM ET on Friday evening, the Supreme Court decided South Bay United Pentecostal Church v. Newsom II. (I blogged about the briefing earlier this week). Here is the bottom line: six Justices enjoined California's complete prohibition on indoor worship in so-called Tier 1 zones. Beyond that, the conservatives splintered sharply.

Unsigned Per Curiam Opinion

Let's start with the unsigned per curiam opinion. First, the Court blocked Governor Newsom from prohibiting indoor worship by the Applicants:

 Respondents are enjoined from enforcing the Blueprint's Tier 1 prohibition on indoor worship services against the applicants pending disposition of the petition for a writ of certiorari.

In theory at least, Newsom could continue to enforce the regulations as to other houses of worship. The Supreme Court's injunction is not universal. But as a practical matter, Newsom would be sued by other churches, and he could not rely on qualified immunity. Therefore, for practical purposes, he will have to stop enforcing the ban on indoor worship statewide. Plus, Newsom is facing a recall, and has thrown #science to the wind to save his political skin. (More on the politics later).

Second, the Court allowed the church to limit attendance to 25%. The Court reached a similar ruling in Diocese of Brooklyn.

The application is denied with respect to the per-centage capacity limitations, and respondents are not en-joined from imposing a 25% capacity limitation on indoor worship services in Tier 1.

Currently, this issue is being litigated in New York. In short, Governor Cuomo has agreed that houses of worship should be subject to the same occupancy limits as other "essential' businesses. I am not sure what percentage other businesses in California can open up with.

Third, the Court allowed the state to ban "singing and chanting."

The application is denied with respect to the prohibition on singing and chanting during indoor services.

Fourth, the Court allowed the Church to present evidence that the percentage caps, and ban on signing and chanting are not generally applicable.

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Justice Gorsuch's concurrence suggests these rule are not generally applicable. Given the district court judges that ruled on these injunctions before, I do not think these arguments will receive a warm welcome. Punt.

Fifth, the Court has teed up the COVID-19 endgame:

Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

As soon as the Court denies certiorari this injunction lifts. The Court can then hold onto the petition until the pandemic concludes, and let this case dissolve. For now, the parishioners of South Bay no longer have to weather the elements to pray. The courts should have entered this relief before Christmas. Once again, contrary to what Justice Breyer suggested, these cases take weeks and months, not "hours."

The Court issued a similar order in the companion case, Harvest Rock.

Now, let's break down the separate writings.

Justices Thomas, Gorsuch, and Alito

Justices Thomas and Gorsuch would have granted "the application in full." In other words, they would have enjoined the percentage caps, and the ban on singing and chanting indoors.

Justice Alito took a more measured approach:

JUSTICE ALITO would grant the application with respect to all of the capacity restrictions on indoor worship services and the prohibition against indoor singing and chanting, and would stay for 30 days an injunction against the percentage attendance caps and the prohibition against indoor singing and chanting. JUSTICE ALITO would have the stay lift in 30 days unless the State demonstrates clearly that nothing short of those measures will reduce the community spread of COVID–19 at indoor religious gatherings to the same extent as do the restrictions the State enforces with respect to other activities it classifies as essential.

Here, Justice Alito would immediately enjoin complete prohibition on indoor worship. He would give the state 30 days to prove that the percentage caps and ban on singing are absolutely essential to prevent community spread. If the state cannot meed that burden, then in 30 days, the stay will lift. Critically, the state has the burden. The majority per curiam opinion suggests the burden belongs to the churches.

Justice Gorsuch wrote a six-page statement, joined by Justices Thomas and Alito. But Chief Justice Roberts, and Justices Kavanaugh and Barrett did not join this statement.

First, Justice Gorsuch said this case was not "difficult."

Often, courts addressing First Amendment free exercise challenges face difficult questions about whether a law re-flects " 'subtle departures from neutrality,' " " 'religious ger-rymander[ing],' " or "impermissible targeting" of religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 534–535 (1993). But not here. . . . 

When a State so obviously targets religion for differential treatment, our job becomes that much clearer. 

In the past, I have criticized Gorsuch for saying that tough cases are "simple." He really should avoid this over-confidence. I agree South Bay should prevail, but this case does present really weighty issues on both sides.

Second, he favorably cites Becket's amicus brief, which explained that California's indoor ban was unprecedented:

Apparently, Califor-nia is the only State in the country that has gone so far as to ban all indoor religious services. See Brief for Becket Fund for Religious Liberty as Amicus Curiae, 5–6. 

Third, Gorsuch finds that California's directives must be reviewed with strict scrutiny. Here, absolute deference is not warranted.

It has never been enough for the State to insist on deference or demand that individual rights give way to collective interests. Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government's assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard.

Fourth, Gorsuch explains that California cannot "thread the needle." It's directives are not narrowly tailored:

Nor has California sought to explain why it cannot address its legitimate concerns with rules short of a total ban. Each of the State's shortcomings are telltale signs this Court has long used to identify laws that fail strict scrutiny.

For example, why can't California limit the number of people who can gather at once?

Nor does California explain why the less restrictive option of limiting the number of people who may gather at one time is insufficient for houses of worship, even though it has found that answer adequate for so many stores and businesses

Fifth, Gorsuch addresses what I think is California's most arrogant defense: people can pray outside.

Next, the State tells us that worshippers are sure to seek close physical interactions. It touts its mild climate, too, suggesting that worshippers might enjoy more space out-doors. Yet, California is not as concerned with the close physical proximity of hairstylists or manicurists to their customers, whom they touch and remain near for extended periods. The State does not force them or retailers to do all their business in parking lots and parks. And California allows people to sit in relatively close proximity inside buses too. Nor, again, does California explain why the nar-rower options it thinks adequate in many secular settings—such as social distancing requirements, masks, cleaning, plexiglass barriers, and the like—cannot suffice here. Es-pecially when those measures are in routine use in religious services across the country today.

On Christmas, the temperature in the Bay Area was in the high-40s with rain and 25 mph wind gusts. No, that weather was not "mild."

Sixth, Justice Gorsuch explains this disparate treatment runs afoul of Roman Catholic Diocese:

. . . California singles out religion for worse treatment than many secular activities. At the same time, the State fails to explain why narrower options it finds sufficient in secular contexts do not satisfy its legitimate interests. Recently, this Court made it abundantly clear that edicts like California's fail strict scrutiny and violate the Constitution. See Roman Catholic Diocese of Brooklyn v. Cuomo, ante, at ___ (per cu-riam).

Seventh, Justice Gorsuch faults the lower courts who flouted Diocese of Brooklyn:

Today's order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.

He's right.

Eighth, Justice Gorsuch writes that the ban on singing may not be generally applicable:

It seems California's powerful enter-tainment industry has won an exemption. FN2 So, once more, we appear to have a State playing favorites during a pandemic, expending considerable effort to protect lucrative industries (casinos in Nevada; movie studios in California) while denying similar largesse to its faithful.

FN2 . . . . But the record suggests that music, film, and television studios are permitted to sing indoors.  . . . As the Court recognizes, though, nothing in today's order precludes future relief on this claim either.

Moreover, Gorsuch adds, the state could allow a single leader to sing:

Even if a full congregation singing hymns is too risky, California does not explain why even a single masked cantor cannot lead worship behind a mask and a plexiglass shield. Or why even a lone muezzin may not sing the call to prayer from a remote location inside a mosque as worshippers file in.

Finally, Justice Gorsuch addressed the game of whack-a-mole:

No doubt, California will argue on remand, as it has be-fore, that its prohibitions are merely temporary because vaccinations are underway. But the State's "temporary" ban on indoor worship has been in place since August 2020, and applied routinely since March. California no longer asks its movie studios, malls, and manicurists to wait. And one could be forgiven for doubting its asserted timeline. Government actors have been moving the goalposts on pandemic-related sacrifices for months, adopting new bench-marks that always seem to put restoration of liberty just around the corner. 


His closing is strong:

But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California's churches, synagogues, and mosques, something has gone seriously awry.

Justices Barrett and Kavanaugh

Justice Barrett wrote her first separate writing on the Court: a concurrence joined by Justice Kavanaugh.

First, she seems to agree with Justice Gorsuch's analysis, except for his discussion of signing and chanting.

I agree with JUSTICE GORSUCH's statement, save its contention that the Court should enjoin California's prohibition on singing and chanting during indoor services. The applicants bore the burden of establishing their entitlement to relief from the singing ban. In my view, they did not carry that burden—at least not on this record.

But she left open the possibility that the Church can make this showing in the future.

As the case comes to us, it remains unclear whether the singing ban applies across the board (and thus constitutes a neutral and generally applicable law) or else favors certain sectors (and thus triggers more searching review). Of course, if a chorister can sing in a Hollywood studio but not in her church, California's regulations cannot be viewed as neutral. But the record is uncertain, and the decisions below unfortunately shed little light on the issue. As the order notes, however, the applicants remain free to show that the singing ban is not generally applicable and to advance their claim accordingly.

Do we take it that Justices Barrett and Kavanaugh agree with the other points Gorsuch made? This opinion left me wanting much, much more clarity. And I wonder what Justice Kavanaugh would have done if Barrett had joined the Gorsuch statement? Did Kavanaugh peel off after reading Barrett's concurrence?

Chief Justice Roberts

Chief Justice Roberts wrote a two-paragraph concurring opinion, in which he repeats his position from South Bay I.

As I explained the last time the Court considered this evolving case, federal courts owe significant deference to politically accountable officials with the "background, compe-tence, and expertise to assess public health." South Bay United Pentecostal Church v. Newsom, 590 U. S. ___, ___ (2020) (opinion concurring in denial of application for injunctive relief ) (slip op., at 2).

Roberts saw no basis to enjoin the ban on singing:

The State has concluded, for example, that singing indoors poses a heightened risk of transmitting COVID–19. I see no basis in this record for overriding that aspect of the state public health framework.

But he rejects the absolute prohibition on indoor worship:

At the same time, the State's present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

And what are those "interests at stake"? Of course, Roberts will not tell us. He won't even mention the Free Exercise Clause. So, of course, lower courts will now adopt a new cockamamie test from the Chief: does the government's policy "reflect . . . expertise or discretion" or does it reflect "insufficient appreciation or consideration of the interests at stake"? Forget strict scrutiny. We are left with incoherent scrutiny. South Bay II is the new South Bay I. Roberts must know what he is doing with these meaningless tests. He simply can't vote with a clean conscience to close all indoor houses of worship. And he is content to have lower courts blindly cite him, without any clue what he means. Well done, Mr. Chief Justice.

Roberts repeat his usual pablum about deference and life tenured judge. You know the rest.

I adhere to the view that the "Constitution principally en-trusts the safety and the health of the people to the politi-cally accountable officials of the States." Ibid. (internal quotation marks and alteration omitted). But the Consti-tution also entrusts the protection of the people's rights to the Judiciary—not despite judges being shielded by life ten-ure, see post, at 6 (KAGAN, J., dissenting), but because they are. Deference, though broad, has its limits.

Summary of the Majority

Here is a brief summary of the majority votes. Six Justices immediately enjoined the ban on indoor worship. We know all six Justices agreed, because they told us so: Roberts, Thomas, Alito, Gorsuch, Kavanaugh, Barrett. Two justices (Thomas and Gorsuch) would have also immediately enjoined the percentage caps and ban on singing. One justice (Alito) would have enjoined the ban on singing, and put the burden on the state to defend the percentage caps. (Update: I previously wrote that Alito would not immediately enjoin the singing ban). Three justices (Roberts, Kavanaugh, and Barrett) would have put the burden on the church to introduce evidence showing that the percentage caps and ban on singing art not generally applicable. Huh? Let's repeat the fourth element from the per curiam opinion:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

This statement is not part of the Court's order. It is merely an observation of what could happen.

Justices Kagan, Breyer, and Sotomayor

Justice Kagan wrote a five-page dissent, which was joined by Justices Breyer and Sotomayor. She begins with the same refrain from Diocese: the Justices are not scientists, and religious worship is treated more favorably than secular activities

Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court dis-places the judgments of experts about how to respond to a raging pandemic. The Court orders California to weaken its restrictions on public gatherings by making a special exception for worship services. The majority does so even though the State's policies treat worship just as favorably as secular activities (including political assemblies) that, according to medical evidence, pose the same risk of COVID transmission. Under the Court's injunction, the State must instead treat worship services like secular activities that pose a much lesser danger. That mandate defies our caselaw, exceeds our judicial role, and risks worsening the pandemic.

Alas, Justice Kagan accepts the "mild climate" ruse.

Given California's mild climate, that restriction—the one the Court today lifts for houses of worship alone—does not amount to a ban on the activity. Worship services, along with other gatherings, have taken place outdoors throughout this winter. 

Justice Kagan includes no citation here. I doubt one exists. For the old and infirm, worshipping in a freezing, gusty rain is not an option. I am disappointed Justice Kagan indulged this line of argument. She should have ignored the weather issue altogether, like the lower court judges did. But she couldn't. She felt compelled to address the evidence before her. And she struck out.

Next, in a footnote, Justice Kagan explains why this case is different from Diocese of Brooklyn. My general rule of thumb is that substantive footnotes like these were added later in the drafting process. Perhaps Justice Breyer suggested it?

For much this reason, the Court's decision in Roman Catholic Diocese of Brooklyn v. Cuomo, ante, p. ___ (per curiam), does not require today's injunction. There, the Court found that New York had "single[d] out houses of worship for especially harsh treatment." Ante, at 3. But here, according to the epidemiological evidence in the record, California has treated houses of worship identically to other facilities with the same risk. It is the Court, not the State, that "single[s] out" religious activity— separating it from other equally risky public gatherings. What is more, Roman Catholic Diocese held, at a time when New York was lifting re-strictions to reflect declining case rates, that the policy at issue was "far more severe than has been shown to be required to prevent the spread of the virus." Ante, at 4. No court—or, at any rate, no court with any sense of modesty—can make that claim here. California's hospitals are near maximum capacity, and over 3,500 state residents perished from the vi-rus just last week.

Not quite. California has been lifting restrictions for the past few weeks–largely because Governor Newsom has recognized that his policies are no longer politically palatable, and he faces a recall election. Indeed, I thought this case would be mooted out because of the lifting of the order.

EK closes with a sharp note:

I fervently hope that the Court's intervention will not worsen the Nation's COVID crisis. But if this decision causes suffering, we will not pay. Our marble halls are now closed to the public, and our life ten-ure forever insulates us from responsibility for our errors. That would seem good reason to avoid disrupting a State's pandemic response. But the Court forges ahead regardless, insisting that science-based policy yield to judicial edict. I respectfully dissent.

In other news, Governor Cuomo of New York has articulated what is actually motivating COVID policies.

"When I say 'experts' in air quotes, it sounds like I'm saying I don't really trust the experts," Mr. Cuomo said at a news conference on Friday, referring to scientific expertise at all levels of government during the pandemic. "Because I don't. Because I don't."

Politics. All politicians are motivated by politics. And they find experts who submit declarations that support their views. No other state in the union has decided to shut down all indoor worship. None. I look forward to the day when these state health officials will sit for depositions, and explain the real reason why houses of worship were not deemed "essential."

NEXT: Prof. Eric Goldman & Me on Whether Governments Can Limit Platforms' Content Blocking Decisions

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  1. The church should have turned itself into Gruesome’s favorite restaurant and we could have avoided all this ugly business.

    1. Speaking of Stevie Ray Vaughan and Superstition . . .

      Choose reason. Every time. Be an adult.

      Or, at least, try.

      1. Kirkland, go out on the ocean in a storm.

        IF you make it back, you’ll be choosing “superstition…”

  2. Gorsuch’s concurrence is generally good. But I think his “moving the goalposts” claim is a tad overstated.

    Rather, in general in good faith, states and localities have been setting policy while making guesses as to their effects, the progress of the pandemic elsewhere, and how that will come to affect local conditions as people travel about. Those predictions have often been foolish — but as the saying goes, predictions are always difficult, especially about the future.

    Do I think at some point the clock runs out, as to how many predictions can go wrong before scrutiny ought change matters? Yes. A temporary extreme restriction (consistent with predicted duration, perhaps extended once or twice) might have been fine. But this restriction, over this much time, becomes much more like a permanent restriction than a temporary one.

    What California ought do, is phrase its restrictions without regard to religious exercise. Institute capacity or inter-household spacing limits (or both, with the lower limit applying). Add some intensifier for gatherings where singing and extended speaking occur. (And add an exception that accommodates Gorsuch’s solitary, separated muezzin, or some other separated soloist. Or perhaps a handful of them, again with extra required separation.)

    There was never any reason these requirements had to specifically identify religious practice, based in stereotypes as to what religious practice necessarily entails. The stereotype of crackpot places of worship that throw caution to the wind is real. But it is also a stereotype, and it is not the absolute rule, and particularly in California I expect such places are a distinct minority. Most places have been careful, and they will adhere to health and safety restrictions short of full prohibition if given the space to carry out services with some partial semblance of normality. California should do so.

    (Practically, this is how my Bay Area church worked during the few weeks in November we could physically meet. In a building seating 200+, we had maybe 25-30 attendees and 5-6 to preach, run a sound board, usher people in and out in distanced fashion after temperature checks, etc. Separation between household groups was closer to 10ft than 6ft. We had no singing, only an organ with words printed on bulletins, for a reduced number of hymns. Everyone wore masks. The pastor spoke, and fewer elements of liturgy were spoken than normal, behind masks. I don’t think you can reasonably argue that the risks of all this exceeded the risks of other gatherings permitted under California orders, nor had any meaningful likelihood of enabling additional person-to-person transmission. Likewise for the last couple months of live-streaming, undertaken by two tag-teaming pastors, a camera operator, a sound board engineer, a streaming/slides admin, a pianist/organist, and a soloist — again, all wearing masks except when speaking/singing, with significant distancing, in a building that seats 200+.)

    1. “What California ought do, is phrase its restrictions without regard to religious exercise.”

      Sure, they ought to do that. They didn’t. I’d suggest that this wasn’t inadvertent: Actual hostility towards religion isn’t uncommon in left-wing circles. They just don’t see any reason “clingers” should be accommodated.

      1. Bill Maher displayed some of that just last night. He more or less said that “Q” and mainstream religions are birds of a feather.

        But probably not an insignificant number of people in those groups might agree.

        1. Bill Maher is an idiot who is not one quarter as smart as he thinks he is. He has repeated made factual misstatements to support his political theories.

          1. Does he moonlight at “Today In Supreme Court History?”

      2. I agree left-wing circles can exhibit actual hostility. But that hostility generally manifests in attacks on secondary characteristics of free exercise, not in frontal assaults. And full indoor closures are a frontal assault.

        I think what’s more likely is that California has heretofore largely been coddled, by its own captured state judges and by a historically (and accidentally, save to the extent CAGOP imploded and Republicans can’t win a statewide election any more) lopsided Ninth Circuit. And when you’re not used to people complaining and having to listen to them, the path of least resistance is to do whatever is easiest. And just saying “poof! closed” is easier than thinking through (and demonstrating, based in science) what level of capacity reductions are suitable, what extent of singing can be tolerated with reasonable safety, etc.

        Basically California politicians are no different from Congress. It’s not that they’re actively out to routinely violate the limits on their powers, it’s that they just don’t think about those limits until they’re rudely awakened to them.

    2. This occurred because the authorities knew that generally applicable standards could not justify this closure.
      The fact that this decision is not unanimous is the real scandal here.

      1. “Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”

        That strikes me as a new justice being cautious — she and Kavanaugh are both new, both were controversially confirmed, and she’s just saying “tell me what we both know to be true.”

        1. if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.”

          This is utterly idiotic. Singers in studios are tested regularly, and if they sing as soloists they can be isolated while they perform. Church choristers sit in close proximity to one another for a long period of time, and spend a fair amount of that time actually singing.

          The situations just are not the same.

          1. “Singers in studios are tested regularly”

            Cite required.

          2. My Catholic church at present has a one person choir, about 20 feet from the nearest parishioner. Try again.

          3. Btw, choristers can and do sing while wearing masks. Singing raises a bogus issue

    3. While not Covid or First Amendment related here is an example of “good faith” by a state when it comes to SCOTUS.


      1. That case wasn’t good faith, I agree.

        But the entire policy at issue there was not good faith but rather active, overt prejudice. Concerns about concentrations of people from separate households indoors inhaling each other’s breath, in contrast, are legitimate and unrelated to any animosity toward the activities undertaken.

        The states in imposing restrictions now, are not just on power trips. They are trying to mitigate real problems, using extraordinary measures that no one enjoys. As Gavin Newsom may shortly be able to experience, impositions are not a way to win voters to your side. (Whereas New York’s stunt may have won voters, outside upstate New York.) Pols aren’t just doing this stuff because it fulfills their long-held belief that churches must be exterminated, no matter that it picks clear fights that it is now, finally, starting to lose.

        1. I think it started out trying to mitigate real problems, but in some states, once they realized the courts weren’t going to police them, began to be a power trip, too.

          1. …but to what end? Politicians power-trip because it serves their own ends somehow. What exactly is the benefit to a politician of arbitrariness for its own sake? Lacking a clear answer, I think the simpler answer is just carelessness brought on by not being shot down by courts.

  3. Politics. All politicians are motivated by politics. And they find experts who submit declarations that support their views. No other state in the union has decided to shut down all indoor worship. None. I look forward to the day when these state health officials will sit for depositions, and explain the real reason why houses of worship were not deemed “essential.”

    In politicians, motivation by politics is what you want. That’s where the public accountability comes in.

    As for the last bit, about state health officials sitting for depositions, and “real reasons,” WTF?

    1. Perhaps those Houses of Worship just didn’t donate enough to the right politicians, like Hollywood did.

      1. Why capitalize ‘houses of worship.’

        Other than illiteracy, I mean.

        1. Why end a question with a period?

          Other than illiteracy, I mean.

  4. I’m a little worried by the liberal justices increasing “deference to science” as a justification to restrict Constitutional Rights, especially regarding science which is fairly novel, and especially science which is seemingly selectively applied against certain groups.

    History is replete with examples of “science” (Eugenics, Lysenkoism, Scientific Racism, Psychomotor Patterning, and more) that were wrong, and often used to promote socio-political choices, and often to violate people’s rights.

    In cases where science is used to justify restricting people’s rights…especially restricting “certain people’s” rights…the Justices cannot blindly “defer to science”. Otherwise “science” will be used to justify violation of our rights.

  5. SO, can we finally admit that the separation of church and state only goes one way?

    1. Free exercise of religion only goes one way, that is correct.

  6. Kagan’s statement in dissent – “Justices of this Court are not scientists. Nor do we know much about public health policy. Yet today the Court dis-places the judgments of experts about how to respond to a raging pandemic. ”

    This is a pathetic statement. True the justices on the court are not scientists. Neither are the politicians scientists.

    California is one of the higher total infection rate states at 8600 per 100k population. The US IR per 100k is approx 8100. California has had some of the strongest mitigation protocols in place based the the recomendations of the experts, yet have done worse than the states that had less severe restrictions contrary to the experts.

    The deference to activists who cloak themselves as scientists is misplaced in constitutional law

    1. It’s beyond pathetic. How can you get to a law degree, especially from top schools, without doing well in all your high school and college courses, including required science ones?

      Have these people no minds? Do these top thinkers not have the slightest polymath urge to just learn anything that passes in front of their faces?

      1. I have no doubt that if Kagan’s political leanings were infringed upon, she wouldn’t hesitate to overrule the “scientists.”

        1. Well, an objective scientist could look at actuarial tables and conclude that since homosexuality has a statistical correlation with a significantly shortened lifespan (and it does), the state has a legitimate police power interest in prohibiting it.

          NB: I am neither saying that the state should do this, nor that the correlation is causal, only that a statistical relationship exists. My intent here is to demonstrate a specific example to Armchair’s hypothetical.

          1. What is even worse, Mr. – er – “Dr”. Ed, is that you felt constrained to have to “Mansplain” your example. In case you don’t get my point, its because you’re apparently fearful that [most likely the] “Wokist’s” will drag you through unholy Hell over what they chose to interpret as your “Homophobia” simply because you decided to treat those who would read your words were actually rational, reasonable adults who didn’t need guideposts so they wouldn’t “Misread Between the Lines”. ” … yet at the same time likelier to make a Hell of earth. This … stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.” – C. S. Lewis

    2. The politicians aren’t scientists, but they are also removable from office.

      The Newsom recall demonstrates Kagan’s point, not Blackman’s. If a politician screws up, he can be removed. If six SCOTUS judges decide to accept right wing talking points and risk people’s lives, who removes them?

      1. Right wing talking points……like defending Constitutional Rights.

        1. The Constitution does not say what should be done here. We don’t know from the text what level of free exercise is mandated in a pandemic.

          This is common law rulemaking.

          1. “Congress shall make no law …”

            1. …respecting an establishment of religion, or prohibiting the free exercise thereof…;

              State of California: You’re not allowed to worship in your own Houses of Worship.

              1. If your level of thinking is not advanced beyond “no law”, you have no business opining on constitutional cases.

                1. How ironic that you don’t see the problem with taking plain words in the constitution literally as they’re written. This is the absolute crux of conservatives’ complaint about modern constitutional law.

                  1. That should be “NOT taking plain words in the constitution”

                2. Sigh….

                  1. Your ever so subtle appear to intellectual superiority, while not actually rebutting the arguments is unfortunate.

                  2. Your failure to take the plain text of the Constitution into account is alarming. “Right wing talking points” like “The plain text of our Constitutional Rights” seem to be ignored by others when convenient.

                  3. The REASON those Constitutional rights are in there, in plain text, is to prevent against the Government infringing on those rights, as it did historically, and as it is doing now. They should be listened to, and adhered to, as much as humanly possible. As in this case.

                  4. When “revisionist” schools of lawyers distort the plain text away, it degrades the Constitution, degrades the protection of our fundamental rights, and ultimately may endanger the entire Constitution. When “freedom OF religion” somehow gets twisted into “Freedom from religion” it’s a problem. If that can be distorted, other provisions can be distorted just as easily.

                  1. I AM intellectually superior to someone who thinks “no law” resolves a super-complicated free exercise issue involving competing interests.

                    1. Competing rights, Mr. Superior?

                      Pray tell which rights are coming into conflict?

                    2. “I AM intellectually superior”…

                      Uh huh…. Sure. Good luck with that in your legal argument.

                    3. DWB, I don’t have to argue with people who think the words “no law” solve all the myriad balancing problems and competing interests in over 100 years of First Amendment caselaw. Anyone who said that on a 1L Constitutional Law exam would get an F; anyone who said that to a Court would be in big trouble with the judge.

                      This is like an evolutionary biologist arguing with creationists. Or an economist arguing with a follower of “Austrian economics”. There is simply a way that constitutional law works, you guys have a simplistic theory that does not work, and you have to drop that theory to have a serious discussion.

              2. Actually, Armchair — it never meant that.

                The Commonwealth of Massachusetts had an established (taxpayer funded) church until 1855, although started exempting Baptists (who could prove they were supporting a Baptist church) in 1820.

                And as I am sure you know, the First Amendment passed in 1791.

                A bit of history: The Puritan Church became the Congregational Church and that’s why you will see a Congo church in the center of most older New England towns. The Baptists split off from the Puritans over a bunch of issues, including immersion baptism. CT and ME were once part of MA, NH is a historical accident involving overlapping land grants (which is why it only has 18 miles of seacoast).

                All of New England was Puritan — John Adam’s father-in-law was a Minister. PA was Quaker, MD was Catholic, VA was “fallen Anglican”, etc. The issue was that no state wanted another state’s religion imposed on them — which Boston (then our largest city) would have loved to have done. Conversely, MA had it’s charter yanked after Cromwell’s demise and was worried about Federal interference in what was a theocracy.

                Arguably, the 14th Amendment changed the meaning of the 1st, but it was never intended to do what a lot of people think it was.

                1. It must be very interesting in the fantasy world you’ve created for yourself.

              3. The text doesn’t tell us if “free exercise” includes disobeying a neutral and generally applicable law. Nor, does it tell us what constitutes a neutral and generally applicable law.

      2. Your point would be valid, except Kagan made no effort to distinquish why the science is different based on whether it is a religious activity or a non religious activity. The failure to distinquish why the same science is different undercuts her claim of deference to scientists.

        1. I believe there was actually expert testimony on the distinctions between the risks in various settings.

          1. There was. Now having said that, I think it’s also undoubtedly true that Hollywood is able to get exemptions that wouldn’t have been give to a church. And that’s a real problem.

            1. Hollywood might get an exemption that most other secular businesses don’t get. Using the Hollywood exemption as the basis for concluding the regulations are not neutral or generally applicable threatens to de facto reverse Employment Division.

              1. If there’s a “Hollywood exemption”, we have left Smith‘s “general applicability” behind, and so Smith is not at issue.

                1. Your statement that a Hollywood exemption renders the regulation not generally applicable is conclusory (as was Barrett’s, but she said it was “of course” not neutral). What’s the argument that supports your conclusion?

                  1. I support a strict test for “generally applicable”.

                    “Generally applicable” ought to mean that it applies to everyone equally. Once there are exceptions, it does not apply to everyone equally and is therefore not “generally applicable”.

                    1. Exceptions based on who is covered/not covered.

                    2. Under that standard, I believe Employment Division is de facto reversed because virtually every law has exemptions. For example, Title VII prohibits discrimination in employment on the basis of sexual orientation or gender identity (see Bostock). But, it exempts employers with fewer than 15 employees. Thus under your standard, strict scrutiny applies to any religious objection to hiring gay or transgender people (or women, blacks or Jews) even though most employers with secular objections have to obey the law.

                      That outcome strikes me as quite misplaced.

      3. Democrat politicians cannot realistically be removed in CA. This is why the Bill of Rights exists and why Patrick Henry and the anti-Federalists were right. These are supposed to be inalienable rights!! You cannot legally infringe upon this right ever, but especially for a virus with a 99.9 % survival rate.

        1. We removed Gray Davis not too long ago.

        2. gray davis would be a notable exception in 2003.

          Granted, it is much more difficult now with the greater entrenchment at all levels of government including state judges. I would speculate that a high level of signatures getting thrown out. Possibly a different level of scrutiny to ascertain the validity of a signature vs the level of scrutiny to ascertain the validity of a vote.

          1. Republicans have a hard time in California.

            I blame education and decency.

            1. “Republicans have a hard time in California.
              I blame education and decency.”

              Good point – though I doubt California will be capable of improving the states education as long as the progressive teacher unions are in charge.

              1. You prefer backwater religious schooling, Joe? Homeschooling by clingers? Conservative-controlled nonsense factories?

                Our strongest teaching and research institutions are operated in, by, and for the liberal-libertarian mainstream. Conservative-controlled schools are mostly fourth-tier, science-disdaining, nonsense-teaching, dogma-enforcing, censorship-shackled yahoo farms with sketchy accreditation.

                You get to whine about it all you wish, though.

                There are important reasons underlying this point, Joe_dallas, that are damning for conservatives.

                1. Well, “Reverand”,
                  “However beautiful the strategy, you should occasionally look at the results.” –Sir Winston Churchill, British prime minister

                  Oh, the “Results”?

                  “In 100 years we have gone from teaching Latin and Greek in high school to teaching Remedial English in college.” -Joseph Sobran

                  1. [Addendum: Get my point, Rev?]

            2. Decency? I California?


      4. Dillan — where does any of this say that California can’t shut EVERYTHING down?

        The issue is shutting down one venue and not others, which is a very different thing. It’s like the difference between not letting a Black motorist drive down a certain road (which is unconstitutional) and not letting *any* motorists drive down that road (which is perfectly legal).

    3. Placing the judgment in the hands of the elected branches rather than unelected judges is the very heart of Employment Division, which in my opinion is excellent constitutional law.

      1. Sounds like you’re really referencing Chevron there…

  7. I do want to express agreement with the conservatives on one issue- the exemptions to powerful industries.

    If they wanted to announce a rule that an exemption for a powerful local industry subjects the entire regime to strict scrutiny that wouldn’t bother me. Because they are right about the rent seeking.

  8. Of course, if a chorister can sing in a Hollywood studio but not in her church, California’s regulations cannot be viewed as neutral.

    That confident (“of course”) conclusion sounds an awful lot like it is based on Kavanaugh’s “most-favored nation” standard. If Barrett has bought into that standard, Employment Division is de facto (because all laws have exemptions) not long for this world.

  9. Roberts will not tell us. He won’t even mention the Free Exercise Clause

    I applaud Roberts for his stance. Free Exercise doctrine should not be driven by the unusual case of COVID-19.

    1. If the constitution is the basis for all law, and there is nothing in the constitution regarding Covid, then how can a sentient being type what you just typed?

      1. The hard question is what constitutes a neutral and generally applicable law. Unusual cases such as COVID-19 should not be the basis for making that determination which will applied to numerous common cases.

  10. Kagan’s-
    Alas, Justice Kagan accepts the “mild climate” ruse.
    “Given California’s mild climate, that restriction—the one the Court today lifts for houses of worship alone—does not amount to a ban on the activity. Worship services, along with other gatherings, have taken place outdoors throughout this winter. ”

    California is a big state, approx 700 from the south border to the north border, 7 degree’s latitude. Redding CA average Jan temp 47f vs sandiego aver jan temp of 59f.

    Kagan’s justification of upholding newsoms restrictions shows a hostility to religion

    1. How many people live in Redding? How many live in San Diego Metro?

      1. Arent the same restrictions applicable to the entire state or just selected metropolitan areas?

        If just selected metropolitan areas, then the same/similar restrictions would apply to San Diego as San Francisco, would the not?

        san diego annual rainfall is approx 10 in vs 23 inches in San Fran.

        Just pointing out another example her ‘deference to scientists” is exhibiting a hostility to religion since the different treatment of religion vs non religious activity can’t be justified based on science.

      2. So, it’s OK to impede on people’s Congressional rights, so long as it’s just not the majority of people?

        1. LOL! I have a Meme (photo w/Candace Owen’s profile which succinctly states: “My freedom does not end where your fear begins”.

    2. Isn’t Donner Pass in California?

      I seem to remember something about so much snow there one year that folks had to resort to cannibalism. And I do know that CalTrans has a significant cadre of snow plows, they gotta be using them *somewhere* in California…

  11. Hm, blind deference to experts in the midst of a crisis, where have I heard that one before (Buck v Bell, Korematsu, etc …)

    I am the last person to deny the validity of scientific expertise, if I did that would invalidate the last couple years of my own education lol. But these restrictions weren’t “science.” Science doesn’t say the virus magically is more powerful than in churches. It doesn’t say virus is more potent in California. It doesn’t say the virus magically avoids movie studios.

    These policies are not pure expressions of science. They are ad-hoc political maneuvers designed to do something beneficial while accommodating different political interests. I’m even willing to say its in good faith. But it can and should be reviewable.

    One more thing: As the world becomes more complex and more interconnected, judges can’t just hide behind “oh, we aren’t experts.” This isnt just true of the liberals but of the conservatives as well … they need to make an effort to actually learn this stuff. Experts will disagree. Judges need to learn to navigate that disagreement. Textualism has done a lot to remove the need for expertise and make it more objective … but it cannot do everything.

    And the should apply common sense to scenarios like the one here.

  12. What stands out to me in all these cases is these churches showing complete disregard for the health and well being of their congregants. That disgusts me. They just do not care in the slightest if their worshipers die a horrible death alone in a hospital, and by now many have across the county. I foresee a long and hot afterlife for them.

    1. Are they? Really? I’m sure some are … but to make that assumption that every church unwilling to ban service entirely is somehow killing their congregation is absurd.

      The state government allows certain businesses to open. Are those same businesss killing their customers? Do you show the same disgust there? No one says the state can’t shut down an unsafe church. Its just they cannot categorically ban service.

      1. This church wants to eliminate the restrictions. What other comparable businesses are open?

    2. MollyGodiva
      February.6.2021 at 11:57 am
      “What stands out to me in all these cases is these churches showing complete disregard for the health and well being of their congregants. That disgusts me”

      you comment would be valid – except the religious organizations are seeking equal treatment / restrictions compared with non religious activities. ie a relaxation of restriction which would be equal to non religious activities , not restrictions that are more lax than non religious activities.

      you are singling out religious service for harsher restrictions. You statement of compassion for the health congregants comes across as a false display of compassion to enhance the validity of your comment.

      1. What other place is allowed in CA to pack a small room full of people for two hours with singing?

        1. How about any production of a musical? Film production is exempt from the restrictions Newell put on churches. The whole basis of this case was that churches are treated differently. ACB dropped the ball and conceded that.

          1. Film productions that have singing (not many) follow additional precautions that the churches do not, and in this case, are trying to overturn.

            1. Such as? No offense, but the entire case was the argument that churches ARE being treated differently. No one on either side of the legal view is making the argument that churches are being treated the same as everyone else. Why are you making it?

              1. More rigorous Covid testing of all participants (multiple times per week and everyone must test negative) chief among those.

                1. Who says churches aren’t doing that?

                  1. Me. Churches aren’t doing that.

            2. Actually Molly. You may be correct in some cases but certainly not in all. In some anyone singing is also wearing a mask.

        2. “MollyGodiva
          February.6.2021 at 12:13 pm
          What other place is allowed in CA to pack a small room full of people for two hours with singing?”

          You might try to become familiar with the actual case before you continue to embarrass yourself misrepresenting the facts and the pleadings

        3. Well, not these churches — which didn’t challenge 25% occupancy restrictions, hence cannot be accused of having “packed” rooms. And I dunno what their churches are like, but the typical church’s room is not “small”: as the Chief notes, California’s restriction was a zero-person limit, which is 25% below a 25% occupancy limit.

          And as I noted elsewhere, you’re wrong if you think churches everywhere are just business as usual, including identical amounts of singing as pre-pandemic. When my church briefly reopened in November, we were both below 25% occupancy and did not have any singing.

          Try stepping outside of stereotypes and examining churches individually, not just assuming that some high-profile reckless cases represent the norm.

    3. Churches do NOT want a dead congregation.

      A dead congregation can’t donate to the church, which will then fold.

      There’s other issues Molly, but if you want to ignore what a church is and is for and go with strict blind economics, consider the above.

      1. That explains the rattlesnake-juggling, shared communion vessels, and aversion to medical treatment!

        1. My church does none of the above.

          And rattlesnakes are actually protected in Massachusetts and someone would drag in the Endangered Species Act (etc.) if anyone ever wanted to juggle them….

          1. Does MA even have rattlesnakes – would have thought MA was too far north for that species of snakes.

        2. RAK, your bigotry and stupidity are overwhelming.

        3. Somehow, Reverend Kirkland, I have the impression you would be in favor of caring, legislative persuasion to cure them of their unclean habits: “Of all tyrannies, a tyranny sincerely exercised for the good of its victim may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated, but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be ‘cured’ against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.” – C. S. Lewis

  13. Also, if I recall, wasn’t there a case where the FDA decided to continue a ban on deliveries of abortion pills (forcing people to pick it up in person) and the same justices dissenting here penned a dissent there expressing saying the FDA is wrong and this is stupid? Where was all the high mindedness about deference to experts then? It’s all made up! You may think banning deliveries of those pills. regardless of the “expert determination” is entirely nonsensical! That’s a valid view to have and implement in a judicial opinion.

    Maybe I’m misrembering that case, but it seems that this deference is simply defer when it matches my priors.

    1. The FDA decision was made by political appointees at the direction of the Trump administration, not the career experts.

      1. I see. If Trump appointed them, they’re political; if Newsom or Biden did, they’re reputable scientists and are above question.

        Got it.

        1. No. Government agencies have two types of people, the political appointees at the top, and the career professionals who make up the bulk of the workers. If the recommendations come from the professionals and relayed and implemented by the political appointees it is based on science, if the political appointees dictate what the policy is and over rides the professionals, then it is based on politics.

          1. So the woman who isn’t required to chat with a pharmacist and takes the abortion pill notwithstanding the fact that she also has beta blockers and Adderall in her system — AND DIES as this is a fatal combination — isn’t dead?

            In case you are wondering, B/C prevents the body from dumping the Beta Blocker (now also taken for anxiety), the Adderall (or Cocaine) causes the brain to call for more O2, the body dumps both alpha and beta into the bloodstream, inexorably more of both when the beta (blocked) doesn’t work, and the person’s heart explodes.

            OK, not technically “explodes” — my MD tried to explain exactly what happens, and then concluded “‘explodes’ is close enough.” Victim will be aspirating blood.

            But in Molly’s world, this doesn’t happen…

            1. NB: This is the “morning after” abortion pill, not to be confused with the other one. That can be lethal for other reasons, I forget what.

              There IS a reason why having a medical professional — pharmacist if not MD — chat with the woman first was a very good idea…

              1. Or, alternatively, people could rely on “Dr.” Ed, who’s about as much of an expert on the subject as Mr. Ed was.

          2. Perhaps sometimes.
            For example Obama’s last Sec of Energy was Prof. Ernoe Moniz of MIT, a distinguished nuclear physicist. His first was Prof. Steven Chu, a Nobel prize winner in physics. NIH has had highly esteemed physicians (members of the National Academy) as its director. Actually the list goes on. Have there been hacks? Yes. Hazel O’Leary appointed by Bill Clinton. She was a vainglorious lawyer

      2. Well, the original regulation was drafted during the Obama administration I believe. The decision the Trump FDA made was simply to continue enforcing it during the pandemic. So even if we are going to accept this false dichotomy where the FDA is somehow politicized but the California health departments are not, its not even clear Trumps appointees would be to blame here.

        And that gets at the point, doesn’t it? If the FDA is somewhat political, if the health authorities are political bodies, then they absolutely should be subject to judicial review!

        1. That’s not what she meant by political appointee.

          1. But she was far from correct even most of the time in agencies with major science portfolios

            1. I generally need to go above the career employees to get permission for any big policy decision.

              And under Trump lots more than usual of policy changes were made top down. Not necessarily all wrong decisions, but certainly not tapping agency career civil servants’ expertise as previously was done.
              I don’t know if she’s right in this particular case, but she is definitely not manifestly wrong as to how research agencies policy making works.

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