Supreme Court upholds California's Covid-19 Restrictions

[puzzlegal]

@UltraVires

It is not contradictory at all. There are limits at the periphery of Constitutional rights, but not at the core of them…

So, if I am understanding you, you are saying that assembling in a group for group prayer is THE core of religious freedom, and therefore shouldn’t be abrogated.

But, there is nothing in these laws that prevent you from doing that. You can meet in a small group at a church, or in a large group outdoors, or in a group of any size on-line.

(And I’m not convinced that “attend church in person” IS the core of religious practice. But even granting that, I claim that it has not been prevented. It has just been limited to what the state considers physically safe parameters, just like fire codes limit how many people can crows into a space. They’ve just cut those numbers down for a while.)

@UltraVires

Where do you see a right to have kiddy porn in the Constitution that is being suspended?

Again, I don’t know what this fallacy is called that keeps being argued. It goes something like because I cannot do something extreme then it follows that I cannot do something basic. Because I cannot stand in your living room with a bullhorn shouting “Vote Trump” that means that you can make it illegal for me to tell my friend to vote for Trump.

It’s called freedom of expression. And “kiddie porn” is not some weird extreme expression. The bullhorn in my living room is. Most producers of kiddie porn only intend to share it with people who want it, and they typically share it in discrete ways. We outlaw it despite it being such an ordinary form of expression because children were injured MAKING it, and various lawmakers have believed that the secondary market for kiddie porn encourages people to hurt children to make more. And perhaps viewing it even encourages the viewers to go out and molest children.

I would say that if we could magically prevent those not-direct-consequences from happening, it should be unconstitutional to interfere with the sharing of already-extant kiddie porn. Just as if we could medically protect people from covid without these sorts of restrictions, then these restrictions should be unconstitutional.

[squeegee]

@UltraVirus

Where do you see a right to have kiddy porn in the Constitution that is being suspended?

Where do you see a right to travel in the constitution*? Clearly there isn’t one, so restricting anyone from going anywhere at all, even to church, is constitutional.

*Yup there are unenumerated rights in the Constitution. Textualists should just admit that and go away.

[Broomstick]

@UltraVires

You are pointing out limits on rights at the edges.

Due to pandemic the whole damn world is an “edge case” right now.

@UltraVires

And likewise, you can pass laws against virgin sacrifice and that does impinge on some far out religions, but it doesn’t follow that you can therefore ban in person church services.

You can ban any practice that endangers others.

Here’s the thing: while I find snake-handling and strychnine drinking in the name of religion stupid and abhorrent I will defend the right of such believers to do exactly those stupid and abhorrent things because they are NOT endangering anyone else. They aren’t asking anyone outside their group to hold rattlesnakes in the name of Jesus, and they aren’t passing strychnine-lemonade to random strangers.

If they were throwing snakes on people and sneaking poison into their drinks, however, I would happily see them incarcerated and their stupidity banned.

If your congregation can figure out a way that ONLY they would be put at risk and no one outside their church, fine - but absent that, you’re endangering other people. And that is wrong and not defensible and not covered by anything in the constitution, the Bill of Rights, or any other amendment or law. And it’s not just me saying it, it’s a majority on the Supreme Court of the United States.

@UltraVires

Likewise, the freedom to attend church, even in a pandemic, has been given to us and should be unassailable by current politicians. Otherwise they are “no constitutional guarantee at all” if the government can decide that it is simply too dangerous to allow it now.

Wrong.

You have no right to endanger other people with your actions.

This has been subjected to legal review by the highest court in the land. The majority of whom have decided you are wrong.

[Hamlet]

@UltraVires

It is not contradictory at all. There are limits at the periphery of Constitutional rights, but not at the core of them.

This is just word jumble that shows an abysmal understanding of the history of the Constitution, the 200+ years of Constitutional history, and … well, reality itself.

@UltraVires

Just like Heller. We can argue about assault weapons or concealed carry or guns in schools, but when you are at the core of the right (in Heller handguns in the home, here church attendance) we don’t balance interests. That decision has already been made.

Even accepting Scalia’s viewpoint as true and accepting your misunderstanding of the precedential value of Heller for 1st Amendment analysis, you still fail in trying to make “church attendance at more than 25% capacity of the building it takes place in” is a “core” part of a Constitutional right.

Again, you seem to think that, because of some dicta in Heller, now, suddenly, “core” rights (whatever those are, and boy, you are certainly flexible in their definition) cannot be infringed upon in any way, shape, or form. That’s not how the Constitution works, nor how it has been interpreted to work for centuries.

@UltraVires

You cannot just decide that jury trials release too many guilty defendants and apply some balancing test (the governments interest in locking up guilty people versus a defendant’s right to a jury trial) and then come down on the side of the government. We already decided you get a jury trial just like we already decided that you have the right to go to church.

Yet the right to a jury trial is also limited. Juveniles don’t get it (McKeiver). Some misdemeanors, traffic laws, and other petty crimes don’t get it (Baldwin). You don’t have a right to have the jury sentence you.

While I applaud your creation of a new SuperRights ™ that cannot be infringed upon at all, that’s not how the Constitution and caselaw works. Especially when the SuperRight you are claiming exists has never been recognized before. The right to attend church in a building with more than 25% capacity people in it can be infringed upon to save lives in a pandemic.

[Hamlet]

Apologies UltraVires, my last post was maybe a bit too snarky. True, but too snarky. I’m trying to be a better poster.

I think I understand what you’re trying to say: that there is some point in any given Constitutional right, past which the government cannot infringe. Some “core” definition of the right that should be protected against any governmental infringement. For example, I think the Constitution clearly protects the right to my free exercise of religion, so governmental brainwashing to make me give up my faith would clearly be unconstitutional. That is too for into the "core"ness of the right.

The real issue we seem to have is defining that core right. In this particular case, you take the "core"ness of the right to free exercise and, without explanation, caselaw, or really any support at all, decide that that core includes the right to attend church in a building occupied to more than 25% capacity. That’s simply not how the Constitution, or Constitutional interpretation works. And, while I believe the right to church attendance is protected by the Constitution and a complete ban on it would very likely be unconstitutional, that right is not unlimited. And the limits placed upon it by the California Covid-19 restrictions are reasonable and constitutional.

[Broomstick]

@UltraVires

But that goes both ways. We all live in a society. So as much as you would like everyone hermetically sealed in a bubble, you have to understand that people go out in public. What you are asking for is complete control over everyone so that you feel safe.

You are incorrect. It is not a binary choice between “hermetically sealed bubble” and “wide open”. There’s a middle ground, and it’s valid to debate where the line is between safety and the economy but it is NOT valid to distort the viewpoint of those who disagree with you.

@UltraVires

An it is extra dubious when we are talking about something with a 1% mortality rate.

You are factually incorrect. At this point at best the fatality rate is between 3% and 4%, with some areas hitting 10% or even more.

When come back bring facts.

@UltraVires

What we are talking about is a law that keeps you (the general you) from exercising your Constitutional right to free exercise of religion because I (the general I) fear that you might contract the virus, and that we might cross paths, and that you might infect me and that I might be that 1 in 100 who die. Those are a lot of mights even for interest balancing. To hear some of you guys talk, it would be like you would fall over dead from driving past a church.

The current restrictions have not prevented me from practicing my religion.

You wildly underestimate the risks involved.

You had your day in court. You lost. Deal with it.

[mhendo]

@Broomstick

You can ban any practice that endangers others.

But this isn’t quite true either, is it?

I think you could make an argument that, no matter how careful you are, driving a car puts you and other road users, and pedestrians, in some danger. About 35,000 people die every year on America’s roads. And yet I don’t think that anyone would argue that it’s reasonable or lawful for governments to ban driving altogether.

Similarly with COVID-19, allowing stores and such to open does, in fact, expose people to a greater level of risk than if they simply stay home. We need to weigh that risk when we make decisions about what types of businesses open, and what sort of strategies they should adopt. I think, for example, the decisions about re-opening should be based not just on the number of likely coronavirus infections, but also on the corresponding benefits in other areas of public health. The lockdowns have deprived people of income, prevented a whole range of “non-essential” medical care, and contributed to problems like domestic violence and psychological issues. These issues need to be considered in any discussion about regulating activities.

@Broomstick

You are factually incorrect. At this point at best the fatality rate is between 3% and 4%, with some areas hitting 10% or even more.

This simply isn’t true. You are mistaking the Case Fatality Rate (CFR) with the Infection Fatality Rate (IFR).

The Case Fatality Rate is the number of deaths divided by the number of confirmed (preferably by proper nucleic acid testing) cases. The Infection Fatality Rate is the number of deaths divided by the number of people who actually get infected, whether or not they get tested.

Because most countries lack sufficient testing capacity to test the whole population, and because somewhere around one-third of all people infected with coronavirus never show any symptoms and therefore probably don’t get tested, the CFR is almost certainly MUCH higher than the IFR. All of the numbers you get by looking at the maps of the virus (like the excellent Johns Hopkins map) are CFR, not IFR.

Because, in a massive pandemic like this, true Infection Fatality Rates can only be based on studies of available data, they tend to be estimates, or extrapolations from smaller, intensive studies of local or regional populations. Infection Fatality Rates for COVID-19 are currently estimated, depending on which study you read, at somewhere between 0.3% and 1.3%. Here’s a meta-analysis (PDF) that collects and examines the results from 13 different studies, and arrives at an IFR of “0.75% (0.49-1.01%) with significant heterogeneity (p<0.001).” What they mean by “significant heterogeneity” is that “It is likely that different places will experience different IFRs”

[Broomstick]

@mhendo

But this isn’t quite true either, is it?

Don’t discard the good in search of the perfect. I was trying to avoid posting a full dissertation.

[Chronos]

To clarify: Catholics are not, in fact, able to worship fully under the quarantine restrictions (or at least, were not: Around here, at least, the restriction was just lifted). The Pope did not say that online services could meet the full extent of worship. What the Pope said was that, under the current circumstances, it is acceptable to not worship fully.

[Voyager]

@UltraVires

We may have dominated for 17 centuries, but since the 1960s the Court has excluded us from public life and John Roberts has decided that a state can forbid congregation in church. Read the last part of that last sentence. That’s from a Justice appointed by a Republican president.

Excluded you, being Christians I assume, from public life? Doesn’t seem that way to me. What it did do was exclude people acting as part of government from favoring one (or any) religion over others. That meant, in the case of schools, not having minority children singled out or pressured to pray to gods not their own.
n case you doubt this happened my wife, whose father was an atheist never went to church. Until that is in 2nd or 3rd grade (before 1960) she was shamed by the public school - Christian - teacher because of this.
Your position is anti-Semitic, anti-Islam and anti-atheist - as well as anti-Christian sects not in the mainstream.
Just one more place where you are wrong.

[Little_Nemo]

@UltraVires

I know my stance is unpopular on this board, but it is not a reasonable restriction on religion when you eviscerate the core of the right. And it is a frightening concept for judges to declare what is and what is not an essential thing for religion.

While I don’t fully agree with your conclusion, I think you’ve raised a point that neither Roberts nor Kavanaugh properly addressed. Both the decision and the dissent simply compared the restrictions on church gatherings with restrictions placed on other public gatherings. Roberts essentially said gathering at a church is like gathering at a sporting event and California is applying the same rules to churches that it applies to sporting events. Kavanaugh essentially said that going to church is like going to a grocery store so the rules for churches should be like the rules for grocery stores.

I feel both of them missed the key point that churches and other places of religious worship have a constitutional right that secular places like sporting events and grocery stores do not.

The decision should have acknowledged that this restriction did interfere with the free exercise of religion and that’s an issue that doesn’t arise with other gatherings. But, in my opinion, the decision should have gone on to say that the constitutional protection of freedom of religion is not absolute just as other constitutional freedoms are not. The freedom of religion, for example, does not allow human sacrifices. The decision should have been that this was a case in which public health and safety justified a temporary infringement of the free exercise of religion. And the dissent could, of course, have followed the same line of reasoning but concluded that it is not.

[Little_Nemo]

@DrDeth

The **Pope **disagrees. he has said during the covid crisis to attend on line services, etc.

I hope somebody is pursuing this. We may finally get that long overdue ruling on whether the Pope is Catholic.

[Little_Nemo]

@UltraVires

A compelling interest is never, and I repeat never, a justification for denying the core of a guaranteed right.

Do you feel then that Scalia ruled incorrectly in Employment Division v. Smith? Because his decision in that case said the opposite.

[susan]

@Little_Nemo

I hope somebody is pursuing this. We may finally get that long overdue ruling on whether the Pope is Catholic.

Maybe someone else can track this. I’ve been shitting in the woods but won’t leave until I get toilet paper.

[JRDelirious]

@Little_Nemo

The decision should have acknowledged that this restriction did interfere with the free exercise of religion and that’s an issue that doesn’t arise with other gatherings. But, in my opinion, the decision should have gone on to say that the constitutional protection of freedom of religion is not absolute just as other constitutional freedoms are not. The freedom of religion, for example, does not allow human sacrifices. The decision should have been that this was a case in which public health and safety justified a temporary infringement of the free exercise of religion. And the dissent could, of course, have followed the same line of reasoning but concluded that it is not.

Hmm… you think they may have deliberately avoided going there?

[Max_S]

@UltraVires

Kennedy, Souter, Roberts, O’Connor. It shows that Dem Presidents can appoint solid liberals, but GOP Presidents cannot appoint solid conservatives. Trump is good so far on this. I hope he gets to appoint three more for this reason even if he is a blowhard asshole.

I know my stance is unpopular on this board, but it is not a reasonable restriction on religion when you eviscerate the core of the right. And it is a frightening concept for judges to declare what is and what is not an essential thing for religion.

Yes, if I can go to Lowes and pick out a new kitchen or buy a truckload of treated lumber for a new deck, but the state tells me I cannot attend church, they have made a deliberate choice that inhibits the free exercise of religion.

I too am baffled by your opinion. If there is a compelling government interest, for example a pandemic, the state (not the feds) get to trample on your individual rights. That’s part of the deal with police powers. As far as the federal government and Supreme Court are concerned, the only first amendment right to free exercise of religion you have when it comes to state actions is through incorporation. Your rights may be curtailed by the state government with due process of law (if the state meets strict scrutiny).

You can argue, as Kavanaugh attempted, that these restrictions did not pass scrutiny. Perhaps you mean to say that the people should not afford their state governments this power in the state constitutions. I do not see how you can argue, at least not without leaving the mainstream of U.S. Constitutional jurisprudence, that no state has the right to interfere with the exercise of religion.

~Max

[Max_S]

@Little_Nemo

I feel both of them missed the key point that churches and other places of religious worship have a constitutional right that secular places like sporting events and grocery stores do not.

The decision should have acknowledged that this restriction did interfere with the free exercise of religion and that’s an issue that doesn’t arise with other gatherings.

Didn’t it?
“Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.”
Now, they didn’t elucidate the history of the Free Exercise Clause nor the three prongs of the strict scrutiny test, but I think this is due to the timetable and circumstances of the pandemic. I think it is not disputed that a pandemic qualifies as a compelling state interest, neither that the order is the least restrictive means of protecting the populace from the virus. The only point of contention seems to be that whether the state has contradicted itself and its stated interest by allowing people to gather in some places but not churches.

~Max

[DesertDog]

@UltraVires

Kennedy, Souter, Roberts, O’Connor. It shows that Dem Presidents can appoint solid liberals, but GOP Presidents cannot appoint solid conservatives. Trump is good so far on this. I hope he gets to appoint three more for this reason even if he is a blowhard asshole.

So, UV, I am curious. What do you think about GOP president getting to appoint a justice because the Dem’s choice was sat upon for ten months.

Then-president Barack Obama, a Democrat, nominated Merrick Garland to succeed Scalia on March 16, 2016, but the Republican-controlled U.S. Senate did not vote on the nomination. Majority leader Mitch McConnell declared that as the presidential election cycle had already commenced, it made the appointment of the next justice a political issue to be decided by voters. The Senate Judiciary Committee refused to consider the Garland nomination, thus keeping the vacancy open through the end of Obama’s presidency on January 20, 2017.

I would call that stacking the deck.

Of course, if Justice Ginsburg should retire or die today, McConnell would also declare it was too late in the election cycle to confirm anyone Trump proposed, right?

[Superdude]

@DesertDog

So, UV, I am curious. What do you think about GOP president getting to appoint a justice because the Dem’s choice was sat upon for ten months.I would call that stacking the deck.

Of course, if Justice Ginsburg should retire or die today, McConnell would also declare it was too late in the election cycle to confirm anyone Trump proposed, right?

I’m sure you know this already, but he’d fill it.

[Grestarian]

@UltraVires

Likewise, the freedom to attend church, even in a pandemic, has been given to us and should be unassailable by current politicians. Otherwise they are “no constitutional guarantee at all” if the government can decide that it is simply too dangerous to allow it now.

[Bolding from me]

Whoa, what?

Even way back in 8th grade history – and on through the years afterward – my teachers and professors who discussed the First Ammendment of the US Constitution were very clear in emphasizing the right to subscribe to any religion we wish. This was in contrast to the practices of the Quakers and Puritans around that time; to the rift between the Catholic and Anglican church (about which every transplanted Brit was very thoroughly taught); to the expulsion of non-Christians and abuse of ‘heretics’ during the Spanish Inquisition*; to the bloody wars between the Protestants and Catholics in France, between the Heugenot/Calvinists and Catholics in Holland; [need I go on?]. These Western European battles and abuses with religion at the root were still pretty fresh in the minds of the founding fathers, most of whom were pretty well educated# in comparison to the people they were representing.

So when Jefferson was explaining that the amendment was meant to include the right NOT to worship as well as to subscribe to something extant, he was well aware of Deism, Atheism, Agnosticism, and a lot of other religious traditions and the point was that nobody should be forced or forbidden to follow any particular mythological traditions. Freedom to believe (or not) is a long way from freedom to attend. A prohibition against prohibiting services (or attendance) is a long way from prohibiting beleif (or lack thereof). The religious facet of Amendment #1 says nobody can force you to believe or attend any particular faith. It says nothing about making sure you can attend (or believe).
G!
*And it always amazes me then the Tea-Party types try to suggest they meant ‘any religion so long as it’s a Christian sect’ like the founding fathers were idiots. They were educated enough to have known about Hindu, Native American, Norse, Greeks, Roman, and other belief systems and very conspicuously did NOT exclude any belief systems when drafting that first Amendment.

@ Which, by the way, was still going on until well after the former Colonies ironed out their Constitution. It was a very real issue of the times for them.

Porthos: Why the devil are we bombing those Protestant rebels into oblivion anyway? Just because they want to sing their psalms in French while we sing them in Latin?

Aramis: Oh, Porthos, have you no education? That’s what religious wars are all about!

–Alexandre Dumas
The Three Musketeers