Robert's order says that "similar or more severe restrictions apply to lectures, concerts, movie showings, spectator sports, and theatrical performances." He concludes that California is not singling out churches.
Kavanaugh's dissent notes that churches are being treated worse than "factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries."
Both opinions do ultimately agree that emergency orders are, in general, constitutional during a pandemic. And not by presumption, but by an examination of the laws and facts.
That is why neither position makes this a central question: not because it's presumed, but because they both ultimately agree it's not a point of contention.
The point of contention is whether this particular order's treatment of churches is constitutional. Not whether the orders in general are constitutional.
Once both sides agree that the orders are in general constitutional, the argument that churches should be allowed to stay open while some other similar things stay closed now does require an argument.
There's no question that such requests are generally Constitutional.
I’ve never seen a cannabis dispensary where masses of people crowd together and sing spittle into each other’s faces.
Surely when looking at same treatment, you have to consider the differences in exposure. Plus church can feasibly be done remotely, where cannabis dispensing involves some physical transfer (could be mandated to be delivery though, and no singing and reduced capacity could be mandated for church gatherings).
So churches clearly have more access these days which makes that argument silly.
This is not true for San Diego county.
You can't go and browse, but both medical and recreational users can order online and pick it up or have it delivered.
As for the religion of cannabis, there's community, shared culture, ritual consumption of a specially-prepared substance, believers say how much it improves their life, etc. I even used to buy weed from here: http://coachellavalley.church/
https://www.washingtonpost.com/health/2020/05/26/americans-w...
The dispute is what qualifies as comporable. The majority feels that services are comparable to
"theatrical performances, where large groups of people gather in close proximity for extended pe- riods of time", and not
"grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods."
The dissent considers comparable activities to include:
"factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries. "
Neither side cites caselaw for there determination on this crucial fact.
I don't think a state or the US should be allowed to make that determination.
Interfering with religious practice can cause irreparable harm to persons. It is up to the person and the religion.
This is not really something the state can reason about.
Growing up in a Christian home I'd say allowing religious services to continue is more likely to cause harm to people.
Still, it sounds like you think physical religious gatherings are some kind of human right.
The question is that right can only be temporarily, narrowly, and non-discriminately suspended under extraordinary circumstances, and 5-4 agreed that is in fact what has been done.
For me personally, grocery shopping is undeniably more important since I am not religious. But for others being denied access to religious services or practice may be a grave sin that is worse than having to wait in longer lines at the grocery store.
On that note, I am going to go shopping.
If California put the same restrictions on grocery stores, as it did churches they would be more consistent with US law. Otherwise, the government has to prove that the difference in restrictions is so important it outweighs the religious concerns raised by the plaintiffs. (This is a high bar to reach in the US.)
The SCOTUS is being lazy by letting CA characterize a church similarly to a commercial movie theater. That is nonsense. A person can miss a movie without risking eternal damnation, but this may not be true for some church services for some Christians.
Earnest belief has also led to self inflicted wounds, drowning, and hanging others. I don't think religion should get a pass or get preferencial treatment.
That is why I have been careful to describe protected religious practices using the term 'otherwise lawful religious practice'.
The plaintiffs clearly practice a religion. Going to church is clearly a legal religious practice. Thus, the government needs to prove that shorter lines at grocery stores are more important than longer lines or less capacity at churches. The government can't prove that because it can't interpret (or weigh) the importance of going to church.
If you've known any religious people who successfully fasted all food for over a month then you may have seen the evidence for yourself. (Even as a once religious person I found it shocking.)
Religious practices are not supposed to be singled out. That is why a neutral rule that did not exempt grocery stores would be more consistent with US law.
I think the court was being lazy here because the covid rules are temporary rather than permanent. But the government cannot measure the harm that may be caused by missing church. You and I can say it is no big deal, but the government really can't say that without judging the merit/efficacy of the religious practice.
This order is 6 pages, I imagine it would be 60 pages or more if it actually ripened into a real appeal.
What sort of disputes in the past would have revolved around the similarities or differences? Perhaps disputes about zoning or occupancy permits? You don't see a whole lot of that kind of dispute rising through the courts to make a lot of case law.
There is nuance, such as, if the state can prove to a court that a zoning restriction is necessary. For example, a rule against high occupancy buildings in a flood plain, or the like, may be okay. While a rule against off street parking in a residential neighborhood, or the like, may not be enforced against churches.
Generally, US governments get into trouble if they put restrictions on religious institutions that are not absolutely necessary.
Usually they "take judicial notice"; but for some obvious things even invoking those words is skipped, because the fact doesn't even rise to the level of scrutiny.
The position of Roberts (writing for the majority) is that:
> Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,"
Which is to say, even the majority acknlowdges that there are times where the courts should intervene. The question of what a "comparable" secular activity is is very much a legal one.
Edit: I have tried to find what Alito thinks but can’t find any information. He voted to fully reopen churches but did not join the dissenting opinion or wrote his own so I don’t really know what his opinion is.
We're becoming a technological society; most people recieved life-saving information directly from infectious disease experts giving interviews on CNN, Fox, CNBC, and so forth. If you are successful in stopping a pandemic, most people won't know you stopped it, and furthermore, once you have it contained, you have to deal with keeping it contained because unlike spanish flu, you have no herd immunity.
I think just on first hand knowledge alone, most people don't believe there's been a pandemic and they'd be correct in that viewpoint; something else, something very novel, and probably very good for us all, has gone on.
What I find particularily onerous about this ruling is the Supreme Court is using the term "church" in their writing; given, it's a church that's filing the lawsuit, however, they are not using language such as "places of worship" or "Religious instutitions". Do these rules apply to Synagoges and Mosque's? It gives the feeling that if we were dealing with those institutions, an entirely different discussion would be had and that's dangerous given groups of armed protesters are willing to peacefully walk in and occupy government buildings in a show of force.
This seems to be an established practice, though, as in "wall of separation between church and state", or "Neither a state nor the Federal Government can set up a church.". I believe the "church" is used independently from religion, but I hope somebody can confirm that...
You mean like if the USA would change "In God we Trust" to "In God, Yahweh, Allah, Buddah, et al we Trust"? There has long been a bias in the USA towards the predominant religious institution away from the minority ones.
Are you sure that is the case at the federal level? Some states or governors may sometimes do something like you suggest, but I think at least the Supreme Court is more reasonable. Some examples here: https://en.wikipedia.org/wiki/First_Amendment_to_the_United_...
> In God, Yahweh, Allah, Buddah, et al we Trust
Some comments, a bit off topic:
* "In God We Trust" only became the US motto in 1956, presumably because of the "Red Scare"
* Allah = Christian God = Yahweh, so your proposed motto sounds stupid. (Though I think I read somewhere of a theory that the Torah is actually an aggregate work, so that different parts actually speak about different gods, or something like that...)
There is no consensus on this, either among Muslims or Trinitarians.
stay home, stay safe.
the mask is for their protection, put it on while you're working
There's several cases cited in the dissent. Succinctly the argument is:
>“restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Robertsv. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap. California has not shown such a justification.
Which seems on point to me.
Theaters, concerts, and theatrical performances have a harder time changing the product. "Wonder Woman 1984 in 15 Minutes" doesn't sell. Cutting a college lecture down to 20 minutes doubles or triples the number of lectures needed to cover the material.
It seems what you take issue with is the definition of "essential". That's fine: but even if California is allowing businesses that are not truly essential to remain open, that doesn't change whether or not Churches are essential. A mistake by California in one are does not require that it apply the mistake elsewhere. And again: every type of gathering style similar to what would be experiences in churches has also be put on hold. Are you aware of any business that has a similar exposure profile as churches, and is not necessary for normal everyday survival (food etc.) that has been allowed to remain open? (Though even if you are, again such a mistake by California does not require it to double down on that mistake with other such gatherings.)
And indeed, under this current order, they haven't.
They've limited them to min(25% capacity, 100). What's under contention is whether this is treating churches differently than other similarly-situated secular facilities. The two sides come to a disagreement over which other facilities count as "similarly-situated".
I'd be disturbed if there was no hint of dissent when something pretty clearly goes against the text of the Constitution. We should all have a bit of hesitation as this unprecedented stuff is happening, and make sure it's not permanent. Let's remember that this is all not normal, so hopefully we can somewhat get back to normal with our rights intact.
Incorporation isn't clearly in the text of th Constitution, and this is State not Federal action. Even if incorporation were clear in the text, it's not at all clear that failing to exempt religious gatherings from a broader general prohibition would be clearly against the text. It's true that even incidental impacts to important rights from facially-neutral acts are given strict scrutiny under case law, but that application is itself not an unambiguous application of the text and it's far from clear that this would conflict with that precedent.
Did Congress make a respecting an establishment of religion, or prohibiting the free exercise thereof?
These rules may ultimately be ruled unconstitutional but there’s nothing pretty clear about the incorporation doctrine.
Maybe that should change in light of the dramatically changed jurisprudence in so many other areas starting with the New Deal Court, but not in an application for an emergency stay.