Law and Religion

Wisconsin S. Ct. Strikes Down Private School Closure Order

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From the majority opinion in James v. Heinrich, written by Justice Rebecca Grassl Bradley and joined by Chief Justice Annette Ziegler and Justices Patience Roggensack and, in relevant part, Brian Hagedorn:

We agree with the Petitioners and hold: (1) local health officers do not have the statutory power to close schools under Wis. Stat. § 252.03; and (2) [the closure order] infringes the Petitioners' fundamental right to the free exercise of religion guaranteed under Article I, Section 18 of the Wisconsin Constitution, which Jacobson v. Massachusetts cannot override. Accordingly, those portions of the Order restricting or prohibiting in-person instruction are unlawful, unenforceable, and are hereby vacated.

An excerpt from the majority's explanation of why the law failed strict scrutiny under the state free exercise provision (which had indeed been interpreted by past cases as requiring strict scrutiny of denials of religious exemptions from generally applicable laws):

Heinrich's earlier orders implemented less restrictive means such as specifying classroom student limits, mandating the use of masks, and requiring social distancing. In Emergency Order #8, for example, Heinrich outlined detailed safety protocols for schools, including "[e]nsuring students are at least six (6) feet from other students" and requiring that "employees are provided with and wear face coverings." These nuanced and tailored measures were completely abandoned in the Order at issue, replaced by the drastic step of forbidding in-person religious school education entirely for students in grades 3-12.

The Order distinguishes between the age demographics of students, permitting only students in grades K-2 to receive inperson instruction while relegating all students in grades 3-12 to virtual instruction only. By the Order's own reasoning, this distinction was unnecessary to achieve the government's goals. As stated in the Order's introduction, "[o]utbreaks and clusters among cases aged 5-17 have been rare." Nevertheless, a five- year-old student in kindergarten and an eight-year-old student in third grade, despite comparable infrequencies of COVID-19 transmission, were afforded entirely different educations in Dane County.

Furthermore, while students in grades 3-12 were prohibited from attending school in person, the Order allowed all higher education institutions to continue to provide in-person learning and dormitory housing, subject to certain restrictions. The Order failed to explain why college-aged students could continue to live, learn, and socialize in close communities, while students in grades 3-12 were consigned to computer screens. While the Order demonstrates the availability of less restrictive alternatives and employs them for college students as well as students in grades K-2, the Order denies them to students in grades 3-12.

Justice Rebecca Dallet, joined by Justices Ann Walsh Bradley and Jill Karofsky, dissented; as to religious exemptions, they reasoned:

Section 8 of the Order explicitly exempts religious practices from its in-person gathering restrictions: "[r]eligious entities are exempt from mass gathering requirements for religious services and religious practices" (emphases added). The majority makes no mention of that provision——possibly because it torpedoes the majority's constitutional analysis. If in-person education on every subject, religious or not, is truly religious practice, as some petitioners here claim, nothing in the Order burdens that practice.

Our cobloggers Will Baude and Stephen Sachs' Harvard Law Review article, The Law of Interpretation, is cited three times by the dissent; Randy Barnett's book Our Republican Constitution is cited by the majority.

NEXT: The Mischief Rule

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  1. With respect, the headline “Wisconsin S. Ct. Strikes Down Restriction on Private School Closure Orders” was confusing to me. I interpreted it as saying that the ruling struck down restrictions on the closure orders, not restrictions on private schools. FWIW.

    1. Whoops, fixed, thanks!

      1. Still confusing to me.

        1. You can read the whole post for clarification.

          1. I read the whole post, and I understand it.

            All that’s confusing is (was) the headline.

            1. I think he revised it twice. Now it makes sense, but it was still confusing after the first “fix.”

  2. Am I missing something? The headline seems inaccurate. Didn’t the court strike down an order, not a restriction on orders?

  3. Ah, the final nail in the coffin that confirms the hypocrisy of religious schools.

    These schools demand government assistance under the guise that such assistance is promoting religion and then demand freedom from government regulation against things like discrimination protections and legitimate government attempts to prevent the spread of disease and save lives because they are religious institutions.

    At the end of the day tax dollars from individuals who do not support a specific religion support religious education, as admitted to by these schools who claim their religious status exempts them from government. And supposed conservatives, who claim to support the Constituton and freedom of relgion have no problem forcing citizens to support relgion. Why? Because the religion being supported is the ‘right’ religion.

    1. These schools demand government assistance under the guise that such assistance is promoting religion and then demand freedom from government regulation against things like discrimination protections and legitimate government attempts to prevent the spread of disease and save lives because they are religious institutions.

      Exactly right… The whole point of government funds going to religious schools was that the education was secular and the religion wasn’t the primary purpose of the school.

      But now they are essentially claiming the opposite when it suits them…the education part is part of the exercise of religion….

      Then they should lose any and all government funding if just being on campus is an exercise of their religion.

      You don’t get to have it both ways.

      1. The government could have suspended all funding for any private school during the pandemic, but that’s not what they did. But I don’t think they can say that if a religious school takes government funding they give up all their first amendment rights.

      2. I expect the American mainstream to ditch this ‘heads we win, tails you lose’ approach of which religious claimants have become fond, with assistance from Republican judges.

        The clingers claim they can discriminate against everyone and anyone, but that no one can discriminate against them.

        The clingers claim a right to engage in ugly bigotry so long as they cloak that old-timey conduct in superstition.

        The clingers expect government to fund nonsense-teaching schools, and mainstream America to accredit those substandard schools, but also claim those schools are engaged in religious practices.

        As organized religion continues to fade in America, and the Republicans become increasingly uncompetitive in national elections, and the bigots become even more marginalized in modern America, these recent expansions in snowflake-class privileges for those claiming religion-based entitlement will be dismantled.

        Enjoy it while you can, clingers.

        1. Hi, Artie. Republicans have learned. If losing at 3 AM, back up the trucks, with still warm from the press ballots, unfolded, unsigned, with only the President vote checked off. You Dem degenerates can only win by cheating. That is the way of the Commie. For your own welfare, all Commies shop the Caracas apartment. They just solved the toilet paper shortage. They have a food shortage.

      3. You do, actually. Government may not hurt religion, which takes these two forms in this discussion: handing out money to all school takers, except religion because it’s religion, and closing religious schools while ice cream parlors and the governor’s favorite golf 19th hole stay open.

      4. From the majority opinion:

        Indeed, the Order did not merely burden academic schooling; it burdened the exercise of religious practices. While Heinrich allowed schools to use their premises for child care and youth recreational activities, the government barred students from attending Mass, receiving Holy Communion at weekly Masses with their classmates and teachers, receiving the sacrament of Confession at school, participating in communal prayer with their peers, and going on retreats and service missions throughout the area.

        I’m curious, do you just get great pleasure from beating up straw men, and that’s why you post here?

    2. confirms the hypocrisy of religious schools.

      Hardly. The hypocrisy is sitting on the opposite side of the table away from them. You start by taking their tax dollars at the point of a gun. You give it back to them as a “subsidy” and then claim they are hypocrites because they want their money back to educate their children as they see fit. The only government assistance they require is being left alone, something you as a progressive are unwilling to do.

      1. Bingo: They want to take everything away, and then return some of it on the condition it not be used for religious purposes.

        The problem isn’t the return, it’s taking it in the first place.

    3. This is one of your siller posts.

      Religious schools are founded with the mission of educating children within a religious tradition, and that includes religious instruction. That is why parents send them there.

      At the same time, they engage in secular education. A religious school that teaches math, english and science is engaged in secular act, which generally is mandated by the state. They also have non-religious activities, such as gyms, sports, playgrounds, etc. The government does sometimes fund these for various reasons.

      Religious schools have never claimed to be secular. What they have claimed is that they are engaged in secular activities, as to which they should be entitled to government money no less than any other private school. If the state decides to spend money to help nursery schools to redo their playgrounds with shredded tires (either because it wants to promote child safety or because it wants to promote recycling, or both), then there is no reason a nursery school that happens to be run by a church should not get the money. There is nothing religious about that activity, and whatever the state is trying to promote with its money is just as effective at the church-sponsored school than a nursery school owner by a private, secular company. It is simple bigotry to say, that school may not get the playground money because it is run by a church, but the other school may.
      It is also worth noting that the parents here asserted a third claim, that the school closure interfered with their Constitutional right to direct the upbringing of their children, which the Supreme Court recognized in Pierce v. Soc. of Sisters. The Wisconsin Supreme COurt noted that, but did not reach the argument. IMO, that would have been a better, and broader, basis to ground the opinion in.

    4. “At the end of the day tax dollars from individuals who do not support a specific religion support religious education”

      At the end of the day, tax dollars from people who don’t support the left wing trash taught in public schools are still spent supporting that left wing trash.

      Since you have no problem with that, your whine is just as much trash as the rest of your beliefs

    5. The relevant questions here are:
      1: Is the dissent stupid, or dishonest?
      2: Are you stupid, or just dishonest, for pretending to believe the dissent?

      A city passes a law saying you can’t go to church. “You are still allowed to pray at home”, says the 3 amigos on the WISC, “so this isn’t an an unconstitutional burden on religion.” If “this makes sense” to you, you have nothing of value to offer

  4. What a joke.

    So basically the judiciary is out to make “its against my religion” basically a veto for any rule or regulation someone doesn’t like.

    The 1st amendment is supposed to prevent people being singled our or presecuted based on their religion, not using religion as an excuse to avoid rules we don’t like.

    We’ve gone from a country that doesn’t discriminate against you or your religion to giving religious entities get special privileges over secular entities.

    That’s nonsense and needs to be reversed ASAP.

    If all schools are closed due to a public health order, it isn’t religious discrimination if a religious private school has to follow that order.

    Even the quoted analysis makes no sense in this context. The analysis may be used as a justification to overturn the 3-12 prohibition for everyone, but that doesn’t violate anyone’s free exercise of their religion nor does it discriminate against someone on the basis of their religion.

    Believing in superstitions or fairly tales about all powerful deities should not grant anyone exception to for the community at large. Rules that are not targeting religious folks should not have exceptions carved out for religious people.

    More outcome based conservative jurisprudence.

    1. Uncounted numbers of people died in religious wars. Blame religion, I have no problem, and do.

      But to stop that, you have to have a detente, an agreed convention to live and let live, and disallow any religion from using the power of government to advance itself, and hurt its enemies.

      “Hooray, we kicked religion out of direct control! Now let’s work to hurt them, either directly under the sophistry you can do anything as long as it’s a “general” applicablity law, or indirectly by taxing the populace then handing the money back to do something religion’s been doing for millenia before government stuck its nose in, hospitals, orphanages, old people, etc. and squeaking we get the honor of stripping religion out of it.”

      Politics is religion, and we suffer the same evils under whatever group ascendant chooses to do.

      You just got out from under Trump. Your solution? Double down on your own dictatorial impulses.

      1. Now let’s work to hurt them, either directly under the sophistry you can do anything as long as it’s a “general” applicablity law,

        General applicability for a law ought to be construed in most cases as adequate proof that religion has not been targeted, and beyond that, as proof that whatever restrictions the law demands are reasonable. There should be a presumption that, absent explicit religious targeting in the text of the law, the legislature’s decision to enact a general law was done without prejudice to religion, because all burdens would fall on all voters alike.

        Beyond that, in cases demanding exceptions to laws of general applicability, courts should take no notice of specific religious doctrines. The content of specific religions cannot become legitimate subject matter for American courts to decide, nor be allowed as evidence to affect decisions.

        The first amendment test that ought to be considered is whether the text of the law specifically targets religion, or as a corollary, whether the law’s effects would burden only the religious. Those are the cases that properly warrant strict scrutiny.

        1. “General applicability for a law ought to be construed in most cases as adequate proof that religion has not been targeted,”

          So, you agree that we should drop all this ‘disparate impact’ crap? Being facially non-discriminatory is enough? I’m glad to hear that. I expect this stance to be reflected in your future comments here.

          Look, we’ve got a first amendment that guarantees free exercise of religion. Not, exercise of religion restricted similarly to secular activities, free exercise. You might prefer a different 1st amendment than the one we’ve actually got, but the one we actually have is actively solicitous of religion, not merely indifferent.

          If your point had been that secular activities should be so free that religious activities wouldn’t NEED any extra increment of freedom to be free, I’d endorse that. But, no, your point is that you think it’s enough that the same hob nailed boot that’s stamping on the secular face, forever, not stamp on the religious face any harder.

          Well, screw that, it says “free” exercise, not “similarly oppressed” exercise. Level up secular liberty, don’t level down religious liberty.

        2. “General applicability for a law ought to be construed in most cases as adequate proof that religion has not been targeted, and beyond that, as proof that whatever restrictions the law demands are reasonable.”

          Wow, that’s an amazingly stupid statement.

          1: “General applicability” == “reasonable”? Are you on drugs? “We have no evidence that this will lead to a positive outcome, the evidence that exists say it won’t, but we order everyone to do it anyway” is the height of “unreasonable.” And it’s what happened here

          2: “General applicability” == “adequate proof that religion has not been targeted”? “Taking peyote is a crime for anyone”? Don’t you pretend to be a lawyer of some sort? Are you utterly ignorant of Scotus history?

          RFRA was passed with massive Democrat majorities, and signed into law by President Clinton, on the belief that “generally applicable laws” were regularly targeting religious behavior, and that the religious should be protected from that targeting.

          I understand that you of the Left have no actual principles, and so now hate RFRA for the fact that it’s protecting Christians from YOU. But, seriously, how stupid do you have to be to think that all the rest of us are going to forget that RFRA exists, and why it exists?

      2. “Politics is religion, and we suffer the same evils under whatever group ascendant chooses to do.”

        That really is the problem here. The secular advocates of all powerful government will never, ever admit it, but in all relevant regards, their ideology IS a religion.

        And they think that, because it nominally doesn’t include a “god”, they get to make it the state religion, and teach it in the schools, and demand obeisance from everybody.

        Why do the advocates of powerful government hate religion so much? It’s a competitor.

    2. but that doesn’t violate anyone’s free exercise of their religion nor does it discriminate against someone on the basis of their religion.

      It does if you treat religious activities from other activities with a similar medical risk, regardless of what they may be.

      What happened here is that the fascist bureaucrats didn’t follow the science of infection control and instead arbitrarily and capriciously decreed what would be permitted and what would be prohibited. Had they instead done what you suggest, i.e. shut down EVERYTHING, then the religious schools (and churches) wouldn’t have won. But that’s a different set of facts…

      1. The complaint here, I guess, is that for once a court actually applied “rational basis” honestly, and found a law wasn’t rational.

    3. Poor Tom. He worships at the Church of the Divine Disinterested Experts, and just can’t handle it when the “experts” dishonesty, stupidity, or just general all around incompetence isn’t deferred to with the religious devotion that he demands.

      The proper political ruling here is: the people imposing these rules are idiots. If they’re not elected officials they should be summarily fired. If they’re elected they should be voted out of office

      But the WISC isn’t a political body, and won’t be until the Left get one more dishonest scum bag on it.

      So, instead, they ruled that “whatever you can do to the secular, the religious are protected by a requirement that what you do to them must actually be rational and correct. Since your rules here are utter trash, you can’t force them on the religious.”

      I note you don’t try to defend the order against the religious schools as having any scientific or public health legitimacy.

      You’re just angry that your bullies were stopped

  5. This activity from Prof. Volokh was good to see.

    After the Trump administration was revealed to have subpoenaed journalists’ records and arranged gag orders with respect to publications perceived to be political adversaries of conservatives, and this ‘first amendment champion’ blog was silent, I figured Prof. Volokh might be vacationing.

    After the Trump administration was revealed to have spied on elected officials (and their staff members, and families), and this “often libertarian” blog was silent, I was concerned that Prof. Volokh might be ill or injured.

    Turns out it was nothing more than a chronic case of right-wing hypocrisy. It is good to see that you are not hurting (beyond the usual affliction), professor.

    1. Ironic. Teeny investigations do not compare to massive unrelenting lawfare by Democrats against the greatest President since Washington. Compare to 2 fake, ridiculous impeachments, afake Mueller investigation, hundrerds of fake lawsuits.

    2. Kirkland (and the Democrats) might want to be damn careful on jumping to conclusions about these subpoenas because it’s entirely possible that Barr *didn’t* know about them — and it’s entirely possible that they were done to *harm* Trump.

      Fact: We know that neither the DOJ nor the FBI, as institutions, particularly liked Trump, that they were willing to violate rules in pursuit of Trump, and — most importantly — the latter offended people who believed in the rules. (Remember how Trump was told about the illegal wiretaps in Trump Tower?)

      It’s entirely possible that this was an investigation attempting to determine who was leaking *to* Trump….

      It’s also possible that this was a legitimate national security investigation — if Pelosi could have a CCP spy on her payroll, perhaps other Dems do as well…

      1. It’s also interesting that Trump didn’t simply release all the Russiagate stuff — which he wouldn’t do if there were a legitimate national security issue in the middle of it.

        This could include anything from having to protect our assets in Russia, or our systems & methods (and abilities), to something specific involving a government (Putin) which is malicious to ours.

        Adam Schiff is on the Intelligence Committee — anyone remember Patrick “Leaky Lehay? See: https://www.heritage.org/commentary/leaky-leahy-seeks-sensitive-info-again

        1. Or James Wolfe who was on the Senate Intelligence Committee and arrested for leaking classified stuff to his girlfriend?
          https://www.justice.gov/usao-dc/pr/former-us-senate-employee-indicted-false-statements-charges

        2. I figured he didn’t release it, because the intelligence services were defying his orders to declassify stuff, and he wasn’t prepared to deal with an open revolt by them, given how much blackmail information they had on basically everybody in Washington.

          I think we’ve essentially reached the point where the intelligence branches have so much dirt on everybody that they’re really the ones pulling the strings. I’d hoped Trump would be willing to play Samson in the Temple, and bring the whole rotten structure down, but he wasn’t.

      2. Fact: We know that neither the DOJ nor the FBI, as institutions, particularly liked Trump, that they were willing to violate rules in pursuit of Trump, and — most importantly — the latter offended people who believed in the rules. (Remember how Trump was told about the illegal wiretaps in Trump Tower?)

        You mean by the voices in his head? There were no “wiretaps” — legal or “illegal” — in Trump Tower.

  6. Another jewish game that flows from Lord Fauci’s ‘do as you are told’ form of public health, absence basis in science or common sense. More troubling is that public school kids are subjected to Fauci’s silliness while only those who profess a faith and go to such a school are exempt….no logic in that. Just jewish mysticism played out on a sleeping goy. In the end, the governmental source of covid comes out, the players exposed and the jews skewered.

  7. BTW, doesn’t Wisconsin follow the doctrine of Constitutional avoidance? They ruled that the local health officials lacked authority to close the schools under the Wisconsin statute. They could and should have just stopped there, without getting into Constitutional issues.

    1. Read footnote 18 of the majority opinion. Then respond to it, rather than pretending that the majority did not address this exact question

    2. For that matter, read paragraph 59 of Hagedorn’s concurrence

  8. “Our cobloggers Will Baude and Stephen Sachs’ Harvard Law Review article, The Law of Interpretation, is cited three times by the dissent”

    Did the dissent illegitimately quote the article, or are Baude and Sachs as dishonest and stupid as the dissenters?

  9. For the intellectually challenged, who can’t understand how a “generally applicable law” can be held to be anti-religious, a scenario:

    1: The public schools, which operate at the beck and call of the Union that only cares about the “teachers”, announce that they’re only doing “virtual instruction”

    2: The religious schools, which actually care about the parents and students, announce they’re going to have in person education

    3: The public health officials, being Democrats, are in the pockets of the Union, and announce a rule forcing “all schools” to close down their in-person education, and only do “virtual teaching”

    As the public schools were going to do this anyway, the rule has no effect on them. The main people it has an effect on are teh religious schools

    So only a moron, or a Democrat, could possibly believe this “generally applicable” order was not in fact directly targeted at the religious schools

    Any questions?

  10. From footnote 21:

    >>>
    Taking a position diametrically opposed to Heinrich’s and belied by the record, Justice Dallet says that “[i]f in-person education on every subject, religious or not, is truly religious practice, as some petitioners here claim, nothing in the Order burdens that practice” since “Section 8 of the Order explicitly exempts religious practices from its in-person gathering restrictions[.]” Dissent, ¶88. The parties’ stipulated facts “torpedo” Justice Dallet’s assertion. The parties——including Heinrich——stipulated that “Emergency Order #9, itself, does not allow for the opening of in- person education for grades 3-12 under any conditions except for a new order superseding and replacing Emergency Order #9, and except for qualifying students with disabilities or an individualized education program.” Joint Stipulation of Facts #147 (emphasis added). Had the petitioner schools tested Justice Dallet’s theory, they would have exposed themselves to “a penalty of not more than one thousand dollars $1,000” for “[e]ach and every day of violation.” Joint Stipulation of Facts #170.
    <<<

    How stupid do you have to be, to issue a "defense" of respondent's order that is undermined by the facts stipulated to by the respondent? How stupid did the other two "justices" who voted for that opinion have to be, that none of them caught it?

    And that none of them did anything about it AFTER they got the majority's evisceration of their imbecility?

  11. So, reading the decision:

    1: Both sides stipulated that forcing schools to go online qualifies a “closing schools”

    2: The majority makes a clear and cogent case that local public health officials do not HAVE the power to “close schools”. (The dissent, OTOH, believes that grants of power to do what is “reasonable and necessary” are the same as grants to do “anything and everything”.)

    3: This, i think, is the kill shot for the minority’s whines. One the minority made no attempt to respond to (so far as I could see):

    Statutory references to a school closure by a local health officer may stem from Wis. Stat. § 250.042(1), which says: “If the governor declares a state of emergency related to public health under s. 323.10 and designates the department [of health services] as the lead state agency to respond to that emergency, the department shall act as the public health authority during the state of emergency . . . . During the period of the state of emergency, ***the secretary may designate a local health department as an agent of the department and confer upon the local health department, acting under that agency, the powers and duties of the public health authority.”***

    So, when those events occur, THEN a local health official could shut down public schools under WI law.

    But that grant did not occur in this case.

    So, the legal references to “when the local health board / official orders schools closed” in no way imply that the local health officials have that power themselves

    State law clearly grants the State Dept of Health the power to close down schools. Both sides admit that the State Legislature was going to explicitly give local boards that power, then pulled it from the law.

    It takes motivated reasoning of the highest order to pretend that the order was ever legal

  12. Wow this thread is awesome and I can’t believe how intelligent these comments are. I’m so used to FB or social media with morons who can’t think past their own nose that I’m shocked to see so many comments of well thought out arguments.

    As a business owner and father of 3 kids in elementary school, I could not be more infuriated at how this public school mess was handled. I had several altercations with our school principle about this and thought I was going to get my kids expelled a few times.

    I’m happy to see so many level-headed people see the same power grab from the Left that I saw this whole time. And it gives me hope that something might change back towards the good.

    In the meantime, I’ll just keep running my small dumpster business https://oshkoshdumpsterrentals.com and look forward to the rise of quality people standing up for the good in the world!

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