Pres. Oaks: "Religious Rights Cannot Be Absolute"

[smac97]

Religious rights ‘cannot be absolute,’ LDS apostle Dallin Oaks says, in call for a global movement

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In issuing a spirited plea to protect faith freedoms across the globe, Latter-day Saint apostle Dallin H. Oaks cautioned that “religious rights cannot be absolute.”

“In a nation with citizens of many different religious beliefs or disbeliefs,” the church leader said Wednesday in a keynote address at the Notre Dame Religious Liberty Summit near the Vatican, “government must sometimes limit the rights of some to act upon their beliefs when doing so is necessary to protect the health, safety and welfare of all.”

I really like this.  I am grateful that Pres. Oaks is bringing his legal training to bear on the interplay between government and religious liberty, and that he is publicly acknowledging that governments can legitimately circumscribe religious rights in some circumstances.

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Oaks emphasized that faith freedoms cannot — and should not — always trump other liberties.

“Some other citizens may … have competing constitutional rights,” he said, “against which some religious liberties must be balanced.”

Oaks said any resulting compromises need not cut into a denomination’s core principles. Instead, he said, negotiations require a “careful examination of what is really essential to our free exercise of religion.”

This entreaty for a middle way echoed a landmark talk Oaks gave last year at the University of Virginia urging a balance in safeguarding, for instance, religious and LGBTQ rights — and arguing that such a balance can best be achieved through legislation, not litigation.

“This is not a call for doctrinal compromises,” he said Wednesday. “But rather a plea for unity and cooperation on strategy and advocacy toward our common goal of religious liberty for all.”

This is a really solid point.

He goes on to acknowledge that religious rights are facing real challenges right now:

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Oaks, a former Utah Supreme Court justice and the man next in line to lead The Church of Jesus Christ of Latter-day Saints, endorsed the creation of “interreligious coalitions” to lobby for a cause he has championed for much of his judicial and ecclesiastical career.

“From Rome, this great cradle of the Christian faith,” the 89-year-old leader said, “I call for a global effort to defend and advance the religious freedom of all the children of God in every nation of the world.”

In urging this sweeping movement, Oaks, according to a transcript of his remarks, warned that faith is “under siege” from secularism, authoritarianism, political correctness and “deteriorating attitudes” toward religion.

He said religions themselves can help turn this tide through their own good works.

“As more of our service genuinely benefits society and is clearly [seen by others as] motivated by our religious beliefs,” he said, “this will be recognized by the general public.”

Oaks, first counselor in the Utah-based faith’s governing First Presidency, pointed to the outreach of Latter-day Saint Charities, the church’s humanitarian arm, which responded to 199 emergencies in 61 countries and territories last year and provided 80 million pounds of donated food.

“Often, this aid was more than supplies or funding, but included volunteered time and service by thousands of our members,” he added. “Such personal efforts are an important public manifestation of the religious motivation that drives humanitarian assistance.”

Good stuff.

A complete transcript of Pres. Oaks' talk is available on the Church's website: Pursuing Religious Liberty Worldwide

A few more good points made by Pres. Oaks:

1. He lays out "three key events in the modern development of religious liberty":

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The first was the 1787 United States Constitution, adopted after American independence from Britain. Its First Amendment, added four years later, prohibited government sponsorship or domination of religion and assured the freedoms of religious exercise, speech, press, and the right to assemble and petition for the redress of grievances. Appropriately, all these basic civil liberties have been included in the constitutions of all states in the United States.
...

{A} second key event in the development of religious liberty was the Universal Declaration of Human Rights, proclaimed by the United Nations General Assembly in 1948. Most significantly, Article 18 declares:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.[14]

Importantly, this declaration opens with an affirmation that resonates with the doctrine of many religions.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.[15]

This declaration has paved the way for twenty-seven multilateral human rights treaties,[16] important regional human rights instruments,[17] and numerous other human rights treaties.
...
{The} third key event in the development of religious liberty was the 1965 Vatican II Declaration on Religious Freedom (Dignitatis Humanae).[18] This declared the root principle that each person, made in the image and likeness of God, has inherent dignity and is therefore created to be free and to enjoy religious freedom. In addition to stressing the religious freedom of individuals, Dignitatis Humanae also recognized that individuals practice religion in community with one another. This freedom for organizations is vital to Catholics and all other religions that sponsor schools, medical care, and other social service organizations.

2. He also offers "four brief suggestions" as to "ways religious institutions and believers can strengthen religious liberty worldwide":

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1. Our responses to governmental laws and our relations with potential adversaries will be helped if we accept the twin realities (1) that we are all fellow citizens who need each other and (2) that we are all subject to law.

In responses to government, we should remember Jesus’ charge to “render [give] … unto Caesar the things which are Caesar’s.”[32] Even religious rights cannot be absolute. In a nation with citizens of many different religious beliefs or disbeliefs, the government must sometimes limit the rights of some to act upon their religious beliefs when doing so is necessary to protect the health, safety, and welfare of all. In addition, some other citizens may even have competing constitutional rights against which some religious liberties must be balanced.

Our efforts to resolve challenges to religious liberty will be strengthened if we do not always seek total dominance for our own positions. Some accommodations may be necessary as we strive to honor legitimate laws and respect other persons’ highest ideals and human experiences. Conflicting claims are best resolved by seeking to understand the experiences and concerns of others, and by good faith negotiations. None of this requires any compromise of our core religious principles, but rather a careful examination of what is really essential to our free exercise of religion, in contrast to what other believers consider really essential to their beliefs. In this way we learn to live peacefully with some laws we dislike and with some persons whose values differ from our own.

2. The most serious violations of religious freedom are not merely discrimination but persecution. Much religious persecution, in the United States and probably worldwide, has been one or more religious groups persecuting others. The mob that murdered Joseph Smith, the first prophet and president of my Church, was led by a man known as a “sometime” Protestant minister.^[34] The Blaine Amendments mentioned earlier were promoted by predominantly Protestant lawmakers opposing predominantly Catholic schools. Protestants have suffered their own share of persecutions. Occurrences of antisemitism, Islamophobia, and persecution of Christians are current examples of serious violations of religious freedom.
...
In every country, religious leaders can play an important role in discouraging the use of state power to cause or support religious persecution. We hope and pray that the religious duties of religious leaders will incline them to oppose the use of state- or religion-supported coercion on the sacred subjects of religious choice and activity. Further, we who live under laws that promote religious freedom need to use our persuasive powers to encourage religious liberty for those not so favored.

3. The preservation of religious liberty ultimately depends on the understanding and support of the general public. And that, in turn, depends on the value the public attaches to the teachings of churches, synagogues, mosques, and other places of worship and what believers do with those teachings.

If the foundation of religious liberty is weakening, it is likely in part because the benefits conferred on society by religious organizations and religiously motivated people are not sufficiently known and acknowledged. We need to address that deficiency on a wider front than preaching, lobbying, and litigating. Religious institutions and believers must teach and act to make the beneficial public effects of religious teachings and practices more visible to nonbelievers. And we need more believers to practice their religious faith more visibly by serving others.

We should serve others in ways that help them understand that our voluntary service is motivated by our religious beliefs. As Jesus taught, “Let your light so shine before men, that they may see your good works, and glorify your Father which is in heaven.”^[36] As more of our service genuinely benefits society and is clearly motivated by our religious beliefs, this will be recognized by the general public.
...

Religious communities can offer something governments—however well financed—cannot provide: large-scale person-to-person kindness and empathy to accompany material assistance.

The religiously motivated practices of one denomination can benefit society generally. As they do, the value and strength of the religious freedom that makes them possible is more evident and easier to support generally.

4. Finally, as declared by so many religious leaders, we must unite and find common ground for defending and promoting religious liberty. This is not a call for doctrinal compromises, but rather a plea for unity and cooperation on strategy and advocacy toward our common goal of religious liberty for all. Speaking to an audience in his native Brazil, an apostolic colleague described it this way:

Religious freedom is as much a duty toward others as it is a right for oneself. … We gain freedom by supporting the freedom of those we deem to be our adversaries. When we see that our interests are tied to the interests of everyone else, then the real work of religious freedom begins.[37]

With the love and mutual respect taught by divine commandments, we need to find ways to learn from one another and to reinforce the common commitments that hold us together and promote stable pluralistic societies. We should walk shoulder to shoulder along the path of religious freedom for all, while still exercising that freedom to pursue our distinctive beliefs.

On behalf of The Church of Jesus Christ of Latter-day Saints, I testify of the divinity of our Savior and Redeemer Jesus Christ, and as one of His apostles, I invoke His blessings on all who seek to serve God, including those who seek to advance religious freedom. In the name of Jesus Christ, amen.

Well said and well done, Pres. Oaks!  

Thanks,

-Smac

[SeekingUnderstanding]

32 minutes ago, smac97 said:

Our efforts to resolve challenges to religious liberty will be strengthened if we do not always seek total dominance for our own positions. Some accommodations may be necessary as we strive to honor legitimate laws and respect other persons’ highest ideals and human experiences.

I for one was pleased to see all four Utah congressional reps vote to codify both interracial and same sex marriages. Both of which have been looked down on from a Latter-day Saint perspective. 

[2BizE]

So, government sometimes may need to prevent church-goers from meeting in person during a pandemic? 
I think this must be one of the examples.

Didn’t Elder Bednar give a speech against government limiting church meetings a while back?

[The Nehor]

7 minutes ago, 2BizE said:

So, government sometimes may need to prevent church-goers from meeting in person during a pandemic? 
I think this must be one of the examples.

Didn’t Elder Bednar give a speech against government limiting church meetings a while back?

Neither President Oaks or Elder Bednar buy into a false dilemma where either the government shuts down church meetings at their whim and must be obeyed absolutely or the idea that government shut downs of public meetings are never appropriate. Biology doesn’t care about liberalism or authoritarianism or what is fair or what is good for the gospel or the state.

[smac97]

32 minutes ago, 2BizE said:

So, government sometimes may need to prevent church-goers from meeting in person during a pandemic? 
I think this must be one of the examples.

Maybe, maybe no.

32 minutes ago, 2BizE said:

Didn’t Elder Bednar give a speech against government limiting church meetings a while back?

I'm not sure that's an altogether accurate characterization of Elder Bednar's comments: COVID-19 Crisis—A Wake-Up Call for Religious Freedom

Some excerpts (emphases added) :

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Elder Bednar said the pandemic has alerted us to the limitations in the food supply chain; our dependence on other nations for essential medical supplies, pharmaceuticals and other products; constraints in inventory and delivery systems for manufacturing plants and retail businesses; deficiencies in our national and local health care systems; the importance of defending the borders between personal liberty, constitutional rights and governmental authority; and attacks on the freedoms of religion, speech and assembly.

...

Impacts on Religious Freedom

Elder Bednar warned there is a danger in limiting a religious organization’s right to gather. “Gathering, in short, is at the core of faith and religion. Indeed, if the faithful are not gathering, sooner or later they will begin to scatter. And because gathering lies at the very heart of religion, the right to gather lies at the very heart of religious freedom.”

When the pandemic hit, congregations of many faiths around the world canceled worship services and other activities to abide by government restrictions for large group gatherings to slow the spread of the coronavirus.

“I believe it is vital for us to recognize that the sweeping governmental restrictions that were placed on religious gatherings at the outset of the COVID-19 crisis truly were extraordinary,” Elder Bednar explained. “No other event in our lifetime—and perhaps no other event since the founding of this nation—has caused quite this kind of widespread disruption of religious gatherings and worship.” 

Four Personal Reflections

Elder Bednar offered four personal reflections on the impacts of the coronavirus pandemic:

• Government power can never be unlimited.
• Religious freedom is paramount among our fundamental rights.
• Religious freedom is fragile.
• In a time of crisis, sensitive tools are necessary to balance demands of religious liberty with the just interests of society.

In North America, Elder Bednar pointed out, jurisdictions deemed services related to alcohol, animals and marijuana as essential, while the services of religious organizations were classified as nonessential, even when those activities could be safely conducted.

The senior Church leader cited examples in one state where Catholic priests were barred from anointing a parishioner with holy oil in the performance of last rites, even if that person did not have COVID-19. In the same state, Latter-day Saints were not allowed to perform baptisms. 

“The power of government must have limits,” asserted Elder Bednar.

“This time of restriction and confinement has confirmed for me that no freedom is more important than religious freedom,” said the senior leader of the global faith. “Protecting a person’s physical health from the coronavirus is, of course, important, but so is a person’s spiritual health.”

Elder Bednar continued, “While believers and their religious organizations must be good citizens in a time of crisis, never again can we allow government officials to treat the exercise of religion as simply nonessential. Never again must the fundamental right to worship God be trivialized below the ability to buy gasoline.”

Elder Bednar said the COVID-19 crisis demonstrates the fragility of religious freedom and the need to shore it up.

“In our understandable desire to combat COVID-19, we, too, as a society may have forgotten something about who we are and what is most precious,” he concluded. “Now is the time for us to heed the wake-up call, to remember and to act.”

I don't see anything in that that is incompatible with Pres. Oaks' remarks from yesterday.

Thanks,

-Smac

[The Nehor]

Elder Bednar’s comments about alcohol being essential ignore the obvious problem that in many ways they literally are a public health concern. For casual drinkers it is not a problem but cutting off a bunch of alcoholics cold turkey could lead to all kinds of disasters. The ER rooms couldn’t cope with a bunch of people detoxing on top of covid. There is also a possibility of even larger increases in domestic abuse. I am a little weirded out by Elder Bednar saying animal services are frivolous. Keeping a beloved pet healthy is not frivolous, especially when a child is in lockdown. Marijuana is kind of “meh” but I am not sure if he is talking about medically prescribed weed or not.

I also think Elder Bednar was overly optimistic by saying that services could be safely conducted. They couldn’t be.

[smac97]

33 minutes ago, The Nehor said:

Elder Bednar’s comments about alcohol being essential ignore the obvious problem that in many ways they literally are a public health concern.

His point was that "services related to alcohol, animals and marijuana as essential, while the services of religious organizations were classified as nonessential, even when those activities could be safely conducted" (emphasis added).

33 minutes ago, The Nehor said:

For casual drinkers it is not a problem but cutting off a bunch of alcoholics cold turkey could lead to all kinds of disasters. The ER rooms couldn’t cope with a bunch of people detoxing on top of covid. There is also a possibility of even larger increases in domestic abuse.

There could have been deleterious effects from prohibiting people from exercising their religious beliefs, too.

33 minutes ago, The Nehor said:

I am a little weirded out by Elder Bednar saying animal services are frivolous.  Keeping a beloved pet healthy is not frivolous, especially when a child is in lockdown.

He didn't say that.

33 minutes ago, The Nehor said:

Marijuana is kind of “meh” but I am not sure if he is talking about medically prescribed weed or not.

I also think Elder Bednar was overly optimistic by saying that services could be safely conducted. They couldn’t be.

That's something of a judgment call.

Thanks,

-Smac

[The Nehor]

2 hours ago, smac97 said:

He didn't say that.

He implied it. Putting animal services with alcohol and marijuana wasn’t a random sampling of services. He deliberately chose 2 of the 3 that church members would specifically assume are unnecessary and even borderline sinful depending on if the saint in question got the memo on who the Word of Wisdom applies to.

[smac97]

1 minute ago, The Nehor said:

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I am a little weirded out by Elder Bednar saying animal services are frivolous.  Keeping a beloved pet healthy is not frivolous, especially when a child is in lockdown.

He didn't say that.

He implied it.

I don't think he did.  His point was about government discounting the importance of religious observance/liberty.  That the government had deemed "services related to alcohol, animals and marijuana as essential, while the services of religious organizations were classified as nonessential, even when those activities could be safely conducted" (emphasis added).

1 minute ago, The Nehor said:

Putting animal services with alcohol and marijuana wasn’t a random sampling of services.

I agree.  The government did not impose on these things, while it did impose on religious liberty.  The government deemed these things "essential," but did not deem religious observance essential.

1 minute ago, The Nehor said:

He deliberately chose 2 of the 3 that church members would specifically assume are unnecessary and even borderline sinful depending on if the saint in question got the memo on who the Word of Wisdom applies to.

Meh.  This is sheer speculation on your part.

The government picked  and chose.  It selected some favored things to be deemed "essential," and other less-than-favored things to be non-essential.

The Bill of Rights has nothing to say about pets, booze or MJ.  Free Exercise, however, is very much front and center.

People who care about religious liberty need to be vigilant regarding the protection of it, else it will be incrementally eroded and undermined.  Sometimes by government apparatchiks who hold it low regard.

Thanks,

-Smac

[carbon dioxide]

Religious rights have boundaries.  A person does not have the right to blow up people in the name of their religion.   Liberty in my mind suggests that we can do whatever we want as long as it does not infringe on the rights or liberty of another. 

[LoudmouthMormon]

Here's the video:

 

[LoudmouthMormon]

7 hours ago, SeekingUnderstanding said:

I for one was pleased to see all four Utah congressional reps vote to codify both interracial and same sex marriages. Both of which have been looked down on from a Latter-day Saint perspective. 

There are 6 total LDS house members, all with an R next to their name.  Five of the six voted in favor of the bill:

N - Andy Biggs - AZ
Y - Mike Simpson - ID
Y - Blake Moore - UT
Y - Chris Stewart - UT
Y - John Curtis - UT
Y - Burgess Owens - UT
 

[The Nehor]

2 hours ago, smac97 said:

I don't think he did.  His point was about government discounting the importance of religious observance/liberty.  That the government had deemed "services related to alcohol, animals and marijuana as essential, while the services of religious organizations were classified as nonessential, even when those activities could be safely conducted" (emphasis added).

I agree.  The government did not impose on these things, while it did impose on religious liberty.  The government deemed these things "essential," but did not deem religious observance essential.

Meh.  This is sheer speculation on your part.

The government picked  and chose.  It selected some favored things to be deemed "essential," and other less-than-favored things to be non-essential.

The Bill of Rights has nothing to say about pets, booze or MJ.  Free Exercise, however, is very much front and center.

People who care about religious liberty need to be vigilant regarding the protection of it, else it will be incrementally eroded and undermined.  Sometimes by government apparatchiks who hold it low regard.

Thanks,

-Smac

Well, at least we can rest assured that the government did the right thing in many jurisdictions as the apostles of the Lord shut services down in most areas before there was any legal mandate to shut down and was slower to resume than legally required in most areas.

Or does being called “nonessential” hurt our feelings or something?

[smac97]

14 hours ago, The Nehor said:

Well, at least we can rest assured that the government did the right thing in many jurisdictions

There were a number of impositions on civil liberties the "right{ness}" of which was dubious.  Lots of arbitrary decisions.  Lots of unprincipled decisions.  Lots of favoritism.

14 hours ago, The Nehor said:

as the apostles of the Lord shut services down in most areas before there was any legal mandate to shut down and was slower to resume than legally required in most areas.

I give the Brethren considerable latitude to administer the affairs of the Church.  

I am considerably more attuned to resisting authoritarian overreaches, arbitrary and biased decisionmaking, impositions on civil liberties, etc. by civil leaders.

14 hours ago, The Nehor said:

Or does being called “nonessential” hurt our feelings or something?

"Being called 'nonessential'" was the (in my mind pretextual) basis for infringing on constitutional rights.

Thanks,

-Smac

[pogi]

23 hours ago, smac97 said:

Religious rights ‘cannot be absolute,’ LDS apostle Dallin Oaks says, in call for a global movement

I really like this.  I am grateful that Pres. Oaks is bringing his legal training to bear on the interplay between government and religious liberty, and that he is publicly acknowledging that governments can legitimately circumscribe religious rights in some circumstances.

I really like this too.

The following are almost verbatim arguments that I made during the pandemic shutdowns:

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“religious rights cannot be absolute.”

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“government must sometimes limit the rights of some to act upon their beliefs when doing so is necessary to protect the health, safety and welfare of all.”

It seems that President Oaks agrees that there are legitimate times and reasons to limit religious liberties when the "health" (as one example he gives) of the public is at risk.  

[pogi]

1 hour ago, smac97 said:

"Being called 'nonessential'" was the (in my mind pretextual) basis for infringing on constitutional rights.

So if they used language other than "nonessential", would you have been ok with it?  

Edited July 22, 2022 by pogi

[The Nehor]

22 minutes ago, smac97 said:

There were a number of impositions on civil liberties the "right{ness}" of which was dubious.  Lots of arbitrary decisions.  Lots of unprincipled decisions.  Lots of favoritism.

I give the Brethren considerable latitude to administer the affairs of the Church.  

I am considerably more attuned to resisting authoritarian overreaches, arbitrary and biased decisionmaking, impositions on civil liberties, etc. by civil leaders.

Of course there were. Most not out of malice but out of the need to move quickly. Pandemic response in the past has shown that “he who hesitates is lost”. There isn’t time to develop the perfect response. You have to act on imperfect information and move quickly.

If the administration had used the pandemic playbook the GWB administration had put together and that was revised in the Obama administration along with a pandemic team on staff that was fired as wasteful later on it wouldn’t have been such a mess. I think you too easily ascribe to malice what is more easily ascribed to a need to rush.

27 minutes ago, smac97 said:

"Being called 'nonessential'" was the (in my mind pretextual) basis for infringing on constitutional rights.

Which didn’t happen. I am in a state where many religious leaders defied the lockdown with the governor’s semi-tacit approval and we reaped the whirlwind.

The idea that the government was looking for a pretext to keep religious services shut down for some nefarious purpose is a silly conspiracy theory. The idea that the current Supreme Court is going to allow the dismantling of religious protections is just paranoia.

[ksfisher]

1 hour ago, The Nehor said:

The idea that the government was looking for a pretext to keep religious services shut down for some nefarious purpose is a silly conspiracy theory.

I think many felt that government listened to businesses and allowed them to reopen (or stay open) sooner than they listened to churches. 

Near my work there was a swimming pool supply business that remained open for the entire lock down.  Essential?  Another that sells vacuum cleaners that remained open.  Again I'm guessing it must have been deemed essential.

[The Nehor]

23 minutes ago, ksfisher said:

I think many felt that government listened to businesses and allowed them to reopen (or stay open) sooner than they listened to churches. 

Near my work there was a swimming pool supply business that remained open for the entire lock down.  Essential?  Another that sells vacuum cleaners that remained open.  Again I'm guessing it must have been deemed essential.

Are you angry that the government didn’t explicitly define essential? Angry that the police didn’t go into these stores and arrest everyone for violating the law? Wish that we had an ongoing business census with a government bureaucracy that adjudicates whether a business is essential that is updated annually just in case we have to have a pandemic shutdown?

What is your solution? Saying people overestimated how vital some businesses are is not in dispute and showing that people cheated it is not exactly a bombshell reveal. It is whataboutism. The government shouldn’t tell churches to shut down unless they could be 100% sure that every business open is essential? Really?

[smac97]

1 hour ago, The Nehor said:

Of course there were. Most not out of malice but out of the need to move quickly.

I'm not sure we need to wait until malice is in play.  Governmental actors acting in substantial disregard of fundamental constitutional rights is enough to warrant objection and circumspection.  I think that is what Elder Bednar was aiming at.

1 hour ago, The Nehor said:

Pandemic response in the past has shown that “he who hesitates is lost”. There isn’t time to develop the perfect response. You have to act on imperfect information and move quickly.

I think Elder Bednar was saying something similar.  He was cautioning against the infringements on civil liberties the next time this comes around.

1 hour ago, The Nehor said:

Quote

"Being called 'nonessential'" was the (in my mind pretextual) basis for infringing on constitutional rights.

Which didn’t happen. 

I'm prett sure it did.

See, e.g., here:

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Governments have state and federal constitutional obligations to respect the free exercise of religion. While many states and localities have worked to impose the least burdensome restrictions on houses of worship, others imposed unjust burdens on religion not felt by secular entities. 

And here:

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In the age of COVID, governments across the United States have responded to a pandemic by passing stringent restrictions on personal freedoms, including gathering together for religious worship. Notably, the Supreme Court has indicated that New York and California have passed discriminatory COVID-19 limitations on religious worship that are likely to fail strict scrutiny.

In New York, the Supreme Court granted a temporary injunction against the state’s “severe restrictions on attendance at religious services in areas classified as ‘red’ or ‘orange’ zones.”¹⁹ Those restrictions “single[d] out houses of worship for especially harsh treatment.”²⁰ For instance, a synagogue or church in a red zone was limited to 10 worshippers, while “businesses categorized as ‘essential’ may admit as many people as they wish”—with “essential” businesses including “acupuncture facilities, camp grounds, garages, … plants manufacturing chemicals and microelectronics[,] and all transportation facilities.”²¹ And in orange zones, even “non-essential” businesses could “decide for themselves how many persons to admit,” while churches were limited to 25 persons.²² The Court did not see this as equal, neutral treatment toward religion.

The Court was even harsher in granting an injunction against California’s prohibition on all indoor worship services, which several Justices characterized as “obviously target[ing] religion for differential treatment.”²³ The Justices noted that California did not place similar unyielding restrictions on “businesses the State allows to remain open,” where “scores” of people “might pack into train stations or wait in long checkout lines,” where “no one is barred from lingering in shopping malls, salons, or bus terminals,” and where hairstylists and manicurists are permitted to touch customers and remain “in “close physical proximity” for “extended periods.”²⁴ In comparison, worshippers who “may seek only to pray in solitude, go to confession, or study in small groups” are flatly prohibited from doing so indoors.²⁵ California’s severe rule would fail strict scrutiny because the state did not try to “narrowly tailor” the rule by merely “limiting the number of people who may gather at one time” or by using other “narrower options” that were “adequate in many secular settings—such as social distancing requirements, masks, cleaning, [and] plexiglass barriers.”²⁶

And here:

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Supreme Court Justice Samuel Alito ignited a controversy recently when he gave a speech to the conservative legal group, the Federalist Society. He argued that religious liberty is under serious threat from Covid-19 restrictions and the Court’s failure to protect worship services.
...
Do severe limitations on gathering for worship threaten religious freedom? Are houses of worship victims of discrimination if the restrictions on them are greater than restrictions on casinos and bowling alleys?

 

Alito’s speech was in response to a recent Supreme Court case, Calvary Chapel v. Sisolak. Nevada Governor Steve Sisolak, issued an order restricting houses of worship from holding services with more than fifty people, even if their building has a capacity for several hundred people. However, the order allowed Casinos to operate at fifty percent capacity, which means that thousands of people can be in a large casino at any one time. The Calvary Church can fit its entire congregation in its building, even at fifty percent capacity, with enough room for six feet between worshipers. So if houses of worship were treated the same way as Casinos, the Calvary congregants could all gather for services.

Calvary Chapel sought an order from the Supreme Court blocking the Governor’s restrictions. A bare majority of five Justices voted to deny the request without issuing any sort of explanation. Four of the more conservative Justices wrote or joined lengthy dissents.

Reasonable people can disagree on the wisdom of the governor’s order. Calvary argues that it will obey all rules on mask-wearing, social distancing, wiping down pews, and so forth, while excited people crowded around a casino blackjack table drinking alcohol pose a far greater risk of spreading Covid. And gamblers tend to come from out of state and go to a lot of different casinos, creating a severe danger of spreading Covid. Nevada counters that casinos are heavily regulated and are more likely than houses of worship to comply with public health regulations. Nevada also points out that Calvary and other houses of worship can accommodate all their congregants by holding more services.

To be fair, there are a lot of jobs at stake in the Nevada casino industry and that is a perfectly reasonable concern for elected officials. However, the Supreme Court’s duty is to preserve constitutional rights such as religious freedom. There is no question that houses of worship are being treated differently from other places where people gather. When a law regulating religion is not “generally applicable” to society as a whole, the Court is supposed to strike it down unless it is narrowly tailored to further a compelling government interest. This is called “strict scrutiny”. It is no defense to say that houses of worship can just double the number of services. Imagine if the government put a limit on newspaper circulation per issue, and argued that papers could just double the number of issues that they print.

The governor of Nevada has good reasons for his actions. As noted, Nevada is heavily dependent upon the casino industry and it makes sense that he would bend over backward to allow casinos to operate at the greatest capacity possible. But the Supreme Court cannot elevate economics over constitutional rights. Telling Calvary’s congregants that they cannot all gather together for worship clearly infringes upon their religious freedom. If the order is necessary for public health, then the state can constitutionally impose it anyway. But if the state’s position is that casinos can safely operate at fifty percent capacity then the doctrine of strict scrutiny means that the Supreme Court should demand a clear and compelling explanation for why the same is not true of worship services. The broad assertion that casinos are heavily regulated falls far short of this standard.

And here:

Quote

But as the lockdown continued, and marijuana dispensaries and liquor stores were deemed essential services while many churches were not, many people of faith said the closures infringed on the right to the free exercise of religion.

Religious groups became ever more angry when protests following the death of George Floyd — some of which quickly turned to riots where demonstrators burned churches, vandalized businesses and looted — were allowed to assemble with little to no social distancing and spotty mask-wearing.

This juxtaposition exposes the double standard by which some First Amendment rights are protected more than others.

As restrictions started to lift in May, many churches in California, including my own, reopened while still taking safety precautions. For instance, my church outside Los Angeles required attendees to make online reservations to attend in-person services. Other churches in the area checked temperatures, required mask wearing, practiced social distancing and provided outdoor venues.

But in early July, California banned singing, mandating, “Places of worship … discontinue indoor singing and chanting activities and limit indoor attendance to 25% of building capacity or a maximum of 100 attendees, whichever is lower.” Yet the state did not place the same restrictions on protests, as if thousands shouting at protests, albeit outdoors, but with minimal social distancing and irregular use of masks would prove less risky.

...

For many who may not have a faith, attending church at home may seem no different than attending in person, since songs, sermon, prayer all remain — although virtually. But just as a protest can’t occur over Zoom, churches also require community and gathering together, as the Church is not a building, it’s a body of worshippers.

Churches are also essential to the health of our local communities, especially as we witness unrest, anger and need. A 2016 Duke University study found 83% of church congregations contribute to some social or human services to help those outside of their own congregation. These charitable efforts have only continued during the pandemic. A Christian organization, Samaritan’s Purse, even set up an emergency hospital in New York City's Central Park.

Keeping churches closed misdiagnoses the deeper problems within society. Free assembly and the right to exercise religion is why America was founded in the first place. As Gorsuch said, this is a simple case.

Churches are essential and we need them free to open now. 

 

1 hour ago, The Nehor said:

I am in a state where many religious leaders defied the lockdown with the governor’s semi-tacit approval and we reaped the whirlwind.

I don't dispute that.

https://www.nytimes.com/2020/07/08/us/coronavirus-churches-outbreaks.html

https://www.washingtonpost.com/outlook/2020/05/13/churches-have-been-astonishingly-hypocritical-during-pandemic/

https://www.latimes.com/california/story/2020-04-02/pentecostal-church-in-sacramento-linked-to-dozens-of-coronavirus-cases

Not much attention, though, paid to how significant a role casinos, mass protests, etc. See, e.g., here:

Quote

Suddenly, Public Health Officials Say Social Justice Matters More Than Social Distance

For months, health experts told Americans to stay home. Now, many are encouraging the public to join mass protests.

Yeah, those "experts" really injured their credibility by subordinating medicine/science to political activism/messaging.

And government actors went along for the ride by allowing these protests to proceed.

Quote

For months, public health experts have urged Americans to take every precaution to stop the spread of Covid-19—stay at home, steer clear of friends and extended family, and absolutely avoid large gatherings.

Now some of those experts are broadcasting a new message: It’s time to get out of the house and join the mass protests against racism.

“We should always evaluate the risks and benefits of efforts to control the virus,” Jennifer Nuzzo, a Johns Hopkins epidemiologist, tweeted on Tuesday. “In this moment the public health risks of not protesting to demand an end to systemic racism greatly exceed the harms of the virus.”

 

So disregarding COVID mass gathering protocols is acceptable for protests about "systemic racism," but not for religious gatherings.

Got it.  Follow the science, proles!

Quote

“The injustice that’s evident to everyone right now needs to be addressed,” Abraar Karan, a Brigham and Women’s Hospital physician who’s exhorted coronavirus experts to amplify the protests’ anti-racist message, told me. “While I have voiced concerns that protests risk creating more outbreaks, the status quo wasn’t going to stop #covid19 either,” he wrote on Twitter this week.

 

It’s a message echoed by media outlets and some of the most prominent public health experts in America, like former Centers for Disease Control and Prevention director Tom Frieden, who loudly warned against efforts to rush reopening but is now supportive of mass protests. Their claim: If we don’t address racial inequality, it’ll be that much harder to fight Covid-19. There’s also evidence that the virus doesn’t spread easily outdoors, especially if people wear masks.

 

Right.  Disregarding COVID mass gathering protocols is acceptable for protests because "racial inequality," or something.

But not for religoius gatherings.

 

Quote

 

The experts maintain that their messages are consistent—that they were always flexible on Americans going outside, that they want protesters to take precautions and that they’re prioritizing public health by demanding an urgent fix to systemic racism.

But their messages are also confounding to many who spent the spring strictly isolated on the advice of health officials, only to hear that the need might not be so absolute after all. It’s particularly nettlesome to conservative skeptics of the all-or-nothing approach to lockdown, who point out that many of those same public health experts—a group that tends to skew liberal—widely criticized activists who held largely outdoor protests against lockdowns in April and May, accusing demonstrators of posing a public health danger. Conservatives, who felt their own concerns about long-term economic damage or even mental health costs of lockdown were brushed aside just days or weeks ago, are increasingly asking whether these public health experts are letting their politics sway their health care recommendations.

“Their rules appear ideologically driven as people can only gather for purposes deemed important by the elite central planners,” Brian Blase, who worked on health policy for the Trump administration, told me, an echo of complaints raised by prominent conservative commentators like J.D. Vance and Tim Carney.

 

 

"{A}sking whether these public health experts are letting their politics sway their health care recommendations."

 

Sam goes for political actors.

 

Quote

 

Some members of the medical community acknowledged they’re grappling with the U-turn in public health advice, too. “It makes it clear that all along there were trade-offs between details of lockdowns and social distancing and other factors that the experts previously discounted and have now decided to reconsider and rebalance,” said Jeffrey Flier, the former dean of Harvard Medical School. Flier pointed out that the protesters were also engaging in behaviors, like loud singing in close proximity, which CDC has repeatedly suggested could be linked to spreading the virus.

“At least for me, the sudden change in views of the danger of mass gatherings has been disorienting, and I suspect it has been for many Americans,” he told me.

 

Singing in a religious gathering: Nope!

Singing in a protest: Yep!

"Disorienting," to say the least.

 

Quote

 

The shift in experts’ tone is setting up a confrontation amid the backdrop of a still-raging pandemic. Tens of thousands of new coronavirus cases continue to be diagnosed every day—and public health experts acknowledge that more will likely come from the mass gatherings, sparked by the protests over George Floyd’s death while in custody of the Minneapolis police last week.

“It is a challenge,” Howard Koh, who served as assistant secretary for health during the Obama administration, told me. Koh said he supports the protests but acknowledges that Covid-19 can be rapidly, silently spread. “We know that a low-risk area today can become a high-risk area tomorrow,” he said.

Yet many say the protests are worth the risk of a possible Covid-19 surge, including hundreds of public health workers who signed an open letter this week that sought to distinguish the new anti-racist protests “from the response to white protesters resisting stay-home orders.”

Those protests against stay-at-home orders “not only oppose public health interventions, but are also rooted in white nationalism and run contrary to respect for Black lives,” according to the letter’s nearly 1,300 signatories. “Protests against systemic racism, which fosters the disproportionate burden of COVID-19 on Black communities and also perpetuates police violence, must be supported.”

“Staying at home, social distancing, and public masking are effective at minimizing the spread of COVID-19,” the letter signers add. “However, as public health advocates, we do not condemn these gatherings as risky for COVID-19 transmission.”

 

So whether a protest constitutes a public health threat depends on . . . the skin color and opinions of the protesters.

Got it.

Quote

Was it fair to decry conservatives’ protests about the economy while supporting these new protests? And if tens of thousands of people get sick from Covid-19 as a result of these mass gatherings against racism, is that an acceptable trade-off? Those are questions that a half-dozen coronavirus experts who said they support the protests declined to directly answer.

"Experts . . . declined to directly answer."

 

Quote

 

“I don’t know if it’s really for me to comment,” said Karan. He did add: “Addressing racism, it can’t wait. It should’ve happened before Covid. It’s happening now. Perhaps this is our time to change things.”

“Many public health experts have already severely undermined the power and influence of their prior message,” countered Flier. “We were exposed to continuous daily Covid death counts, and infections/deaths were presented as preeminent concerns compared to all other considerations—until nine days ago,” he added.

“Overnight, behaviors seen as dangerous and immoral seemingly became permissible due to a ‘greater need,’” Flier said.

 

Yep.

1 hour ago, The Nehor said:

The idea that the government was looking for a pretext to keep religious services shut down for some nefarious purpose is a silly conspiracy theory.

I didn't say that.

Unequal treatment under the law.

Spurious justifications for unequal treatment. 

Substantial and unique burdens imposed on religious gatherings that were not imposed on other gatherings.

1 hour ago, The Nehor said:

The idea that the current Supreme Court is going to allow the dismantling of religious protections is just paranoia.

I think our system of government operates better when we work with elected representatives, particularly at the state level, to address these sorts of issues.

I'd rather have to resort to reliance on SCOTUS as little as possible.

Thanks,

-Smac

[smac97]

2 hours ago, pogi said:

Quote

"Being called 'nonessential'" was the (in my mind pretextual) basis for infringing on constitutional rights.

So if they used language other than "nonessential", would you have been ok with it?  

The language used when applying the law matters.  A lot.

Designating some gatherings as "essential," and others as "nonessential," is not a matter of hurt feelings or mere semantics.  It was, and is, an important facet of how the law applies.

Thanks,

-Smac

[smac97]

2 hours ago, pogi said:

 

Quote

 

Religious rights ‘cannot be absolute,’ LDS apostle Dallin Oaks says, in call for a global movement

I really like this.  I am grateful that Pres. Oaks is bringing his legal training to bear on the interplay between government and religious liberty, and that he is publicly acknowledging that governments can legitimately circumscribe religious rights in some circumstances.

 

I really like this too.

The following are almost verbatim arguments that I made during the pandemic shutdowns:

Quote

“religious rights cannot be absolute.”

“government must sometimes limit the rights of some to act upon their beliefs when doing so is necessary to protect the health, safety and welfare of all.”

 

And similar to what the Becket Fund said here:

Quote

Americans possess fundamental rights to freely exercise their religion and assemble when doing so. Those rights have always been limited by what is necessary to protect public safety. In the context of a pandemic, this can mean that the government can temporarily limit communal worship and religious exercise if truly necessary, so long as it does so on equal terms with other activities, showing no special disfavor to religion.
...
Governments have state and federal constitutional obligations to respect the free exercise of religion. While many states and localities have worked to impose the least burdensome restrictions on houses of worship, others imposed unjust burdens on religion not felt by secular entities. 

I think the foregoing reflects both A) Pres. Oaks' acknowledgment that religious liberty is not absolute, and B) Elder Bednar's concerns that religous gatherings received unequal treatment during the lockdowns.

I don't see A and B as being in conflict.

2 hours ago, pogi said:

It seems that President Oaks agrees that there are legitimate times and reasons to limit religious liberties when the "health" (as one example he gives) of the public is at risk.  

I'm reasonably confident that Elder Bednar feels that way as well.

Thanks,

-Smac

[The Nehor]

15 minutes ago, smac97 said:

I'm not sure we need to wait until malice is in play.  Governmental actors acting in substantial disregard of fundamental constitutional rights is enough to warrant objection and circumspection.  I think that is what Elder Bednar was aiming at.

I think Elder Bednar was saying something similar.  He was cautioning against the infringements on civil liberties the next time this comes around.

I'm prett sure it did.

See, e.g., here:

And here:

And here:

And here:

 

I don't dispute that.

https://www.nytimes.com/2020/07/08/us/coronavirus-churches-outbreaks.html

https://www.washingtonpost.com/outlook/2020/05/13/churches-have-been-astonishingly-hypocritical-during-pandemic/

https://www.latimes.com/california/story/2020-04-02/pentecostal-church-in-sacramento-linked-to-dozens-of-coronavirus-cases

Not much attention, though, paid to how significant a role casinos, mass protests, etc. See, e.g., here:

Yeah, those "experts" really injured their credibility by subordinating medicine/science to political activism/messaging.

And government actors went along for the ride by allowing these protests to proceed.

So disregarding COVID mass gathering protocols is acceptable for protests about "systemic racism," but not for religious gatherings.

Got it.  Follow the science, proles!

Right.  Disregarding COVID mass gathering protocols is acceptable for protests because "racial inequality," or something.

But not for religoius gatherings.

 

 

"{A}sking whether these public health experts are letting their politics sway their health care recommendations."

 

Sam goes for political actors.

 

Singing in a religious gathering: Nope!

Singing in a protest: Yep!

"Disorienting," to say the least.

 

So whether a protest constitutes a public health threat depends on . . . the skin color and opinions of the protesters.

Got it.

"Experts . . . declined to directly answer."

 

Yep.

I didn't say that.

Unequal treatment under the law.

Spurious justifications for unequal treatment. 

Substantial and unique burdens imposed on religious gatherings that were not imposed on other gatherings.

I think our system of government operates better when we work with elected representatives, particularly at the state level, to address these sorts of issues.

I'd rather have to resort to reliance on SCOTUS as little as possible.

Thanks,

-Smac

Oh goodie, more whataboutism.

[smac97]

27 minutes ago, The Nehor said:

Oh goodie, more whataboutism.

Equal Protection.  Due Process.  Free Exercise.  

Constitutional analysis often involves analogy and comparison.

Thanks,

-Smac

[pogi]

4 hours ago, smac97 said:

The language used when applying the law matters.  A lot.

Designating some gatherings as "essential," and others as "nonessential," is not a matter of hurt feelings or mere semantics.  It was, and is, an important facet of how the law applies.

Thanks,

-Smac

I understand you feel that way about language, but my question was would it have changed things for you if they used different language, or defined their language differently?

For example, if "essential", as opposed to "nonessential", was broadly defined as groups (food, medicine, etc.) of entities which could not endure temporary shutdowns without significantly placing the lives of others at risk.  Would you have been ok with leaving out religious gatherings (and thus categorizing them as nonessential) under that definition of essential?

What language would you use to distinguish religious gatherings from other essential entities that could not endure shutdowns without significant disruption and risk to life of the public?  Where should those lines be drawn?  Is there any reasonable chance in heck that every entity is going to feel that equality and equity has been served in such a situation where decisions need to be made as to who to shut down?  How do we prevent precious lost time from arguments and legal battles where the immediacy of action is needed during a deadly pandemic?  

I am trying to get a reading on what parameters or conditions shutting down religious gatherings would have been ok for you.

There seems to be a concern of "unequal treatment", so I am wondering what equal treatment should look like if another pandemic were to happen again.  And if unequal treatment does happen (or is even perceived to have happened) during a deadly pandemic, is it more moral to argue for loosening of restrictions for those who feel unequally burdened (even though temporary shut-down is not a risk to life of the public), or would it be more moral to argue for a tightening of restrictions for those entities who are a risk to the public but don't have equal restrictions to other entities and serve no essential (as defined above) purpose, in order to bring things into balance. 

 

Edited July 22, 2022 by pogi