SCOTUS Justice Alito: "Religious Liberty Is In Danger Of Becoming A Second-Class Right"

[Ahab]

5 minutes ago, CV75 said:

When I said “people’s attitudes” I meant the plural, as in the attitudes of "people in general", and I meant in the context of religious tolerance, not in the notion of there being two kinds of people (those who are flexible in the views and those who are set in their views).

The attitudes of "people in general" are all across the whole spectrum of attitudes that different people have and can have.  Some are tolerant and some are not and everyone else falls somewhere between both of those extremes.

5 minutes ago, CV75 said:

Not blame, but at least a basis or a close connection. Good people and groups can still be intolerant toward religion, or support the social trend for such intolerance, out of benign neglect or even unintended ignorance.

No, good people are not intolerant toward religion.  Ever.  And if you think any good people are then you use a different definition of good than I do.

[CV75]

1 hour ago, Ahab said:

The attitudes of "people in general" are all across the whole spectrum of attitudes that different people have and can have.  Some are tolerant and some are not and everyone else falls somewhere between both of those extremes.

No, good people are not intolerant toward religion.  Ever.  And if you think any good people are then you use a different definition of good than I do.

Cool!

[Ahab]

1 minute ago, CV75 said:

Cool!

If you really thought it was cool I think you would have given me a rep point so I am having a hard time believing you thought what I was saying was cool.  Or maybe you like many others are just stingy about giving out rep points.

[CV75]

38 minutes ago, Ahab said:

If you really thought it was cool I think you would have given me a rep point so I am having a hard time believing you thought what I was saying was cool.  Or maybe you like many others are just stingy about giving out rep points.

Hi ha I'm stingy that's for sure  but what I meant by "Cool!" is that you have a different perspective from mine and that's quite OK by me

[The Nehor]

On 11/18/2020 at 7:59 AM, CV75 said:

As with your prior post, this is not at all what I've suggested, either.

Then you communicate poorly.

[The Nehor]

On 11/19/2020 at 1:21 PM, smac97 said:

Or we recognize that religious liberty is under attack, and we work to resist that.

Thanks,

-Smac

I would argue it is less that religious liberty is under attack and more that casinos can exert more pressure on lawmakers. Casinos should have been shut down. Houses of worship should have been shut down. Acting like this is an attack on religious liberty and not someone trying to keep the casino owners (and the incoming tax dollars from them) happy seems wrong.

It is looking at the problem from the wrong angle. The default was to shut things down. Do you think they allowed casinos to open to attack religious liberty? Now if everything was open and they shut down just the churches I would have alarm bells go off in my head. The reality is there is no strong political faction in the US that wants to destroy religious liberty. It can erode anyways of course but that is more likely to come from governments and people being ticked off on a personal level by churches.

This doomsaying is crazy. It also means that when a day comes that religious liberty is under real threat they will assume it is hysteria like the cake thing or the Covid thing. If you cry wolf on a weekly basis no one will listen will listen when a wolf actually shows up.

[smac97]

4 hours ago, The Nehor said:

I would argue it is less that religious liberty is under attack and more that casinos can exert more pressure on lawmakers.

It's not just casinos that are getting better treatment than religious groups.  

4 hours ago, The Nehor said:

Casinos should have been shut down.

And yet they weren't.  Nor gyms.  Nor liquor stores.  Nor home improvement stores.  Nor abortion clinics.  And on and on and on.

But churches have.  Religious groups have been singled out for disparate, lesser treatment.

4 hours ago, The Nehor said:

Houses of worship should have been shut down.

And in many jurisdictions, they have been, while many other locations have been allowed to remain open for people to congregate.

4 hours ago, The Nehor said:

Acting like this is an attack on religious liberty and not someone trying to keep the casino owners (and the incoming tax dollars from them) happy seems wrong.

I disagree.  I think there is ample evidence of disparate, discriminatory treatment by government of religious groups.

4 hours ago, The Nehor said:

It is looking at the problem from the wrong angle. The default was to shut things down.

And there were plenty of exceptions to this default.

4 hours ago, The Nehor said:

Do you think they allowed casinos to open to attack religious liberty?

I think this is looking at the problem from the wrong angle.

4 hours ago, The Nehor said:

Now if everything was open and they shut down just the churches I would have alarm bells go off in my head.

You are willing to cede to the government far more control regarding your life than I am regarding mine.

Reasonable minds can disagree about this, I suppose.

4 hours ago, The Nehor said:

The reality is there is no strong political faction in the US that wants to destroy religious liberty.

Lots of wiggle room in there.  

4 hours ago, The Nehor said:

It can erode anyways of course but that is more likely to come from governments and people being ticked off on a personal level by churches.

It's not an either/or proposal.

4 hours ago, The Nehor said:

This doomsaying is crazy.

I disagree with this characterization.  What is being expressed is neither "doomsaying" nor "crazy."

4 hours ago, The Nehor said:

It also means that when a day comes that religious liberty is under real threat they will assume it is hysteria like the cake thing or the Covid thing. If you cry wolf on a weekly basis no one will listen will listen when a wolf actually shows up.

As a contrary caution, I think there is real risk in ignoring incremental incursions against religious liberty.  Malaise instead of vigilance.

 “The condition upon which God hath given liberty to man is eternal vigilance.” - John Phillip Curran

Thanks,

-Smac

[Bob Crockett]

16 minutes ago, smac97 said:

I disagree.  I think there is ample evidence of disparate, discriminatory treatment by government of religious groups.

I hestitate to say "not one" but not one court in the land has agreed with you.  There have been many challenges to COVID shut down orders.  I have been hired multiple times to advise clients on the constitutionality of California and Los Angeles County's shutdown orders and I always have to reluctantly tell my clients it is a waste of time and money to challenge.

Having said that, the shutdown orders are absurdly invasive. 

I'd say about half of the evangelical congregations in my city hold services in the parking lots. 

Edited November 22, 2020 by Bob Crockett

[smac97]

33 minutes ago, Bob Crockett said:

I hestitate to say "not one" but not one court in the land has agreed with you. 

Are you sure?  See, e.g., here:

Quote

All of the successful challenges to stay-at-home orders by religious organizations have occurred in states that have passed some form of RFRA, or Religious Freedom Restoration Act. Although these courts have relied on the state RFRAs to varying degrees, it is not coincidental that all of the successful challenges have occurred in these states. See Maryville Baptist Church, Inc. v. Beshear, No. 20-5427 (6th Cir. 2020) (holding that plaintiffs were likely to prevail on Kentucky RFRA claims); On Fire Christian Center, Inc. v. Fischer, No. 3:20-cv-264 (W.D. Ky. Apr. 11, 2020) (identifying Kentucky’s RFRA as one of two legal bases in which the church would likely prevail); First Baptist Church v. Kelly (court relied on First Amendment grounds, but Kansas RFRA also raised by plaintiffs). Similarly, lawsuits that resulted in religious congregations getting relief before the issuance of a court order were filed in states that have a RFRA. At least two other successful challenges have occurred in Kentucky, and, until recently, all successful challenges regarding in-person meetings occurred in RFRA states. A recent decision in North Carolina enjoining in-person meeting restrictions became the first successful challenge to in-person restrictions in a state without a RFRA.

And here (same link) :

Quote

Religious liberty advocates should keep a close eye on Soos v. Cuomo in the Northern District of New York. Catholic priests and Orthodox Jews have sued the state of New York for its restrictions to 10-person gatherings throughout much of the state. The State of New York has allowed massive protests without attempting to enforce New York's stay-at-home orders. Government officials have acknowledged that protesters will receive preferential treatment to religious congregants. In its briefing, New York does not acknowledge any preferential treatment for protesters, instead comparing religious congregations to businesses that have no more than bare due process protections.  

On June 26, the district court issued a Memorandum Decision and Order in which it granted plaintiffs' preliminary injunction, noting that businesses where people congregate, such as restaurants, are allowed to open at 50% capacity, but religious gatherings were limited to 25% capacity. The court also noted that Governor Cuomo and Mayor De Blasio actively encouraged and supported protests while discouraging religious gatherings, finding that "Governor Cuomo and Mayor de Blasio could have just as easily discouraged protests, short of condemning their message, in the name of public health and exercised discretion to suspend enforcement for public safety reasons instead of encouraging what they knew was a flagrant disregard of the outdoor limits and social distancing rules. They could have also been silent. But by acting as they did, Governor Cuomo and Mayor de Blasio sent a clear message that mass protests are deserving of preferential treatment."

These factors, along with exemptions such as graduations, spurred the court to find that there are individualized exceptions to the stay-at-home orders and to invoke the strict scrutiny standard set forth in Church of Lukumi. The court held that New York had not even attempted to justify its actions in a way that would satisfy strict scrutiny and, therefore, issued a preliminary injunction against enforcing the stay-at-home orders against religious congregations in any form stricter than the Phase 2 industries. 

This article includes an apparently ongoing spreadsheet showing the status of various legal challenges to COVID restrictions on religious groups, including the following in which the religious groups prevailed (to some extent, anyway) :

• On Fire Christian Center, Inc. v. Fischer (Kentucky)
• First Baptist Church v. Kelly (Kansas)
• Maryville Baptist Church, Inc. v. Beshear (6th Cir.) (Kentucky)
• Word of Faith Christian Center v. Whitmer (Michigan)
• Freed v. Inslee (Washington)
• Tabernacle Baptist Church v. Beshear (6th Cir.) (Kentucky)
• Berean Baptist Church v. Cooper (North Carolina)
• Elkhorn Baptist Church v. Brown (Oregon)
• First Pentecostal Church of Holly Springs v. City of Holly Spring (5th Cir.) (Mississippi)
• Ramsek v. Beshear (Kentucky)
• Soos v. Cuomo (New York)

See also here:

Quote

In what was called a victory for religious freedom, a federal court judge’s decision Thursday means congregants at Colorado churches will no longer be required to wear masks or limit their numbers as required by the governor of Colorado’s COVID-19 mandates.

The pastors of two Colorado churches — Bob Enyart of Denver Bible Church in Wheat Ridge and Joey Rhoads of Community Baptist Church in Brighton – filed the lawsuit in August.

“The lawsuit,” said Special Counsel Rebecca Messall, one of the Thomas More Society attorneys representing the Colorado pastors, “calls both the federal government and Colorado leaders into account for their violations of the right to free exercise of religion, among other abuses of power, primarily resulting from Gov. Jared Polis’ COVID-19 related Executive Orders.”

The battle is not over, however.

A spokesperson from the governor’s office on Thursday said there would be no comment on the case but called it “pending litigation.” She indicated the state’s Attorney General filed an emergency motion for an injunction on Monday to keep the orders in place.

The state plans to appeal the federal judge’s decision.

And here:

Quote

Colorado Coronavirus Response Unconstitutionally Restricted Religious Institutions, Holds Federal Judge

Houses of worship, which the Colorado order labels "critical" institutions, must be treated at least as well as other critical institutions.

From Judge Daniel D. Domenico's decision last week in Denver Bible Church v. Azar ...:

 

Quote

 

The State rightly argues that during a public-health emergency, courts must be particularly mindful of the complex interaction between constantly evolving scientific understanding and policymaking, and the court recognizes that the decisions being made by the State Defendants here are truly matters of life and death. For the most part, the court, like Plaintiffs and the rest of Colorado's citizenry, must and does defer to State policymakers' weighing of the costs and benefits of various restrictions imposed to minimize the spread of COVID-19.

But the existence of an emergency, even one as serious as this one, does not mean that the courts have no role to play, or that the Constitution is any less important or enforceable. And while the religious, like the irreligious or agnostic, must comply with neutral, generally applicable restrictions, the First Amendment does not allow government officials, whether in the executive or judicial branch, to treat religious worship as any less critical or essential than other human endeavors. Nor does it allow the government to determine what is a necessary part of a house of worship's religious exercise. Those fundamental principles, which involve no balancing or second-guessing of public health officials' scientific analysis or policy judgments, require the court to grant Plaintiffs' motion, in relatively narrow part.

In addition to other neutral and generally applicable restrictions, Colorado currently imposes capacity limits on houses of worship that are more severe than those that apply to other so-called critical businesses whose settings pose a similar risk of COVID-19 transmission, and the State allows a variety of exceptions to its facial-covering requirement where it recognizes that removing a mask is necessary to carry out a particular activity. The court does not doubt that the State made these decisions in good faith, in an effort to balance the benefits of more public interaction against the added risk that inheres in it. But the Constitution does not allow the State to tell a congregation how large it can be when comparable secular gatherings are not so limited, or to tell a congregation that its reason for wishing to remove facial coverings is less important than a restaurant's or spa's.

 

And applying normal constitutional scrutiny, in light of these considerations, the court held that Colorado Public Health Order 20-35 violates the Free Exercise Clause:

Quote

 

While the order designates houses of worship as "critical," in practice it treats them differently from other "critical" businesses and activities, even those that pose a comparable risk of COVID-19 transmission. Plaintiffs highlight two restrictions in the order that, they contend, are unconstitutionally applied to houses of worship and burden their right to free exercise: occupancy caps for indoor worship services, and the requirement that worshippers wear a face mask for indoor services….

Under the current Public Health Order, at Level 1 of the Safer at Home Levels, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 175 people." At Level 2, houses of worship "may operate at 50% of the posted occupancy limit indoors not to exceed 50 people." And at Level 3, they "may operate at 25% of the posted occupancy limit indoors not to exceed 50 people."

Even though many secular institutions designated as "non-critical" are also required to comply with the same or similar occupancy limitations, Public Health Order 20-35 creates exemptions for a wide swath of secular institutions deemed "critical," including: meat-packing plants, distribution warehouses, P-12 schools, grocery stores, liquor stores, marijuana dispensaries, and firearms stores. In other words, the JBS meat-packing plant in Greeley, the Amazon warehouses in Colorado Springs and Thornton, and your local Home Depot, Walmart, King Soopers, and marijuana shop are not under any additional occupancy limitation other than the six-foot distancing requirement. Denver Bible Church and Community Baptist Church, by contrast, must comply with numerical occupancy caps, no matter how many people their sanctuaries might accommodate while maintaining six feet of distance between non-household members.

 

 

And here:

Quote

A D.C. federal court late Friday granted permission for a large D.C. church to hold outdoor worship services, saying the city’s coronavirus restrictions banning church services of more than 100 people — indoors or out — appear to violate the church’s religious-exercise rights.

 

Capitol Hill Baptist Church, which has 850 members and no online worship services, has been meeting in a Virginia field. The U.S. District Court’s granting of a preliminary injunction allows the church to meet outdoors en masse in the city, where most of its members live, while its lawsuit moves forward.

And here:

Quote

Key Cases

Courts Reach Mixed Conclusions on Challenges to COVID-19 Assembly Restrictions

Nathan A. Adams IV

Several recent cases concern challenges to executive orders relating to COVID-19 limiting the ability of churches to assemble and imposing other limitations. Beginning with appellate decisions, these cases are summarized in two groups: one group where courts enjoined the executive orders and another group where they did not.

Granting Injunction

In Roberts v. Neace, 958 F. 3d 409 (6th Cir. 2020), the court ruled that congregants of Maryville Baptist Church who wanted to attend in-person worship services were likely to succeed on the merits of their free exercise claim against Kentucky Gov. Andy Beshear and others due to two executive orders that 1) prohibit faith-based mass gatherings and 2) require the closing of organizations that are not "life-sustaining."

Here is another compendium of ongoing litigation on this issue.

I think there are plenty of religious groups, like the Church of Jesus Christ, that are erring on the side of caution and going along with COVID restrictions, but are still concerned about infringements of religious liberty.

Quote

There have been many challenges to COVID shut down orders.  I have been hired multiple times to advise clients on the constitutionality of California and Los Angeles County's shutdown orders and I always have to reluctantly tell my clients it is a waste of time and money to challenge.

Well, in California, sure.

Quote

Having said that, the shutdown orders are absurdly invasive. 

All the more reason to work against them (legally).

Quote

I'd say about half of the evangelical congregations in my city hold services in the parking lots. 

And I hope the law is allowing that.

Thanks,

-Smac

Edited November 22, 2020 by smac97

[Bob Crockett]

I am glad to see there is some success.  I am more offended by the larger order. 

[Sandra Day OTanner]

On 11/13/2020 at 1:48 PM, smac97 said:

He's not wrong:

"Enormous executive discretion" is legal/political jargong meaning "The government, particularly the executive branch (POTUS and state governors) get to do pretty much whatever they want."

Yes, I'm sure the governor of Nevada will surrender the emergency powers he's received during this crisis.

Palpatine made the same promise, you know.

Yep.

We, as Latter-day Saints, need to be okay with other people holding "unpopular religious beliefs."  Because our beliefs are unpopular in many quarters.

Justice Alito is quite right here.  This point needs to be made again and again.  When the government imposes more restrictions on a constitutionally-protected right (to worship) than on non-constitutionally-protected rights (to gamble in a casino), we are in big trouble.

Thoughts?

Thanks,

-Smac

It is unfortunate that Justice Alito made these comments.

He should save his opinions for his assent or dissent on any given case.  Speaking out in general terms makes me wonder if he should recuse himself from future cases.  He is, by his own admission, not objective.  And our justices should be objective.

[smac97]

8 hours ago, Sandra Day OTanner said:

It is unfortunate that Justice Alito made these comments.

Well, I will think on that.

8 hours ago, Sandra Day OTanner said:

He should save his opinions for his assent or dissent on any given case. 

I don't understand.  Is it your position that SCOTUS justices should never speak publicly?

8 hours ago, Sandra Day OTanner said:

Speaking out in general terms makes me wonder if he should recuse himself from future cases. 

Could you explain why?  It seemed to me that he was speaking in defense of constitutional rights.  Express ones.  Right there in the text.  

8 hours ago, Sandra Day OTanner said:

He is, by his own admission, not objective. 

Could you specify where he admitted this?

8 hours ago, Sandra Day OTanner said:

And our justices should be objective.

Objective as between two litigants, certainly, and yet strongly devoted to upholding the Constitution and the rule of law.

Thanks,

-Smac

[Bob Crockett]

9 hours ago, Sandra Day OTanner said:

It is unfortunate that Justice Alito made these comments.

He should save his opinions for his assent or dissent on any given case.  Speaking out in general terms makes me wonder if he should recuse himself from future cases.  He is, by his own admission, not objective.  And our justices should be objective.

You may be right but there is no ethical standard, statute or constitutonal provision which limits what Supreme Court justices may say.    The constitution provides:  "The Judges, both of the supreme and inferior courts, shall hold their offices during good behavior."  But they may be impeached for “treason, bribery, or other high crimes and misdemeanors.”

No Supreme Court justice has ever been impeached and convicted and certainly not for speaking out on social issues.  There are many examples of justices being highly political.   One of the justices (I can't recall which today) who sat on the Reynolds case involving polygamy was chairman of a national Bible society responsible for pushing a constitutional amendment to make the United States  a Christian nation.

[CV75]

9 hours ago, Sandra Day OTanner said:

It is unfortunate that Justice Alito made these comments.

He should save his opinions for his assent or dissent on any given case.  Speaking out in general terms makes me wonder if he should recuse himself from future cases.  He is, by his own admission, not objective.  And our justices should be objective.

I once said the same thing about something Justice Ginsburg said (I can't recall the issue or the context in which she said it), but since then I figured they have the right to express their views -- there may be a fine line between personal views and interpreting the law but I think they (the justices on the whole) have demonstrated they can handle it.

[Kenngo1969]

On 11/22/2020 at 6:03 AM, The Nehor said:

Then you communicate poorly.

No, not particularly.  Not any worse than you or than anyone else.

[Bob Crockett]

I should add that Scalia was a frequent speaker.  I attended one of his talks in Los Angeles.  An impressive man.  He spoke on constitutional textualism and originalism.  Now, I don't believe in those doctrines.  After all, the constitution provides for amendments.  But Scalia was certainly compelling and convincing.  A first rate intellect.  

A couple of justices came to my law school when I was there.   Rhenquist, O'Conner.  They stuck to the script of court procedure, but I could tell later that Scalia was heads and shoulders above them even if I did not agree with him.

Lower judges have a hard time speaking out about issues and cases as they are subject to the discipline of higher courts.   One of my federal district court judges I was trying a case before, Manny Real and a judge in his 80s, was investigated by the Ninth Circuit for sleeping with a litigant who was in a case before him.   The Ninth Circuit issued a whitewash with Kazinski issuing a 60-page dissent that was twice as long as the whitewash.  But Supreme Court justices are not so constrained.  (Kaskinsi, my libertarian hero, spoke freqently on libertarian issues and cases.  He maintained a website about sex with barnyard animals.)

Edited November 23, 2020 by Bob Crockett

[Kenngo1969]

Shhhhhh!  It's only bad when conservatives do it!  Sandra Day O'Tanner knows!

[provoman]

On 11/15/2020 at 1:02 PM, The Nehor said:

Public health orders shutting down places of worship due to public health concerns have been deemed constitutional since the 1700s. Go complain to the founders. This is not new and it is not a fresh assault on religious liberty.

Status quo isn't a basis necessarily a basis for current situations; time and time again the Courts have gone against status quo. 

[Analytics]

On 11/22/2020 at 11:33 AM, smac97 said:

And yet they weren't.  Nor gyms.  Nor liquor stores.  Nor home improvement stores.  Nor abortion clinics.  And on and on and on.

But churches have.  Religious groups have been singled out for disparate, lesser treatment....

Would you be happy if churches were treated like gyms and liquor stores and home improvement stores? This would mean churches could have stayed open. And would face the same tax burden as the other businesses you listed.

[smac97]

3 minutes ago, Analytics said:

Quote

And yet they weren't.  Nor gyms.  Nor liquor stores.  Nor home improvement stores.  Nor abortion clinics.  And on and on and on.

But churches have.  Religious groups have been singled out for disparate, lesser treatment....

Would you be happy if churches were treated like gyms and liquor stores and home improvement stores?

I would be happy if religious groups were not subjected to disparate, lesser treatment and regulations by the government.

3 minutes ago, Analytics said:

This would mean churches could have stayed open. And would face the same tax burden as the other businesses you listed.

I don't understand what you are referencing here.

Thanks,

-Smac

[Analytics]

28 minutes ago, smac97 said:

I would be happy if religious groups were not subjected to disparate, lesser treatment and regulations by the government.

I don't understand what you are referencing here.

Thanks,

-Smac

Churches get all sorts of tax breaks that the businesses you listed do not. From this perspective, churches get disparate, favorable treatment and regulations by the government. On the whole, I think churches are treated very favorably--in my opinion, unconstitutionally so.

[smac97]

21 minutes ago, Analytics said:

Quote

I would be happy if religious groups were not subjected to disparate, lesser treatment and regulations by the government.

I don't understand what you are referencing here.

Churches get all sorts of tax breaks that the businesses you listed do not.

So First Amendment rights can be curtailed based on tax status?

Are you sure about that?

Thanks,

-Smac

[Analytics]

49 minutes ago, smac97 said:

So First Amendment rights can be curtailed based on tax status?

Are you sure about that?

Thanks,

-Smac

I didn't say First Amendment rights can be curtailed based on tax status. I said that compared to the businesses you listed, Churches are treated favorably. 

[smac97]

25 minutes ago, Analytics said:

Quote

Quote

Quote

Quote

Analytics: Would you be happy if churches were treated like gyms and liquor stores and home improvement stores?

Smac: I would be happy if religious groups were not subjected to disparate, lesser treatment and regulations by the government.

Quote

Analytics: This would mean churches could have stayed open. And would face the same tax burden as the other businesses you listed.

Smac: I don't understand what you are referencing here.

Analytics: Churches get all sorts of tax breaks that the businesses you listed do not.

Smac: So First Amendment rights can be curtailed based on tax status?  Are you sure about that?

Analytics: I didn't say First Amendment rights can be curtailed based on tax status.

It sure sounded like it.

25 minutes ago, Analytics said:

I said that compared to the businesses you listed, Churches are treated favorably. 

"Treated favorably" being code for being tax exempt.

This is you not tying First Amendment rights to tax status?

Thanks,

-Smac

[Analytics]

40 minutes ago, smac97 said:

"Treated favorably" being code for being tax exempt.

It isn't code. It is something I directly said.

 

40 minutes ago, smac97 said:

This is you not tying First Amendment rights to tax status?

Correct. I am not tying First Amendment rights to tax status. Rather, I'm pointing out that in some extremely important ways, the government strongly favors religion.