Scott Lloyd Posted June 20, 2020 Author Posted June 20, 2020 (edited) 1 hour ago, Calm said: If you had used it as support for going after systemic racism leading to imprisonment based false fearmongering reports and skin color/racial background. Not seeing an obvious tie-in to banning of religious practices though. USU’s illustration goes to how prone society is to throw civil liberties under the bus — be it free exercise of religion or something else — in a time of widespread fear and panic. I think it’s very clear. Edited June 20, 2020 by Scott Lloyd 2
Amulek Posted June 20, 2020 Posted June 20, 2020 22 hours ago, Calm said: Do you have a viable alternative response? Serious question. The viable alternative response is to not discriminate based on viewpoint. When the government doesn't just prevent people from gathering to protest but actually thanks them for doing so (see, e.g., here) while at the same time preventing people from gathering for religious reasons, then the government is engaged in unconstitutional viewpoint discrimination. The appropriate response then, would be to allow religious groups (and comparable groups) to gather without risk of government intervention in the same manner and with the same courtesy which was extended to protesters. 1
pogi Posted June 20, 2020 Posted June 20, 2020 (edited) 31 minutes ago, Amulek said: Only that's not how it works. It's still religious discrimination even if it just so happens to be the case that the government is discriminating against a bunch of other entities as well. How can you prove that discrimination is happening because they are religious, and for no other reason? Good luck with that one! If my boss gives unfair and preferential treatment to Jack because he is a buddy, you can’t claim sex discrimination because he is not a woman, and ethnic discrimination because he is not black, and religious discrimination because he is atheist. That’s not how it works. For the same reason, you probably won’t get far with a claim of religious discrimination because the restaurant industry has inside buddies in Washington state. You have to prove that religion is being discriminated against because they are religious. I highly doubt that. It just so happens that the governor of Washington, Jay Inslee, is Protestant. Ya, good luck proving religious discrimination by emergency executive order there! Edited June 20, 2020 by pogi 1
Anijen Posted June 20, 2020 Posted June 20, 2020 (edited) 1 hour ago, pogi said: How can you prove that discrimination is happening because they are religious, and for no other reason? Good luck with that one! Pogi, proving discrimination is actually easy these days and luck is not a requirement. What is a problem is the time it takes and by the time it gets to an appropriate appellate court often times the case will be dismissed because it has become moot. However, filing suit has a very low bar to cross basically you have to show presumption of discrimination. Filing is easy. Winning, is another matter. These days even with a conservative Court most majority opinions have been found with it least two of the conservative judges siding with the majority. Quote If my boss gives unfair and preferential treatment to Jack because he is a buddy, you can’t claim sex discrimination because he is not a woman, and ethnic discrimination because he is not black, and religious discrimination because he is atheist. That’s not how it works. In your example above lets just use your boss being an atheist (because the other two are not relevant in this thread). The employer is the federal government (to make it less complicated). All the requirements to show discriminatory intent is: (1) a claim for damage, (such as a violation of a fundamental right) Joe claims he was fired because he is religious. (2) produce evidence (even circumstantial evidence is allowed), this creates presumption. Here, that Boss's seemingly neutral policy, rule, or practice had a discriminatory effect on a protected class of people. That is it, you have a suit. It will be accepted by most of the state appellate courts, it will be accepted by SCOTUS if certiorari is granted. Quote You have to prove that religion is being discriminated against because they are religious. Not really. To get to court you only have to show a presumption of discrimination. This can be done with circumstantial evidence. Then both sides will present their arguments for and against. If the the employer wins, the employee can appeal to a higher appellate court (such as the State Supreme Court), or to the United States Supreme Court if the previous ruling was already done by the States Supreme Court Quote I highly doubt that. It just so happens that the governor of Washington, Jay Inslee, is Protestant. A religious discrimination suit could go forward and has nothing to do with the Governor's religion or lack of one. Quote Ya, good luck proving religious discrimination by emergency executive order there! Luck is not needed (but is always desired ). I have never heard of proving religious discrimination by emergency executive order. It doesn't take much to file a suit. Once the suit has been accepted, then only intent of discrimination needs to be proven in court. Moreover, even if you have the world's greatest lawyer, and you can produce all the evidence showing clear-cut discrimination, even then the panel of judges still can rull against (or for). Thanks. Oh, and I apologize for some of the feistiness. I endeavor to be more civil in my posting. Edited June 20, 2020 by Anijen
pogi Posted June 20, 2020 Posted June 20, 2020 12 minutes ago, Anijen said: Pogi, proving discrimination is actually easy these days and luck is not a requirement. What is a problem is the time it takes and by the time it gets to an appropriate appellate court often times the case will be dismissed because it has become moot. However, filing suit has a very low bar to cross basically you have to show presumption of discrimination. Filing is easy. Winning, is another matter. These days even with a conservative Court most majority opinions have been found with it least two of the conservative judges siding with the majority. In your example above lets just use your boss being an atheist (because the other two are not relevant in this thread). The employer is the federal government (to make it less complicated). All the requirements to show discriminatory intent is: (1) a claim for damage, (such as a violation of a fundamental right) Joe claims he was fired because he is religious. (2) produce evidence (even circumstantial evidence is allowed), this creates presumption. Here, that Boss's seemingly neutral policy, rule, or practice had a discriminatory effect on a protected class of people. That is it, you have a suit. It will be accepted by most of the state appellate courts, it will be accepted by SCOTUS if certiorari is granted. Not really. To get to court you only have to show a presumption of discrimination. This can be done with circumstantial evidence. Then both sides will present their arguments for and against. If the the employer wins, the employee can appeal to a higher appellate court (such as the State Supreme Court), or to the United States Supreme Court if the previous ruling was already done by the States Supreme Court A religious discrimination suit could go forward and has nothing to do with the Governor's religion or lack of one. Luck is not needed (but is always desired ). I have never heard of proving religious discrimination by emergency executive order. It doesn't take much to file a suit. Once the suit has been accepted, then only intent of discrimination needs to be proven in court. Moreover, even if you have the world's greatest lawyer, and you can produce all the evidence showing clear-cut discrimination, even then the panel of judges still can rull against (or for). Thanks. Oh, and I apologize for some of the feistiness. I endeavor to be more civil in my posting. Right, I agree that it is easy to file a suit. My point is about winning. I don't think there would be much of a chance. Quote Once the suit has been accepted, then only intent of discrimination needs to be proven in court. Exactly why I don't think anyone would have much of a chance in this case for all the reasons I mentioned.
pogi Posted June 20, 2020 Posted June 20, 2020 It appears a suit against Inslee has already happened. https://www.seattletimes.com/seattle-news/politics/gop-gubernatorial-candidate-joshua-freed-sues-inslee-over-coronavirus-ban-on-religious-gatherings/ Anijen, is this likely to be dismissed as moot as the ban has already ended? I would very much like to see this played out. 1
Anijen Posted June 20, 2020 Posted June 20, 2020 1 minute ago, pogi said: It appears a suit against Inslee has already happened. https://www.seattletimes.com/seattle-news/politics/gop-gubernatorial-candidate-joshua-freed-sues-inslee-over-coronavirus-ban-on-religious-gatherings/ Anijen, is this likely to be dismissed as moot as the ban has already ended? I would very much like to see this played out. Appellate courts will dismiss for lack of standing and mootness will qualify. If a court sees that no relief can be claimed because the damage is a far gone conclusion. For example; in Row v. Wade almost all suits previously were dismissed because by the time it takes to get to the appellate court (the Supreme Court even longer) the woman has had the baby and these cases were dismissed because the issue has passed (became moot, it is impossible to have an abortion once the baby is born, four years old, and going to preschool). So another case, decided before Row, I can't recall the name of it right now, the Court will allow certiorari even if the issue has become moot if it has a chance of recurring (e.g., a woman can get pregnant again and want an abortion) So, if there is a high degree of a recurrence of the issue then it probably will not be dismissed. I have not read your link so I do not know this issue if it is issue preclusion or claim preclusion (or both). If the plaintiff can show a probability of the damage recurring from the same issue (i.e., a future ban) then it will most likely not be dismissed. If not it will be dismissed due to lack of standing by mootness. 1
Amulek Posted June 21, 2020 Posted June 21, 2020 (edited) 5 hours ago, pogi said: How can you prove that discrimination is happening because they are religious, and for no other reason? Good luck with that one! Um...because the rules are literally different (and more onerous) for houses of worship than they are for other similar types of gatherings. In fact, the Department of Justice filed a statement of interest in a challenge to Washington's shutdown orders (here, citations omitted): Quote Here, Defendants discriminate against religious worshipers because they fail to treat religious gatherings the same as comparable nonreligious gatherings. Defendants permit people to gather at restaurants and taverns at 50% capacity with no numerical cap so long as social distancing and hygiene protocols are followed. Yet, Defendants limit gatherings at places of worship like Plaintiff to 25% of capacity with a hard cap of 50 people, regardless of adherence to social distancing and hygiene protocols. Defendants likewise limit outdoor worship to 100 people regardless of distancing, hygiene, and other precautionary measures. Yet, they permit protests without numerical limitation with only an unenforceable and unenforced suggestion by the Governor for “people to be safe for themselves and the people around them” by “wearing a mask and . . . distancing as much as you can.” The discriminatory treatment of religious gatherings, indoors and outdoors, triggers strict scrutiny review under the Supreme Court’s precedents, and the State has not met its burden to justify this discrimination under that standard. Plaintiff thus has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the United States Constitution. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap (with a hard cap at 50), including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. If a church is willing to abide by the State's rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene, then they should be able to operate under to the same occupancy rules which are being imposed on those comparable secular businesses. To do differently violates the Constitution. Quote It just so happens that the governor of Washington, Jay Inslee, is Protestant. Ya, good luck proving religious discrimination by emergency executive order there! Not sure what that has to do with the price of tea in China. A law can be discriminatory even if the people passing it have no animus toward the people who are being discriminated against. Edited June 21, 2020 by Amulek 2
Amulek Posted June 21, 2020 Posted June 21, 2020 2 hours ago, Anijen said: Appellate courts will dismiss for lack of standing and mootness will qualify. If a court sees that no relief can be claimed because the damage is a far gone conclusion. For example; in Row v. Wade almost all suits previously were dismissed because by the time it takes to get to the appellate court (the Supreme Court even longer) the woman has had the baby and these cases were dismissed because the issue has passed (became moot, it is impossible to have an abortion once the baby is born, four years old, and going to preschool). So another case, decided before Row, I can't recall the name of it right now, the Court will allow certiorari even if the issue has become moot if it has a chance of recurring (e.g., a woman can get pregnant again and want an abortion) Same thing happens with speech cases involving High School students. By the time the case works it's way up through the system, the students have graduated and are no longer enrolled, so the case is moot.
pogi Posted June 21, 2020 Posted June 21, 2020 (edited) 50 minutes ago, Amulek said: Um...because the rules are literally different (and more onerous) for houses of worship than they are for other similar types of gatherings. If true, that seems discriminatory towards non-religious gatherings. What happened to “equal treatment”? Either way. That doesn’t answer my question. 50 minutes ago, Amulek said: Not sure what that has to do with the price of tea in China. If I understand Anijen correctly, “intent of discrimination” would have to be proven. Seems far fetched to prove intent to discriminate against religion when the dude is religious. What religious person would have that intent? Edited June 21, 2020 by pogi
Amulek Posted June 21, 2020 Posted June 21, 2020 39 minutes ago, pogi said: If true, that seems discriminatory towards non-religious gatherings. What happened to “equal treatment”? Huh? Religious gatherings are subjected to a 25% occupancy cap, with a hard limit of 50 people for indoor gatherings. Non-religious gatherings are subjected to a 50% occupancy cap, with no hard limit on the number of people allowed for indoor gatherings. I think you must have misread something if you believe that such an arrangement is discriminatory towards non-religious gatherings. Quote Either way. That doesn’t answer my question. Which question? Quote If I understand Anijen correctly, “intent of discrimination” would have to be proven. Seems far fetched to prove intent to discriminate against religion when the dude is religious. What religious person would have that intent? I don't think you quite understand how it works. If a black governor were to enact an emergency order during a time of crisis which allowed whites to withdraw $1,000 a day from their bank but only allowed blacks, hispanics, and asians to withdraw $500 a day, would you say that it isn't a discriminatory law - you know, because the governor is black. No, to determine whether or not a law impermissibly targets religious believers you start by looking at the text and operation of the challenged law. The text of the order explicitly treats religious groups differently from other groups. One would be extremely hard-pressed to try and justify that such treatment amounts to equal protection under the law. 1
pogi Posted June 21, 2020 Posted June 21, 2020 (edited) 13 hours ago, Amulek said: I think you must have misread something if you believe that such an arrangement is discriminatory towards non-religious gatherings. I did misread something. It seems to be happening a lot lately. The combination of stress, crazy work hours, and lack of sleep is getting to me. I should probably stop posting for a while. 13 hours ago, Amulek said: Which question? Again, this was related to the misreading. We are speaking past each other and it is probably my fault. My point is that you can't prove religious discrimination simply because the rules are different - and that is exactly what you are trying to do. You would have to prove that the rules are different and more onerous simply because they are religious. Maybe they viewed singing and other church activities as more high risk activities, and that is why the rules are different. That is not religious discrimination, that is risk management and discrimination based on risk assessment. There could be a million different reasons and I am quite confident that a religious governor is not discriminating against religion simply because they are religious organizations. It might be discrimination, but not necessarily religious discrimination. Not all discrimination is illegal. 13 hours ago, Amulek said: I don't think you quite understand how it works. If a black governor were to enact an emergency order during a time of crisis which allowed whites to withdraw $1,000 a day from their bank but only allowed blacks, hispanics, and asians to withdraw $500 a day, would you say that it isn't a discriminatory law - you know, because the governor is black. No, to determine whether or not a law impermissibly targets religious believers you start by looking at the text and operation of the challenged law. The text of the order explicitly treats religious groups differently from other groups. One would be extremely hard-pressed to try and justify that such treatment amounts to equal protection under the law. I think I do understand. You have to prove that there is discrimination because of religion or religious belief. Discrimination because of risk assessmnet, on the other hand, is not religious discrimination. That is what I have been trying to communicate. To answer your question, it would depend on why the black governor in your example is discriminating. I don't think it would be that difficult to justify discrimination based on assessment of risk: https://www.infectioncontroltoday.com/covid-19/churches-could-be-deadliest-places-covid-19-pandemic There is singing, there is more socializing with larger groups at church, more intimate interactions with hand-shacking, hugging, kissing, blessing, dancing and heavy breathing, shared communion/sacrament, etc. etc. With restaurants, people gather in smaller groups, don't interact with other groups of people at the restaurant, I don't see everyone in restaurants singing and dancing together. Is it really that hard to demonstrate other potential reasons to discriminate other than because they are religious? I don't think you, or anyone else here could prove religious discrimination. You are all making assumptions of intent. Edited June 21, 2020 by pogi 1
Scott Lloyd Posted June 23, 2020 Author Posted June 23, 2020 (edited) FYI, here’s a good editorial In today’s Deseret News that pertains to this thread topic and cites Elder Bednar’s talk: https://www.deseret.com/opinion/2020/6/23/21299586/us-religious-freedom-pandemic-covid-19-elder-bednar-lds-moromon From the piece: The current pandemic, although unique to the current generation of Americans, is something the nation is bound to experience again some time. Congress ought to review how governments reacted in light of constitutionally guaranteed rights, then craft legislation ensuring that those rights, and especially the right to worship and freely exercise religious beliefs, are given the highest priority in the future. Never again should the right to worship be swiftly cast aside as nonessential. Edited June 23, 2020 by Scott Lloyd 1
pogi Posted June 23, 2020 Posted June 23, 2020 (edited) 59 minutes ago, Scott Lloyd said: FYI, here’s a good editorial In today’s Deseret News that pertains to this thread topic and cites Elder Bednar’s talk: https://www.deseret.com/opinion/2020/6/23/21299586/us-religious-freedom-pandemic-covid-19-elder-bednar-lds-moromon From the piece: The current pandemic, although unique to the current generation of Americans, is something the nation is bound to experience again some time. Congress ought to review how governments reacted in light of constitutionally guaranteed rights, then craft legislation ensuring that those rights, and especially the right to worship and freely exercise religious beliefs, are given the highest priority in the future. Never again should the right to worship be swiftly cast aside as nonessential. Again with the "highest priority" above all other rights nonsense? If religions feels like the government cannot constitutionally justify the restrictive measures taken, then argue so in court. Quote States—and their cities and counties by extension—possess what has long been known as a “police power” to govern for the health, welfare and safety of their citizens. This broad authority, which can be traced to English common law and is reserved to the states by the 10th Amendment, is far from radical; it justifies why states can regulate at all. The police power of the states has been invoked on multiple occasions by the Supreme Court, often in contrast to the limited powers of the federal government—for example, in Chief Justice John Roberts’ opinion in the 2012 Obamacare case. This power also has been recognized in the context of public health for decades. In a 1905 Supreme Court case that upheld mandatory smallpox vaccinations, the court observed that “upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”... But the very existence of this framework—the balance between the need to protect the public and individual rights—assumes that there will be times when there are truly compelling emergencies justifying severe measures. A global pandemic that spreads even among those who are asymptomatic and could exceed the capacity of the American health care system would appear to be just such a compelling situation. When prominent voices tell the public that these drastic measures are somehow inherently unlawful or obviously unconstitutional, they detract from the social solidarity we need right now. People who are misled about what the government may do, and confused about its established powers, might not take heed of the necessary measures to protect their own health and that of their communities. At some point in the future, we could see a coronavirus response that has gone on too long or is too broad to justify its burdens. Or we might see instances of people who were denied civil liberties without real justification. Even now, you might feel that these measures are too little, too late, or that they are drastic, and burdensome. But if we are facing a window of opportunity that is rapidly closing, to say that the states cannot try to use their most basic authority to save lives is not only wrong—it might be deadly. https://www.politico.com/news/magazine/2020/03/18/states-police-power-coronavirus-135826 Edited June 23, 2020 by pogi
pogi Posted June 23, 2020 Posted June 23, 2020 Quote The last rites, administered by a Catholic priest, were considered nonessential regardless of the precautions taken. It appears that deseret news is continuing to push this story. Have they vetted this story? Shouldn't they have the obligation to vet it? 1
bsjkki Posted June 23, 2020 Posted June 23, 2020 5 minutes ago, pogi said: It appears that deseret news is continuing to push this story. Have they vetted this story? Shouldn't they have the obligation to vet it? Local news does not vet AP stories. Is it from a wire service?
Scott Lloyd Posted June 24, 2020 Author Posted June 24, 2020 43 minutes ago, pogi said: Again with the "highest priority" above all other rights nonsense? If religions feels like the government cannot constitutionally justify the restrictive measures taken, then argue so in court. Henceforth, whenever there is a post containing the word priority, let it contain a trigger warning for Pogi’s benefit. So let it be written; so let it be done. I suppose one of the differences between leftists and constitutionalists is that the former want laws to be enacted by activist judges who legislate from the bench, while the latter want that role to be assumed by elected representatives. 1
Scott Lloyd Posted June 24, 2020 Author Posted June 24, 2020 (edited) 20 minutes ago, bsjkki said: Local news does not vet AP stories. Is it from a wire service? He is referring to an incident cited by Elder Bednar in his talk and referred to in the Deseret News editorial to which I have linked. The editorial quotes and paraphrases Elder Bednar. Edited June 24, 2020 by Scott Lloyd
pogi Posted June 24, 2020 Posted June 24, 2020 (edited) 1 hour ago, Scott Lloyd said: He is referring to an incident cited by Elder Bednar in his talk and referred to in the Deseret News editorial to which I have linked. The editorial quotes and paraphrases Elder Bednar. This one didn’t quote or paraphrase Bednar though. It is now publishing the story as fact without vetting. Edited June 24, 2020 by pogi
Scott Lloyd Posted June 24, 2020 Author Posted June 24, 2020 4 hours ago, pogi said: This one didn’t quote or paraphrase Bednar though. It is now publishing the story as fact without vetting. While the editorial didn’t explicitly state that the incident was cited by Elder Bednar, the editorial mentioned it in the context of referencing Elder Bednar’s talk. The editorial also linked to a news story summarizing the apostle’s talk. I grant, though, that the editorial should have been clearer about attributing the incident to either Elder Bednar or to some other source.
Meadowchik Posted June 24, 2020 Posted June 24, 2020 9 hours ago, pogi said: Again with the "highest priority" above all other rights nonsense? If religions feels like the government cannot constitutionally justify the restrictive measures taken, then argue so in court. And now this will not help Utah as the current infections rise. 1
pogi Posted June 24, 2020 Posted June 24, 2020 (edited) 13 hours ago, Scott Lloyd said: I suppose one of the differences between leftists and constitutionalists is that the former want laws to be enacted by activist judges who legislate from the bench, while the latter want that role to be assumed by elected representatives. I am scratching my head here. Are you implying that I don’t want our elected representatives to enact the law in the constitution? If a constitutionalist thinks an elected representative is violating their religious constitutional rights, are you suggesting that they should NOT use their constitutional right to properly address the violation in court? Should they instead whine and complain of injustice and inspire mistrust of government officials, without just cause? I’ve never been called a leftist before. I think it is funny that you think I am a leftist simply because I believe governor Herbert and many, many other right wing governors acted within their constitutional rights and powers to properly protect the lives and health of the public. I think it is unfortunate that some, like you, are throwing their own under the bus. They did the right thing. They should be thanked. Edited June 24, 2020 by pogi 1
Popular Post pogi Posted June 24, 2020 Popular Post Posted June 24, 2020 (edited) 4 hours ago, Meadowchik said: And now this will not help Utah as the current infections rise. Agreed! What happens if this blows up in Utah and our healthcare system is overrun? What happens if the governor (right-wing and Latter-day Saint) closes church again to protect lives? Elder Bednar said “never again”. Will people disobey governor Herbert’s right to enact emergency measures to protect the people? Elder Bednar is unjustly eliciting mistrust in a pandemic when government officials are rightly acting within their powers to protect. I am very bothered by that. Edited June 24, 2020 by pogi 5
Scott Lloyd Posted June 24, 2020 Author Posted June 24, 2020 (edited) 2 hours ago, pogi said: I am scratching my head here. Are you implying that I don’t want our elected representatives to enact the law in the constitution? If a constitutionalist thinks an elected representative is violating their religious constitutional rights, are you suggesting that they should NOT use their constitutional right to properly address the violation in court? Should they instead whine and complain of injustice and inspire mistrust of government officials, without just cause? I’ve never been called a leftist before. I think it is funny that you think I am a leftist simply because I believe governor Herbert and many, many other right wing governors acted within their constitutional rights and powers to properly protect the lives and health of the public. I think it is unfortunate that some, like you, are throwing their own under the bus. They did the right thing. They should be thanked. You seemed contemptuous of the advocacy in the editorial for lawmaking bodies to craft legislation now to safeguard religious liberties in the face of future pandemics, in effect telling religious freedom advocates that if they don’t like what’s going on, they should take their chances, such as they are, with litigation in courtrooms where activist judges preside. Viewing the judicial system (not the legislative branch of government) as an avenue of law making instead of law interpretation is a leftist sentiment. A robust legislative branch of government helps to keep the courts from being clogged with grievances. Edited June 24, 2020 by Scott Lloyd
Scott Lloyd Posted June 24, 2020 Author Posted June 24, 2020 6 hours ago, Meadowchik said: And now this will not help Utah as the current infections rise. What will not help Utah?
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