I'm particularly interested to get @Mr. Deez's opinion on this, though of course you are all welcome to chime in. Last night, SCOTUS denied applications for emergency relief in two cases seeking to reopen religious services. The case against the City of Chicago was denied on purely procedural (and unanimous) grounds, but the case against the State of California was decided on substantive grounds. The vote was 5-4 in that one, with Roberts casting the deciding vote. As Roberts points out in his concurring opinion, the restrictions on religious services did not discriminate against religion. "Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time." A different set of rules applied to "dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods." The dissenting opinion says the laws can be upheld only if they are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” This type of analysis is called "strict scrutiny", and it applies only to laws that target religion, i.e. are not content neutral. The dissent pays brief lip-service to this idea by saying that "comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries." But they don't explain away the content-neutral basis for the law that Roberts pointed out. There is a strong argument to be made that the restrictions on religious services are a bad idea on policy grounds. But I'm wondering about your thoughts on whether the laws are unconstitutional.
I’m posting the remainder of my thoughts separately, because they raise a related but broader issue. As he typically does, Chief Justice Roberts looked at the California case from a constitutionally conservative perspective. And as they typically do, Justices Thomas and Alito looked at the case from a politically conservative (i.e. results-oriented) perspective. I was particularly disappointed to see Justices Gorsuch and Kavanaugh join with Justices Thomas and Alito. The jury is still out on the two newest justices, but so far I’ve found them to be truer to the Constitution than they were in this case. While I was writing this post, five new SCOTUS opinions were released. Two of them (one related to immigration, and one related to criminal appeals) were decided 7-2, with Justices Alito and Thomas dissenting. In both cases, the dissents were results-driven. I was happy to see that Justices Gorsuch and Kavanaugh joined Justice Roberts and the five liberals.
The 1st Amendment applies to religion and public assembly. I would think that alone would mean the government doesn't have the right to shut them down. Where in the Constitution does it give the government the right to shut down any private organization? And if it does give them the right, it's time to break up the party and start over again.
The relevant part of the First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Since the very beginning, the word "respecting" has been interpreted to restrict Congress from adopting laws that are based on religion -- called "content-based" regulations -- which are stricken down unless the regulation is a necessary means to a compelling governmental interest. In contrast, regulations that impact religious institutions but are based on factors other than religion -- called "content-neutral" regulations -- are upheld unless they bear no rational connection to a legitimate governmental interest. It's the same as with speech. The first amendment protects speech, but that doesn't mean all laws limiting speech are unconstitutional. Instead, the same multi-tiered analysis applies. The Federal government only has powers granted by the Constitution. The State governments have the power to do anything they want, unless prohibited by the Constitution. That is the very hallmark of federalism. I know you don't like it, but libertarianism isn't baked into the Constitution.
The 14th Amendment has been used to apply the Bill of Rights to the States as well. It does no good to have one level unable to restrict religion and speech, if another is able. "Content based" is just an excuse to infringe upon religious liberty. Free exercise of religion doesn't mean laws can restrict it if they restrict other organizations as well. If the law interferes with religion and assembly it really doesn't matter the purpose of the law, it still violates the 1st Amendment. The 1st Amendments also protects the right to assemble, which these laws infringe upon.
Assembly can be limited under the "time, place, or manner" restrictions as long as the content of speech isn't regulated as well.
I have been fascinated with SC and constitutional law classes under Dr Alan Sager back in the early 90's. Definitely thought this was an interesting ruling and like NJL have seen Chief Justice Roberts rule from a constitutional platform vs political stance. No surprises on Thomas and Alito. Good thread even though I don't share the opinion that the SCOTUS has an agenda to "deny rights".
So the living document guys are ruling based on a constitutional platform, but the guys ruling based on originalism are being political. Damn if that isn't some spin.
Of course the 1st amendment applies to States. I never said otherwise. The question is what the 1st Amendment prohibits, and what it does not. No. Both the “living breathing” crowd and the “originalism” crowd agree that 1st Amendment rights are subject to reasonable limits. I’m not aware of any SCOTUS Justice who has ever taken the absolutist approach you are suggesting. That’s a position that even Alito and Thomas wouldn’t take. They at least pay lip service to the actual law. Their mistake came in how they applied the law that you deny even exists.
NJ, I'll check these decisions out and comment, but I'm in a bit of a whirlwind getting our visa applications and paperwork for the UK move (now set to happen in August) in order. A lot of moving parts in that process and a lot of ducks to put in a row. Might take a day or two to read everything.
I admit I am treating this absolutely. My response is, first, isn't the language absolute, and, two, what constitutes reasonable? I could agree with a reasonable limit being that public buildings have open hours. But shutting down a place of worship or business altogether? That doesn't sound reasonable to me at all. Roberts is saying that the government has the right to shut down private organizations over health issues. Don't see this going well.
You are assuming that "freedom of speech" in the First Amendment means "freedom to say anything you want to say". That is not what "freedom of speech" has ever meant. Instead, "freedom of speech" was a set of legal rules that originated in the Magna Carta (1215) and was solidified in the English Bill of Rights (1689). When the First Amendment was adopted, the original intent was to prohibit Congress from abridging those pre-existing rights. Deciding what is "reasonable" is for the political branches of government to decide. So long as a law is content neutral and has a rational basis, judges should not step in. That is the very core of judicial conservatism.
Unacceptable, @Mr. Deez. I expect a report on my desk by COB tomorrow. Oh, and good luck with that visa thing.
I never brought up speech. All that means is shut up and do what you are told serf. It turns a citizens right to the government's prerogative.
True, my mistake. But the same point holds for all of the clauses in the First Amendment, including the free-exercise clause and the assembly clause. You read the language as being "absolute", but that position is is not supported by the text, much less the original intent.
I can tell that Monahorns and I probably lie on different sides of this debate but I think you bring up some good points. Enjoy the cerebral back and forth here between M and NJL vs the emotion based spewing I'm used to seeing in the West Mall.
First Amendment: NJ: When the text itself says "no law.. prohibiting the free exercise thereof, or abridging the freedom of... the right of the people peaceably to assemble" How does the text not support what the text actually says? How else am I to understand "no law prohibiting the free exercise" in regard to religion and "no law abridging the freedom to peaceably to assemble"? It either says what it says or it doesn't. If you define those phrases in a way that changes the meaning away from the normal definitions, then you just subvert the intended meaning.
You guys are having a great dialogue on Constitutional and legal grounds, and this is very important; but, I would like to hear a defense from a moral and ethical/integrity perspective now that the same "leaders" who are most adamant about social distancing and the restrictions on churches (while also condemning lockdown protests) are out promoting and encouraging mass George Floyd protests. I would argue that this is relevant to the discussion, as, while we do have law, it is man who must act honestly, consistently, and with integrity to uphold and promote it.
For me this is key, I don't see a lot of peaceably assembly right now. I see the opposite. This is where their constitutional rights end. It's like watching the final scene from Gangs of New York. I'd say our government has been more than soft on this and needs to start putting people down.
OK, my visa paperwork is done, and I've got an appointment with the UK's visa contractor in Düsseldorf on Friday. Fun stuff. I read both opinions (which were remarkably brief). NJLonghorn is right. I don't see much of a case for religious discrimination. Justice Kavanaugh rattles off a mess of places that aren't closed and just glosses over the fact that they don't operate anything like a church does. If they were closing churches but letting concerts, lectures, and movies theaters stay open, then I'd probably agree with Kavanaugh, but it doesn't look like that's what they're doing. I also don't see a violation of free exercise. I see this as more of a time, place, and manner restriction. People can still attend virtually and can still pray, worship, read the Bible, tithe, and listen to sermons. Would I be OK with that on a permanent arrangement? No. But on a temporary basis for a major public health problem? Yes. I think the Court is right to be largely deferential in this kind of situation. NJ is also right that the 1st Amendment isn't absolute. That's why we can't put child porn on TV. The government can make restrictions for compelling reasons so long as the restrictions aren't overly broad. And of course, I reject the substantive due process doctrine altogether (unlike most lawyers and unlike NJLonghorn), so I reject the the incorporation doctrines (selective and total) and wouldn't apply the First Amendment to the states or go through any of these considerations anyway. I'd follow Barron v. Baltimore and toss the case out.
Yes, if you follow the logic of totalitarian judges who previously made rulings, you will end up restricting worship and assembling. But that doesn't address the language in the Amendment. Deez and others like him give the government the excuse to do whatever they want. All they have to do is attach some lame excuse to their oppressive order. No citizens don't get to decide for themselves, freely assemble, or assess the risk on their own. Instead we get the comparison of child porn to worshiping in a church physically. We have viral outbreaks every year. It is "reasonable" in the mind of Statists to treat healthy people like they are sick, peaceful people as if they are violent, and mothers in parks like they are child abusers.
If you're concerned with the language, it says "Congress shall make no law . . ." These rules are not acts of Congress. They are acts of states and their political subdivisions. And of course, the 14th Amendment is completely silent on the matter as it is on abortion, sodomy, and a whole host of other things. No, not a "lame excuse" but a compelling excuse. And don't be a throbbing tool. I didn't compare worshipping in church with child porn. You know better than to make a dishonest characterization like that. I brought up child porn, because under YOUR absolutist approach to the First Amendment, people could put child porn on TV. That's not a comparison.
Word choice isn’t my strong suit, so maybe I wouldn’t have said “throbbing tool” in the same paragraph as “worshipping in church with porn” and “porn on TV”, but I am a traditional conservative radical liberal.
Good points. But you are forgetting 2 huge factors. One, the Bill of Rights does not confer rights only recognizes them. These are rights that all people have against any form of government edict. So it doesn't matter if it is a law from Congress, or an EO, or a band of thugs showing up at your door. Two follows from. Since it is a pre-existing God-given Natural Right to worship God, no one has a right to tell you how to worship. Not a President. Not a governor. Not a mayor. Not an HOA. I brought of the 14th Amendment because it is the conventional belief that it confers the Bill of Rights to the States, not because I believe it does. It doesn't need to. We have those rights regardless. You brought up child pornography as a reason not to give people the right to worship Jesus as they see fit. You used the same logic for both. That is on you. Only you have the throbbing tool at this point. I am only talking about worshipping, peaceably assembling, and businesses determining their own fate. If you think allowing those things also allows child porn, then that is on your lack of imagination or thinking through of other ways to enforce that without violating other moral, ethical behavior. So don't talk to me about honesty and don't talk to me about being an absolutist. You are adding things into your criticism of me that I never stated and would never agree with. I am absolute on the freedom of churches and businesses to navigate health issues on their own. I am absolute on people doing the same in public parks. But I never said everything should be permissable. Let's focus on letting Americans be freemen again and not serfs. Because that is what you are advocating. Treating healthy people as sick people. Treating people who want to go to work to provide for themselves as outlaws. Treating mothers in a park with their children as child abusers. Treating people standing 5 feet away instead of 6 feet away from people as aggressors. If that is reasonable to you... Any excuse to do that is lame. It is also fascistic, totalitarian, nanny-state, dehumanizing, collectivist, elitist, arbitrary...
Perhaps, but two problems. First, the Constitution is the legal document that gives the judiciary power to make a ruling. Subjective opinions about inherent rights do not. Second, states have rights too, and without a specific limitation on their power, the federal courts lack the jurisdiction and therefore the legitimacy to strike down their actions. No, but nice diversion. I bright it up to illustrate the absurdity of your position. So you're absolute when it's a right you like and in a scenario that benefits you.
