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The only thing that should be surprising about this ruling is the dissent. They can’t cite any applicable case law because there isn’t any. Up until now the Cou

The only thing that should be surprising about this ruling is the dissent. They can’t cite any applicable case law because there isn’t any. Up until now the Court has always treated the states’ (note states and not federal) police power in a pandemic to be near plenary. This is in line with English common law that developed under the shadow of the repeated waves of Bubonic Plague. 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.

gizmo686 6y ago
I too am dissapointed that this ruling was not unanimous, but the majority opinion is not much better. Both opinions seem to agree on the law generally, in that restrictions on places of worship must be no more onerous than restrictions on "comparable" secular activities. 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.
- wbl 6y ago
  Because these are facts not law! As Alito points out he isn't a doctor and he isn't going to second guess them in the middle of a plague.
  - kmonsen 6y ago
    Didn’t he second guess doctors though? There were doctors writing the order but he said it should be overruled. Sorry if I’m misunderstanding, honestly want to understand here. 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.
  - throwlaplace 6y ago
    I agree with your and there's a joke somewhere in here but I can't quite compose it. Something like: One SCJ says to another "I can't decide where to go this Sunday for brunch". Second SCJ responds "you should check to see if there's relevant case law on who makes the best mamosas". First SCJ checks LexisNexus and comes back empty handed and says to the first "guess I'll just go to the church instead".
  - gizmo686 6y ago
    I do not see any statement from Alito, but he voted with the dissent. 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.
    - wbl 6y ago
      Oh good catch!
- kmonsen 6y ago
  Yes, I mentioned this elsewhere as well. They key point is what is a comparable activity. That probably needs to go into law, or can this be used as a precedent later?
- wnoise 6y ago
  Well, yes, because the right answer is so obvious they felt no need to make citations. 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.
- pnw_hazor 6y ago
  The court is letting states decide that religious practice is non-essential or less essential as compared to some selected commercial activities. 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.
  - paulryanrogers 6y ago
    > Interfering with religious practice can cause irreparable harm to persons. It is up to the person and the religion. 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.
    - zaroth 6y ago
      Well it most certainly is a human right. Religious or otherwise. That was actually never up for debate. 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.
      - pnw_hazor 6y ago
        The problem is that the government is saying that grocery shopping is more important than going to church. 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.
        kmonsen 6y ago
        They are still allowed religious service and practice, but in a controlled way that will not spread the virus.
- toast0 6y ago
  How much caselaw would there be on comparison of churches to other venues where people gather? 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.
  - pnw_hazor 6y ago
    Zoning is a big area where churches often are found to have more freedom. The basic argument is that putting arbitrary restrictions on a church is a violation of the 1st Amd. 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.
- pnw_hazor 6y ago
  It would be interesting to see how this case would go with a fully developed case. Here, I appreciate that the SCOTUS is making a hasty and abbreviated ruling here on the emergency stay request. This makes sense practically in view of CA voluntarily reducing some of the earlier restrictions and given the fact that it seems that restrictions will be further reduced in the near future. Thus, there is no need for the SCOTUS to provide a fleshed out opinion absent a fully developed record and full briefing. This order is 6 pages, I imagine it would be 60 pages or more if it actually ripened into a real appeal.
Meekro 6y ago
Whether there is a pandemic or not isn't given great weight by either side. Both sides implicitly agree that California isn't allowed to go out of its way to penalize churches, but they disagree on whether it has done that. 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."
- bradleyjg 6y ago
  You don’t need much in the way of reasoning, or any really, to deny an emergency stay order. The presumption is and should be very much against.
  - kmonsen 6y ago
    That is another good observation that was hard to understand at first to someone very familiar with law (like myself). It would be a very strong action for the supreme court to take action here. The dissent doesn't really say why it would be irreparable damage to keep churches closed a little bit longer.
  - throwawaygh 6y ago
    Sure, but neither side is presuming that emergency orders are (un)constitutional. 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.
onetimemanytime 6y ago
First, I think it's stupid to go to church (and the likes these times). That's my opinion considering the risk, and god should accept your prayers from home. Or "he" should get rid of the virus. That said, the dissent is not without merit: are all businesses limited to 25% occupancy or 100 or less people? If you risk getting /spreading the virus in a religious setting, you risk the same at malls or whatever.
TheBobinator 6y ago
Historically, The states power was plenary is because everyone had first hand observational knowledge of the pandemic; they lost friends, family, acquantences, and so forth. Nobody on the street knew how bad it was at the time until statisticians had time to study records from the time, which to be frank, took decades. 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.
- thephyber 6y ago
  > they are not using language such as "places of worship" or "Religious instutitions" 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.
  - nsajko 6y ago
    > 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_States_Constitution 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...)
treis 6y ago
>They can’t cite any applicable case law 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.
- ineedasername 6y ago
  I'm not sure that is very on point. Secular businesses are something different in gathering type than Church services. And when it comes to gatherings where there would be similar close contact inside with often static groups of people, the Supreme Court majority properly made that comparison: "similar or more severe restrictions apply to lectures, concerts, movie showings, spectator sports, and theatrical performances."
  - treis 6y ago
    But less severe restrictions apply to other things deemed "essential" or that require physical attendance. And that's the crux of the issue. The government can't declare churches "non-essential" and close them.
    - ineedasername 6y ago
      Clearly the government can declare them non-essential, and the highest body that arbitrates such claims has rules that California's implementation of the determination was equitable & constitutional. It is defacto legal, allowed, constitutional. 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.)
jeffdavis 6y ago
Although I happen to agree that, in this case, the order respects the freedom of religion; I also appreciate the dissent. 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.
- bradleyjg 6y ago
  > when something pretty clearly goes against the text of the Constitution 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.
  - jeffdavis 6y ago
    A fair point. But a similar argument could be made about speech and the press. It's at least a little scary.
- dragonwriter 6y ago
  > I'd be disturbed if there was no hint of dissent when something pretty clearly goes against the text of the Constitution. 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.

gizmo686 6y ago

I too am dissapointed that this ruling was not unanimous, but the majority opinion is not much better. Both opinions seem to agree on the law generally, in that restrictions on places of worship must be no more onerous than restrictions on "comparable" secular activities. 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.

wbl 6y ago
Because these are facts not law! As Alito points out he isn't a doctor and he isn't going to second guess them in the middle of a plague.
- kmonsen 6y ago
  Didn’t he second guess doctors though? There were doctors writing the order but he said it should be overruled. Sorry if I’m misunderstanding, honestly want to understand here. 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.
- throwlaplace 6y ago
  I agree with your and there's a joke somewhere in here but I can't quite compose it. Something like: One SCJ says to another "I can't decide where to go this Sunday for brunch". Second SCJ responds "you should check to see if there's relevant case law on who makes the best mamosas". First SCJ checks LexisNexus and comes back empty handed and says to the first "guess I'll just go to the church instead".
- gizmo686 6y ago
  I do not see any statement from Alito, but he voted with the dissent. 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.
  - wbl 6y ago
    Oh good catch!
kmonsen 6y ago
Yes, I mentioned this elsewhere as well. They key point is what is a comparable activity. That probably needs to go into law, or can this be used as a precedent later?
wnoise 6y ago
Well, yes, because the right answer is so obvious they felt no need to make citations. 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.
pnw_hazor 6y ago
The court is letting states decide that religious practice is non-essential or less essential as compared to some selected commercial activities. 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.
- paulryanrogers 6y ago
  > Interfering with religious practice can cause irreparable harm to persons. It is up to the person and the religion. 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.
  - zaroth 6y ago
    Well it most certainly is a human right. Religious or otherwise. That was actually never up for debate. 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.
    - pnw_hazor 6y ago
      The problem is that the government is saying that grocery shopping is more important than going to church. 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.
      - kmonsen 6y ago
        They are still allowed religious service and practice, but in a controlled way that will not spread the virus.
toast0 6y ago
How much caselaw would there be on comparison of churches to other venues where people gather? 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.
- pnw_hazor 6y ago
  Zoning is a big area where churches often are found to have more freedom. The basic argument is that putting arbitrary restrictions on a church is a violation of the 1st Amd. 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.
pnw_hazor 6y ago
It would be interesting to see how this case would go with a fully developed case. Here, I appreciate that the SCOTUS is making a hasty and abbreviated ruling here on the emergency stay request. This makes sense practically in view of CA voluntarily reducing some of the earlier restrictions and given the fact that it seems that restrictions will be further reduced in the near future. Thus, there is no need for the SCOTUS to provide a fleshed out opinion absent a fully developed record and full briefing. This order is 6 pages, I imagine it would be 60 pages or more if it actually ripened into a real appeal.

Meekro 6y ago

Whether there is a pandemic or not isn't given great weight by either side. Both sides implicitly agree that California isn't allowed to go out of its way to penalize churches, but they disagree on whether it has done that. 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."

bradleyjg 6y ago
You don’t need much in the way of reasoning, or any really, to deny an emergency stay order. The presumption is and should be very much against.
- kmonsen 6y ago
  That is another good observation that was hard to understand at first to someone very familiar with law (like myself). It would be a very strong action for the supreme court to take action here. The dissent doesn't really say why it would be irreparable damage to keep churches closed a little bit longer.
- throwawaygh 6y ago
  Sure, but neither side is presuming that emergency orders are (un)constitutional. 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.

onetimemanytime 6y ago

First, I think it's stupid to go to church (and the likes these times). That's my opinion considering the risk, and god should accept your prayers from home. Or "he" should get rid of the virus. That said, the dissent is not without merit: are all businesses limited to 25% occupancy or 100 or less people? If you risk getting /spreading the virus in a religious setting, you risk the same at malls or whatever.

TheBobinator 6y ago

Historically, The states power was plenary is because everyone had first hand observational knowledge of the pandemic; they lost friends, family, acquantences, and so forth. Nobody on the street knew how bad it was at the time until statisticians had time to study records from the time, which to be frank, took decades. 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.

thephyber 6y ago
> they are not using language such as "places of worship" or "Religious instutitions" 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.
- nsajko 6y ago
  > 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_States_Constitution 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...)

treis 6y ago

>They can’t cite any applicable case law 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.

ineedasername 6y ago
I'm not sure that is very on point. Secular businesses are something different in gathering type than Church services. And when it comes to gatherings where there would be similar close contact inside with often static groups of people, the Supreme Court majority properly made that comparison: "similar or more severe restrictions apply to lectures, concerts, movie showings, spectator sports, and theatrical performances."
- treis 6y ago
  But less severe restrictions apply to other things deemed "essential" or that require physical attendance. And that's the crux of the issue. The government can't declare churches "non-essential" and close them.
  - ineedasername 6y ago
    Clearly the government can declare them non-essential, and the highest body that arbitrates such claims has rules that California's implementation of the determination was equitable & constitutional. It is defacto legal, allowed, constitutional. 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.)

jeffdavis 6y ago

Although I happen to agree that, in this case, the order respects the freedom of religion; I also appreciate the dissent. 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.

bradleyjg 6y ago
> when something pretty clearly goes against the text of the Constitution 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.
- jeffdavis 6y ago
  A fair point. But a similar argument could be made about speech and the press. It's at least a little scary.
dragonwriter 6y ago
> I'd be disturbed if there was no hint of dissent when something pretty clearly goes against the text of the Constitution. 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.