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Old 05-22-2020, 11:21 PM
Mr Downtown is offline
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A constitutional question: Let my people go . . . back to church


It's obvious that a president can't "override" state executive orders in order to reopen churches, mosques, and synagogues. (The Constitution simply doesn't give such "police power" to the federal government.) But it got me thinking about state governors giving preference to churches and letting them open before, say, folk music coffeehouses. It's hard for me to see how that could pass muster with the First Amendment's Establishment Clause, since the distinction is clearly the presence or absence of religious practice.

Yet it seems to me that many zoning ordinances do distinguish between buildings for religious assembly and other businesses where a similar number of persons might assemble in a group. Is it simply a matter of not having been challenged on Establishment Clause grounds, or is my analysis missing something?
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Old 05-22-2020, 11:54 PM
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But you also have the Free Exercise Clause where the government cannot shut down churches. I also don't see an Establishment Clause issue at all unless a government would say, for example, only Christian churches can open, but no Temples or Mosques.
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Old 05-23-2020, 12:12 AM
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Hasnt the federal govt called the national guard before to establish its will in state matters?
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Old 05-23-2020, 09:30 PM
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Originally Posted by Dale Sams View Post
Hasnt the federal govt called the national guard before to establish its will in state matters?
Notably, George Wallace issued an executive order to further school segregation in Alabama. President Kennedy had the feds intervene to enforce desegregation.


So long as restrictions are facially neutral they could impinge on freedom to gather for religious services. Neutrally applied fire codes are one such example where a government could limit the number of attendees in a building at a religious event.

But if a governor's executive order prevents all indoor religious services while permitting indoor commercial activity then it seems it is not a religiously neutral order.

Last edited by Iggy; 05-23-2020 at 09:31 PM.
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Old 05-23-2020, 12:55 AM
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Isn't Freedom of Religion (and less so freedom from religion) enshrined as the first article of the constitution. That said, does that over ride Federal and/or State powers of emergency such as a pandemic?

Being the son of a preacher man, IMHO since god is "everywhere" there is no Christian mandate that one must be in church to worship or to pray. That also holds true for Buddhism and Taoism. I'm not sure where Muslims, Wiccans, animists or others stand on this issue, but I'm guessing that they also don't have to be in a house of worship to worship. YMMV
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Old 05-23-2020, 01:23 AM
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Isn't Freedom of Religion (and less so freedom from religion) enshrined as the first article of the constitution. That said, does that over ride Federal and/or State powers of emergency such as a pandemic?

Being the son of a preacher man, IMHO since god is "everywhere" there is no Christian mandate that one must be in church to worship or to pray. That also holds true for Buddhism and Taoism. I'm not sure where Muslims, Wiccans, animists or others stand on this issue, but I'm guessing that they also don't have to be in a house of worship to worship. YMMV
1) That is part of the debate. IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.

2) I'm not sure of the other religions, but many sects of Christianity have the "God is everywhere" mentality and for others the need to congregate is important. I think it would be a bad precedent for a court or the government to say, yes, we support the Third Presbylutheran Doctrine to be the true Word of Jesus Christ, therefore in person attendance is not necessary...also no fish on Fridays.
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Old 05-23-2020, 02:23 AM
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1) That is part of the debate. IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.
If a preacher ordered his ushers to block the exits of a church which has caught on fire, because the preacher says that God will take care of it, and people die, do you think he is immune from prosecution?
Since we have multiple instances of church services directly leading to illness and death, the analogy seems apt.
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Old 05-23-2020, 10:42 AM
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1) IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.
But it can if it is properly and equitably administered.

Just like "time, place, and manner" restrictions on freedom of expression are often ruled to be constitutional if they don't discriminate based on viewpoint, church services can be included in more general restrictions on in-person gatherings, as long as churches and other religious institutions are given the same opportunity as other types of gatherings to implement proper safety measures.

So, you can pass a law that makes it illegal to broadcast amplified sound after 11 p.m., but you have to make the restriction content-neutral. Similarly, you can pass an ordinance or issue an emergency order that prevents gatherings of over 50 people in enclosed spaces, but you can't allow restaurants to reopen while refusing the same permission to churches with similar capacities.

The general principle goes back to Employment Division v. Smith, which basically said that even religious people and organizations could be required to comply with "generally applicable" laws that are neutral with respect to religion. There's been more court decisions since Smith, and some states have also passed Religious Freedom Restoration Acts (RFRAs, pronounced colloquially as "rifras"), which aim to protect religion by requiring strict scrutiny for any law, even a generally applicable law, that burdens religious practice.

The Congressional Research Service put out a report (PDF) about a month ago detailing some of the legal questions raised by this issue. The report notes:
Quote:
Under Smith, to the extent that emergency orders prohibiting in-person gatherings are generally applicable to a variety of different gatherings and neutral with respect to religion, they could likely be applied to religious gatherings without having to satisfy strict scrutiny under the First Amendment. In at least one free exercise challenge in San Diego, the government argued that its order is permissible under Smith as a valid and neutral law of general applicability. Nonetheless, even if a law is generally applicable on its face, if there is evidence that a government is targeting certain religious groups for violating quarantine orders, or if a government is giving preferential treatment to secular gatherings, as compared to similarly situated religious gatherings, a court might review the government’s action under a heightened standard of scrutiny. Government actions may be particularly susceptible to legal challenge if they do not appear sufficiently tailored to address the particular emergency at hand.
The report gives examples of some laws that might or might not pass muster during the coronavirus lockdowns. How courts rule on these issues will depend on things like whether or not the state has a RFRA, how intrusive the law is, how narrowly tailored it is to achieve a compelling government interest, and whether it is neutral on its face and in its implementation, or whether it unduly burdens religious practice while allowing other gatherings.
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Old 05-23-2020, 01:19 PM
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1) That is part of the debate. IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.
Fred Korematsu would disagree with you.
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Old 05-23-2020, 02:26 PM
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1) That is part of the debate. IMHO, a state of emergency cannot override a core fundamental right in the Bill of Rights.
Do you think the state has any authority to mandate health and safety rules be followed by religious establishments? Can the fire inspector forbid churches from meeting in buildings that violate fire code? Or enforce rules on building occupancy limits? Can health inspectors condemn church buildings for being filled with black mold? Or would all these be overriding a core fundamental right in the Bill of Rights as well?
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Old 05-23-2020, 07:01 AM
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Isn't Freedom of Religion (and less so freedom from religion) enshrined as the first article of the constitution. That said, does that over ride Federal and/or State powers of emergency such as a pandemic?
People are still free to practice their faith as an individual, as families, and in small private gatherings, and the order is temporary. Nobody's freedom to practice their faith is being unreasonably burdened.

I don't expect right wing judges to see it that way, though, which is why I get the warm and fuzzies when I later find out that people who defy such orders - just because - end up coming down with COVID - serves them right. They're not just a threat to each other; they go out, they shop, they visit doctors, and they put everyone else in danger just because they feel entitled to practice in-your-face religion.
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Old 05-27-2020, 08:03 AM
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Originally Posted by China Guy View Post
Being the son of a preacher man, IMHO since god is "everywhere" there is no Christian mandate that one must be in church to worship or to pray. That also holds true for Buddhism and Taoism. I'm not sure where Muslims, Wiccans, animists or others stand on this issue, but I'm guessing that they also don't have to be in a house of worship to worship. YMMV
Dated a few guys and had run-ins with parents - when asked why I wasn't in church of a Sunday morning I casually mentioned that God is everywhere and I don't need a church to talk with him more than one parent yelled at me, variously called me a heathen, anti-christian, bad influence ... I was raised northern Baptist by a mother who had a minor in comparative theology from a *major* Baptist university. If she figured I had the idea of Christianity down by the time I was 12, I didn't need to be born again, she did it right the first time.
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Old 05-23-2020, 07:47 AM
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Supreme court ruled it was OK to put Japanese americans in camps during WW 2. They did not put Germans, Italians, etc, in camps.
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Old 05-23-2020, 09:37 AM
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Priest: Mr. President, we don't need to open churches to practice our faith.
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Old 05-23-2020, 09:49 AM
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I would love to go back to my church, but am afraid that the snakes would transmit infection from hand to hand.
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Old 05-23-2020, 03:36 PM
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But it got me thinking about state governors giving preference to churches and letting them open before, say, folk music coffeehouses.
A health expert could argue that, for this example, that 'folk music coffeehouses' are more likely to be vectors for disease spread than churches.
Smaller spaces, people sitting closer to the performers, audience eating/drinking while the performance is going on, waiters travelling between tables, etc.

But I doubt that any Governor was looking at these health reasons when making these orders. Most important reason was probably the difference in voting turnout between church goers and coffeehouse attendees.
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Old 05-23-2020, 11:55 PM
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Mods, I asked a General Question about neither Politics nor Elections. How did it end up here?

mhendo, that CRS memo is very useful; thanks.

Saint Cad, Korematsu's rationale doesn't rest on a general police power to meet an emergency—the federal government simply doesn't have such a power—but on the Constitution's Section 8 specific grant to Congress of the power to make war. The Court ruled that the power to make war meant the power to wage war effectively, and giving great deference to that could overcome the Fifth and Fourteenth Amendment issues.
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Old 05-24-2020, 08:00 AM
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An opinion came down in the Ninth Circuit Court of Appeals on Friday that addresses this issue. The case was South Bay United Pentecostal Church v. Newsom (PDF), in which a San Diego-area church was asking for a temporary restraining order against California's stay-at-home orders. The District Court denied the restraining order, and the Circuit Court upheld the District Courts decision, arguing:
Quote:
We conclude that appellants have not demonstrated a sufficient likelihood of
success on appeal. Where state action does not “infringe upon or restrict practices
because of their religious motivation” and does not “in a selective manner impose
burdens only on conduct motivated by religious belief,” it does not violate the First
Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often
fatal disease for which there presently is no known cure. In the words of Justice
Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little
practical wisdom, it will convert the constitutional Bill of Rights into a suicide
pact.”

p. 3
This was a three-judge panel, and the decision was 2-1. The opinion itself is only about two pages long; the other 18 pages are taken up by a dissent, written by Judge Collins. The judge disagrees with the majority's decision that the church would not be able to make its case. He notes that, in California's multi-stage re-opening plan, "religious services" are explicitly placed in Stage 3, along with activities like "movie theaters" and "personal and hospitality services."
Quote:
By explicitly and categorically assigning all in-person “religious services” to
a future Phase 3—without any express regard to the number of attendees, the size
of the space, or the safety protocols followed in such services8—the State’s
Reopening Plan undeniably “discriminate[s] on its face” against “religious
conduct.” Lukumi, 508 U.S. at 533. Although the State insists that it has not acted
out of antipathy towards religion, the “constitutional benchmark is ‘government
neutrality,’ not ‘government avoidance of bigotry.’” Roberts, 2020 WL 2316679,
at *4 (quoting Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1260 (10th Cir.
2008)). Because the Reopening Plan, on its face, is not neutral, it is subject to
strict scrutiny.
He goes on to argue that the law is not one of "general applicability" because it specifies very minutely who can do what, and when, with regard to re-opening and going out in public:
Quote:
Under California’s approach—in which an individual can leave the home
only for the enumerated purposes specified by the State—these categories of
authorized activities provide the operative rules that govern one’s conduct. While
the resulting highly reticulated patchwork of designated activities and
accompanying guidelines may make sense from a public health standpoint, there is
no denying that this amalgam of rules is the very antithesis of a “generally
applicable” prohibition. The State is continually making judgments, at the
margins, to decide what additional activities its residents may and may not engage
in, and thus far, “religious services” have not made the cut. I am at a loss to
understand how the State’s current maze of regulations can be deemed “generally
applicable.”
He also disagrees with the other two members of the court that the law satisfies strict scrutiny.
Quote:
The State’s undeniably compelling interest in public health “could be
achieved by narrower [regulations] that burdened religion to a far lesser degree.”
Lukumi, 508 U.S. at 546. As Plaintiffs have reiterated throughout these
proceedings, they will “comply[] with every single guideline that other businesses
are required to comply with.” In their papers in the district court, Plaintiffs
provided a list illustrating the range of measures they are ready and willing to
implement on reopening, including spacing out the Church’s seating, requiring
congregants to wear face coverings, prohibiting the congregation from singing, and
banning hugging, handshakes, and hand-holding. By regulating the specific
underlying risk-creating behaviors, rather than banning the particular religious
setting within which they occur, the State could achieve its ends in a manner that is
the “least restrictive way of dealing with the problem at hand.”
I think that perhaps his most convincing argument comes in the next paragraph, when he points out a rather odd inconsistency in the state's position:
Quote:
The State’s only response on the narrow-tailoring point is to insist that there
is too much risk that congregants will not follow these rules. But as the Sixth
Circuit recently explained in Roberts, the State’s position on this score illogically
assumes that the very same people who cannot be trusted to follow the rules at
their place of worship can be trusted to do so at their workplace: the State cannot
“assume the worst when people go to worship but assume the best when people go
to work or go about the rest of their daily lives in permitted social settings.”
Roberts, 2020 WL 2316679, at *3.
If anyone's interested, the dissenting judge is a Trump appointee, and the other two were appointed by Clinton and Obama.
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Old 05-24-2020, 09:27 AM
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California's reopening plan puts lower-risk workplaces (including office workplaces) in stage 2, with higher-risk workplaces in stage 3. My Goofle-fu isn't coming up with a reference to churches being placed in stage 3, but I'd think the state would have to have a compelling argument for doing so.
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Old 05-24-2020, 10:29 AM
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My Goofle-fu isn't coming up with a reference to churches being placed in stage 3, but I'd think the state would have to have a compelling argument for doing so.
This PDF document from the same website lists "In-person religious services (churches, weddings)" in Stage 3.
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Old 05-25-2020, 12:08 AM
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Thanks, mhendo. To my surprise, I find the dissent quite persuasive regarding what level of scrutiny is required.
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Old 05-25-2020, 10:46 AM
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What did happen is that the Governor of NY on Wednesday issued an executive order allowing religious gatherings and Memorial day celebrations of 10 people or fewer and got sued so fast that a new order was issued Friday allowing all gatherings of up to 10 people.
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Old 05-25-2020, 10:50 AM
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What did happen is that the Governor of NY on Wednesday issued an executive order allowing religious gatherings and Memorial day celebrations of 10 people or fewer and got sued so fast that a new order was issued Friday allowing all gatherings of up to 10 people.
Yeah, the original executive order was bullshit.

While religion should not be subject to discrimination, it also shouldn't get special treatment in cases like this, in my opinion. And adding the Memorial Day celebrations was even worse.

If a gathering of up to 10 people, with proper social distancing, is safe, then it's safe, no matter the purpose. And if it's not safe, then it should be banned for everyone, religious or not.
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Old 05-26-2020, 12:39 PM
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I've had a few informal discussions with other lawyers in the area. The consensus seems to be that the tickets issued for attending church or holding church probably are not enforceable on Free Exercise grounds. So far, at least in this part of the state, the few tickets that were issued were quietly squashed.

The difference between a church and a bowling alley, for this purpose, is that there is no express Constitutional right to bowl.
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Old 05-26-2020, 12:42 PM
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So far, at least in this part of the state, the few tickets that were issued were quietly squashed.
Squashing them wouldn't do much since they're already so small and flat.
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Old 05-26-2020, 11:24 PM
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Originally Posted by Oakminster View Post
The difference between a church and a bowling alley, for this purpose, is that there is no express Constitutional right to bowl.
But a lot of laymen forget the other part of the First Amendment: the Establishment Clause. Favoring churches over Ethical Humanist lectures or bookstore readings by authors or (maybe even) bowling alleys is expressly forbidden by the same Constitution.
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