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


smac97

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He's not wrong:

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Supreme Court Associate Justice Samuel Alito told Thursday’s meeting of the Federalist Society’s National Lawyer Convention that America’s First Amendment guarantees of religious liberty and freedom of speech are in grave danger, thanks in large part to state and local policies justified as responses to the Covid Pandemic.

“The pandemic has resulted in previously unimaginable restrictions on individual liberty,” Alito told the convention at the outset of his address, which he delivered virtually.

After cautioning that he was speaking as a judge and not as a policymaker, Alito continued, noting “all that I am saying, and I think it is an indisputable statement of fact, we have never before seen restrictions as severe, extensive and prolonged as those experienced for most of 2020.”

Calling the Covid crisis “a sort of constitutional stress test,” Alito said that “in doing so, it has highlighted disturbing trends that were already present before the virus struck.

Alito singled out the trend toward “law-making by executive fiat” rather than legislatively created and approved law, which, he said, has been pushed for more than a century by early 20th century progressives and the New Dealers of President Franklin D. Roosevelt.

Their vision was that “policy-making would shift from narrow-minded elected legislators to an elite group of appointed experts, so that in a word policy-making would become more scientific,” Alito explained.

That vision has largely been achieved, with a result that large delegations of authority from Congress to executive branch agencies has generated a flood of administrative rules and regulations about virtually every aspect of American life.

“And what have we seen in the pandemic? Sweeping restrictions imposed for the most part under statutes that confer enormous executive discretion,” Alito said.

"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."

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Citing Nevada’s statute granting that state’s governor extremely broad authority to act virtually without restraint, Alito said it illustrated the direction more broadly of law-making generally.

“First, what we see in this statute and in what was done under it is a particularly developed example of where the law has been going for some time, in the direction of government by executive officials who are thought to implement policies based on expertise, and in the purest form, scientific expertise.

“Second, laws giving this much discretion can of course be abused and whatever one may think about the Covid restrictions, we surely don’t want them to become a recurring feature after the pandemic is over.

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.

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“All sorts of things can be called a disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights. And whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes.”
...
Continuing, Alito observed that “it pains me to say this, but in certain quarters religious liberty is fast becoming a disfavored right.” He pointed to the 1993 Religious Freedom Restoration Act (RFFRA) as a measure of how far the country has come in the years since. That measure was passed with nearly-unanimous support in Congress and signed into law by President Bill Clinton.

“Today that widespread support has vanished, when states have adopted their own versions of RFFRA, they have been threatened with economic boycotts,” Alito said.

Yep.

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He cited “the protracted campaign” against the Little Sisters of the Poor Catholic charity, who “have been under unrelenting attack for the better part of a decade. Why? Because they refuse to allow their health insurance plan to provide contraceptives to their employees.”

Alito also cited the Masterpiece Cakeshop Decision in Colorado and Ralph’s Pharmacy case from Washington state, then observing that “for many today, religious liberty is not a cherished freedom, it’s often just an excuse for bigotry and it can’t be tolerated.”

Nobody was harmed as a result of any of the trio of cases he cited, according to Alito, but due to the intolerance that forced them onto the judicial docket, “the question we face is whether our society will be inclusive enough to tolerate people with unpopular religious beliefs.”

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

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Regarding the Nevada regulation that allowed casinos to operate with 50 percent of their capacity while limiting church services to no more than 50 worshipers, Alito said:

“If you go to Nevada, you can gamble, drink and attend all sorts of shows, but here’s what you can’t do. If you want to worship and you are the 51st person in line, sorry, you are out of luck.”

Alito said the Constitution contains the “free exercise of religion clause,” but not “a craps clause, or a blackjack clause or a slot machine clause. Nevada was unable to provide any plausible justification for treating casinos more favorably than houses of worship.

Alito suggested to his hearers that the Nevada case should convince them “that religious liberty is in danger of becoming a second-class right.”

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.

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Thoughts?

Thanks,

-Smac

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Although I have published in the area of religious liberty (https://lawandreligion.com/sites/law-religion/files/Religious-Free-Speech-Crockett.pdf), I have come to the conclusion that It isn't that important to the courts anymore.  RFRA was partly struck down.  I have been following COVID litigation and the churches have not prevailed.  

As a libertarian I am torn on the issue.  I am for complete freedom in the area of worship, as I am for the possession of guns and making publications, but I also oppose specialized legislation. 

Edited by Bob Crockett
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2 minutes ago, MustardSeed said:

I have zero concerns around this.  IMO when covid is over , those of us who are not dead will attend church without any restrictions from the government.

There are a lot more threats to religious liberty than just COVID-related worship restrictions.

When a Supreme Court justice is expressing concern about religious liberty, I think it merits some real attention.

Thanks,

-Smac

Edited by smac97
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The prophets have been teaching about the importance of constitutionally-protected religious freedom for some time and in many contexts.

https://www.churchofjesuschrist.org/study/manual/gospel-topics/religious-freedom?lang=eng

I think that even for the non-religious and areligious, it is a matter of free exercise of conscience that impacts all other constitutional freedoms.

 

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8 hours ago, carbon dioxide said:

I have not seen any infringement on my religious liberty.  We can do Church online right now and sacrament in our homes.  In some respects, its easier to practice my faith.  I can do it while my pajamas.

Yes, these are voluntary, temporary restrictions to normal practice guided by the Church given that states have ordered exceptions to their restrictions for religious purposes. But as Elder Bednar recently pointed out, there have been some unfortunate exceptions / attempts at exceptions to that which need to be prevented from happening again:

 https://newsroom.churchofjesuschrist.org/article/bednar-covid-19-pandemic-religious-freedom

A few years ago (2013), Elder Oaks said this: https://www.churchofjesuschrist.org/study/ensign/2013/02/balancing-truth-and-tolerance?lang=eng

"Believers can and must seek laws that will preserve religious freedom. Along with the ascendancy of moral relativism, the United States and other nations are experiencing a disturbing reduction in overall public esteem for religion. Once an accepted part of American life, religion is now suspect in the minds of many. Some influential voices even question the extent to which our constitutions should protect the free exercise of religion, including the right to practice and preach religious principles."

Where official government decisions result from the operation of politics, and politics are how societal attitudes are reflected in these decisions, I think a non-supportive (and often intolerant) attitude toward religions in general is dangerous.

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Compare a pandemic to an invasion of another nation. What impositions on our constitutional rights are acceptable during wartime against human beings on our home soil?  Not a rhetorical question, but rather in my opinion an informative line of thought.

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1 hour ago, Meadowchik said:

Compare a pandemic to an invasion of another nation. What impositions on our constitutional rights are acceptable during wartime against human beings on our home soil?  Not a rhetorical question, but rather in my opinion an informative line of thought.

I would say when the population data proves that particular aspects of religious participation are the cause of a disproportionate number of deaths from the disease, including reduced access to life-saving emergency treatment for other diseases, and imposed curtailments and mitigations are clearly temporary. Essential services would be treated the same.

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4 hours ago, CV75 said:

Yes, these are voluntary, temporary restrictions to normal practice guided by the Church given that states have ordered exceptions to their restrictions for religious purposes. But as Elder Bednar recently pointed out, there have been some unfortunate exceptions / attempts at exceptions to that which need to be prevented from happening again:

 https://newsroom.churchofjesuschrist.org/article/bednar-covid-19-pandemic-religious-freedom

A few years ago (2013), Elder Oaks said this: https://www.churchofjesuschrist.org/study/ensign/2013/02/balancing-truth-and-tolerance?lang=eng

"Believers can and must seek laws that will preserve religious freedom. Along with the ascendancy of moral relativism, the United States and other nations are experiencing a disturbing reduction in overall public esteem for religion. Once an accepted part of American life, religion is now suspect in the minds of many. Some influential voices even question the extent to which our constitutions should protect the free exercise of religion, including the right to practice and preach religious principles."

Where official government decisions result from the operation of politics, and politics are how societal attitudes are reflected in these decisions, I think a non-supportive (and often intolerant) attitude toward religions in general is dangerous.

The question Elder Oaks and other should be asking is "What is turning people away from religion.  What is causing a disturbing reduction in overall public esteem for religion and often intolerant attitude towards religion."  Could it be the very intolerant religion itself exhibits on others that don't believe as they do?  Could it be that religion is it's own worse enemy?

Satans plan to destroy religion is by religion's increased lack of respect for other peoples beliefs.  The more intolerant religion becomes of others, the more intolerant others become of religion.  Why does a religion need to demand government funds to run their adoption agencies?  Can anyone point to past events where this kind of thing was happening.  When did religion demand government money to run their private enterprises?  The government is not preventing religion from running their organizations the way they want.  The government is just saying it does not want to finance those inequalities before the law.  

The more religion pushes their rights over the rights of others, the more animosity and lack of respect for religion will happen.  It doesn't really matter to me whether cases like Catholic Adoption Charities is ruled in their favor.  Religion already has the right to discriminate against gay families. What they are demanding is those tax dollars.  They may win that battle also, but in the end, will loose the war.  Just like Prop 9, the Church may have won that battle, but not only did they loose the war, they lost respect that may never be what it once was.  I am a big believer in Martin Luther Kings "“the arc of the moral universe is long, but it bends toward justice.” I truly believe the greatest threat against religion is a continued lack of respect and in many cases the hypocrisy in what religion exhibits.  Simply put, religion has become it's own worse enemy.

I know there will be some on this board that will attack what I have stated.  And that is fine.  But if they want to be convincing in those attacks, they have to answer the questions I have posed.  

"What is turning people away from religion.  What is causing a disturbing reduction in overall public esteem for religion and often intolerant attitude towards religion."   

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20 hours ago, 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

This combined with the hostile forces already arrayed against religious belief in entertainment, the media, and education should cause all to be concerned. I think it is too late....not enough people even care about it any more.

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14 hours ago, carbon dioxide said:

I have not seen any infringement on my religious liberty.  We can do Church online right now and sacrament in our homes.  In some respects, its easier to practice my faith.  I can do it while my pajamas.

Depends on where you live, maybe. In western Washington, you are free to express your religion as much as you wish....just as long as you don't do it in public or let other people find out about it. I don't think "freedom of religion" means you must confine it to your home or practice it surreptitiously in public. That's not what freedom means.

Edited by Bernard Gui
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15 hours ago, carbon dioxide said:

I have not seen any infringement on my religious liberty.  We can do Church online right now and sacrament in our homes.  In some respects, its easier to practice my faith.  I can do it while my pajamas.

Except prohibitions against religious gatherings are an infringement. Now, many of us may like Church at home and sacrament at home, and are therefore not concerned about government actions, that does not change that religious liberties are being infringed....it just that many people do not care.

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1 hour ago, california boy said:

The question Elder Oaks and other should be asking is "What is turning people away from religion.  What is causing a disturbing reduction in overall public esteem for religion and often intolerant attitude towards religion."

***

"What is turning people away from religion.  What is causing a disturbing reduction in overall public esteem for religion and often intolerant attitude towards religion."   

Of course he is asking that question, just not in this particular talk.

My personal answer is: the negative aspects of human nature (which is its own worst enemy) play out in every system imaginable. Recognize, admit and rise above it. Focus on religious systems when appropriate, and recognize that in an increasingly secularized society that would include protecting pursuits and interests to which society ascribes supreme importance. Take away this freedom in the name of suppressing the boogey-man of "spiritual religion," and you won't be able to apply the principle to some other type of religion that is more important to you.

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1 hour ago, The Nehor said:

Alito is dead wrong. “Previously unimaginable”? Really? We have had pandemics before. We have locked down large parts of the United States before. I find Alito being unfamiliar with the past use of public health measures far more disturbing than his imagined religious liberty worries. We have shut down churches before. We also opened them back up. What is different this time?

He seems to be referring to the trend or direction of increasing reliance upon and numbers of executive orders and agency rules and regulations in an environment of increasingly polarized politics that disrupts the voice of the people being expressed through legislation, which gives a good deal of imbalanced power to the executive branches of states and the nation. Compounding the worrisomeness of this trend is the religious intolerance that forced the three cases he cites to the Supreme Court.

I think the increasing complexity of modern society and public emergencies of any kind may well warrant more changes in governing law/rules/regulations etc., but the trend that these are increasingly ordered by a few executives warrants vigilance on our part to protect our sacred freedoms. For me, there seems to be alignment between our Church's apostolic counsel and Alito's attitude, but that is not an endorsement of any party or political philosophy :)

The Constitution, in my opinion, is not a secular document in that in today’s prevailing attitudes, “secular” means “scientific” and even “anti-religion.” Its ingeniousness is in recognizing that there is more to the human experience than science.

 

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I went back to my Buddhist roots, would have gone back to meetings at my old temple had covid not been a thing.  That being said, none of us have noticed much, seems like it's you guys getting all the hate and grief.  If it was me, I'd ask why that is.

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16 hours ago, provoman said:

Except prohibitions against religious gatherings are an infringement. Now, many of us may like Church at home and sacrament at home, and are therefore not concerned about government actions, that does not change that religious liberties are being infringed....it just that many people do not care.

Because they're religious, yes. Because they involve close contact indoors? No. Religious protections does not mean religions require special accommodations in every situation, and it does not make citizens immune from the consequences of their impact on public health.

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19 hours ago, CV75 said:

He seems to be referring to the trend or direction of increasing reliance upon and numbers of executive orders and agency rules and regulations in an environment of increasingly polarized politics that disrupts the voice of the people being expressed through legislation, which gives a good deal of imbalanced power to the executive branches of states and the nation. Compounding the worrisomeness of this trend is the religious intolerance that forced the three cases he cites to the Supreme Court.

Except that there has not been a large increase in the number of executive orders. On a per year basis in recent political history the biggest number of executive orders on a per year basis goes to Carter. LBJ issued more per year than Trump, Ford more than Obama, and Kennedy about twice as many as GWB. Coolidge in less than six years issued more executive orders than Trump, Obama, GWB, and Clinton combined in all their terms. Where is this increasing reliance of executive power Alito is complaining about?

Note: I left out the World War Presidents specifically because they issued loads of them. Even factored over four years FDR issued them only a little short of one per day but war has that effect. Wilson was also unusually high but both are completely understandable.

https://www.presidency.ucsb.edu/statistics/data/executive-orders

19 hours ago, CV75 said:

I think the increasing complexity of modern society and public emergencies of any kind may well warrant more changes in governing law/rules/regulations etc., but the trend that these are increasingly ordered by a few executives warrants vigilance on our part to protect our sacred freedoms. For me, there seems to be alignment between our Church's apostolic counsel and Alito's attitude, but that is not an endorsement of any party or political philosophy :)

But they are not increasingly being used unless you are arguing this is mostly on the state level but I find that hard to believe. Most state legislatures make the federal congress look like complete slackers with the volume of bills they process and how much law they pass. Are the governors speeding ahead? I doubt it.

19 hours ago, CV75 said:

The Constitution, in my opinion, is not a secular document in that in today’s prevailing attitudes, “secular” means “scientific” and even “anti-religion.” Its ingeniousness is in recognizing that there is more to the human experience than science.

I disagree on both counts. The federal Constitution never even mentions God or anything supernatural. The states are way ahead on this. All 50 last time I checked mentioned God. Most state constitutions came later. Only three state constitutions were written in the 18th century. All the rest of the early states rewrote them entirely of their own accord or due to the Civil War and many states have rewritten them many times. Harking back to the Enlightenment era founders being more devout back then than in the following centuries really does not pan out.

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3 hours ago, The Nehor said:

Except that there has not been a large increase in the number of executive orders. On a per year basis in recent political history the biggest number of executive orders on a per year basis goes to Carter. LBJ issued more per year than Trump, Ford more than Obama, and Kennedy about twice as many as GWB. Coolidge in less than six years issued more executive orders than Trump, Obama, GWB, and Clinton combined in all their terms. Where is this increasing reliance of executive power Alito is complaining about?

Note: I left out the World War Presidents specifically because they issued loads of them. Even factored over four years FDR issued them only a little short of one per day but war has that effect. Wilson was also unusually high but both are completely understandable.

https://www.presidency.ucsb.edu/statistics/data/executive-orders

But they are not increasingly being used unless you are arguing this is mostly on the state level but I find that hard to believe. Most state legislatures make the federal congress look like complete slackers with the volume of bills they process and how much law they pass. Are the governors speeding ahead? I doubt it.

I disagree on both counts. The federal Constitution never even mentions God or anything supernatural. The states are way ahead on this. All 50 last time I checked mentioned God. Most state constitutions came later. Only three state constitutions were written in the 18th century. All the rest of the early states rewrote them entirely of their own accord or due to the Civil War and many states have rewritten them many times. Harking back to the Enlightenment era founders being more devout back then than in the following centuries really does not pan out.

Like every other data contest, depends on the sources one looks at of course. I looked at news, polling and academic sources showing both directions; conclusions about the trend depend on the type, temporal scope and statistical measures under study. For example, both left-center source CNN and more center source 536 show a decrease until Trump’s increase, so does that suggest Alito must be using data unfavorable to conservative bias (?); that would depend of course on what kind of conservative we're looking at and how we define them. I’m also pretty sure from personal experience that the COPVID-19 response has resulted in state governors issuing more executive orders than ever. Anyway, I think objections to Alito's remarks are based more in ideology than competing facts and graphs.

So, if one wishes to likewise characterize the apostolic counsel as ideological, fine; it has a place in the public square nevertheless. And it seems to dovetail with Alito's remarks for reasons described below.

As I said concerning the evolving meaning of secular, the Constitution does not have to mention God and the supernatural. By protecting religion, it recognizes that God and the supernatural are among the few venerated aspects of the human experience. Its secular nature does not mean it is scientific and anti-religion by nature as increasingly prevailing attitudes would maintain. The “wall of separation between Church and State” was not to be taken as anti-religious for the citizenry.

Edited by CV75
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I think it would be a heckuva lot easier (I'd like to use a stronger word there, but the censors are sleeping, and I don't want to wake them up ;) Shhh! :o) to stomach COVID-19-related restrictions on religious practice ("Going to church?  'Kay.  Butcha only can have ten people there!") if other, truly-nonessential establishments faced similar restrictions ("Going to a casino?  'Kay.  We're only half full today, but ... come on in! ")

I don't want to question the intelligence of any of my potential interlocutors, but, it's not so much the restrictions themselves per se ... "It's the hypocrisy, stupid!"  Church gatherings?  Nope!  Can't have those!  Might spread COVID-19!  Protesting, however, is a patriotic duty!  I can't shake the feeling that more than a few governors have always wanted to play the role of Petty Tyrant.

Edited by Kenngo1969
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2 hours ago, Kenngo1969 said:

I think it would be a heckuva lot easier (I'd like to use a stronger word there, but the censors are sleeping, and I don't want to wake them up ;) Shhh! :o) to stomach COVID-19-related restrictions on religious practice ("Going to church?  'Kay.  Butcha only can have ten people there!") if other, truly-nonessential establishments faced similar restrictions ("Going to a casino?  'Kay.  We're only half full today, but ... come on in! ")

I don't want to question the intelligence of any of my potential interlocutors, but, it's not so much the restrictions themselves per se ... "It's the hypocrisy, stupid!"  Church gatherings?  Nope!  Can't have those!  Might spread COVID-19!  Protesting, however, is a patriotic duty!  I can't shake the feeling that more than a few governors have always wanted to play the role of Petty Tyrant.

I agree. But two wrongs don't make a right.  I clearly see medical scientific reason to limit the number of people attending churches.  And  I also see a medical scientific reason if bars are allowed to have indoor crowded places.  

I can't control what other people choose to do.  But I can support those things that do make sense.  And I do.

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3 hours ago, Kenngo1969 said:

I think it would be a heckuva lot easier (I'd like to use a stronger word there, but the censors are sleeping, and I don't want to wake them up ;) Shhh! :o) to stomach COVID-19-related restrictions on religious practice ("Going to church?  'Kay.  Butcha only can have ten people there!") if other, truly-nonessential establishments faced similar restrictions ("Going to a casino?  'Kay.  We're only half full today, but ... come on in! ")

I don't want to question the intelligence of any of my potential interlocutors, but, it's not so much the restrictions themselves per se ... "It's the hypocrisy, stupid!"  Church gatherings?  Nope!  Can't have those!  Might spread COVID-19!  Protesting, however, is a patriotic duty!  I can't shake the feeling that more than a few governors have always wanted to play the role of Petty Tyrant.

It sounds like you would be ok with the church restrictions if the restrictions were fairly balanced - or at least they would be easier to swallow.  I agree that many governors could have done a better job balancing restrictions while weighing associated risks levels for each establishment - but that is not a job I would wish on anybody right now. 

We should all keep in mind that the restrictions on churches has been bipartisan.  It is not an illegal assault on religious liberty.  It is not unprecedented.  It is not all from one side. 

We should also keep in mind that the allowance of nonviolent protests has also been bipartisan. 

As predicted, thousands are protesting in Washington DC (no, not BLM)) egged on by the big man himself, even in the midst of church restrictions.  These are turning violent.  Many are also at the doorsteps of Utah governor and Lieutenant Governor (both republican) protesting masks.  Should we conclude that this is a right wing assault on religious liberty as they place restrictions on churches but allow large right-wing protests?   

I am just saying that I think our religious liberties are safe.  It appears that neither side is consistent and perfectly balanced with implementing restrictions.   

Edited by pogi
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13 minutes ago, pogi said:

It sounds like you would be ok with the church restrictions if the restrictions were fairly balanced - or at least they would be easier to swallow.  I agree that many governors could have done a better job balancing restrictions while weighing associated risks levels for each establishment - but that is not a job I would wish on anybody right now (we need to give some slack). 

We should all keep in mind that the restrictions on churches has been bipartisan.  It is not an illegal assault on religious liberty.  It is not unprecedented.  It is not all from one side. 

We should also keep in mind that the allowance of nonviolent protests has also been bipartisan. 

As predicted, thousands are protesting in Washington DC (no, not BLM)) egged on by the big man himself, even in the midst of church restrictions.  These are turning violent.  Many are also at the doorsteps of Utah governor and Lieutenant Governor (both republican) protesting masks.  Should we conclude that this is a right wing assault on religious liberty as they place restrictions on churches but allow large right-wing protests?   

I am just saying that I think our religious liberties are safe.  It appears that neither side is consistent with implementing restrictions.  Perfect balance in face of these challenges is not realistic.  They are doing their best (some better than others) in the face of unprecedented challenges and heightened emotions all around.

Your responses on Covid consistently bring sanity to a subject that often is based in hyped up emotional answers.  I just wanted to thank you for not only this post, but all the other ones you have been posting.

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