6 ms·

As we know, rights are not absolute. US law has developed such that commercial activities, including commercial speech can be subject to more limitations than

As we know, rights are not absolute. US law has developed such that commercial activities, including commercial speech can be subject to more limitations than non-commercial activities. Also, US law has also generally held that political and religious activities are the most protected. This doesn't mean that anything goes, it is just that the government needs a really good reason to interfere. If Covid-19 rules restrict religious practices more than some commercial activities I think we have a problem. I feel the emergency stay should be left in place because the state is not equipped to measure the amount of irreparable harm that may be caused by interfering in an otherwise legal religious practice.

gumby 6y ago
> If Covid-19 rules restrict religious practices more than some commercial activities I think we have a problem. Oh come on. It's OK to pick and choose which activities are more important than a health rule -- a doctor or a plumber clearly should be permitted to perform some necessary activities or life would be at greater risk. And the law parses apart the cases: you can get respiratory care or chemotherapy but not plastic surgery. The plumber can fix a backed up sewer pipe but (for a while) not do new construction, etc. Perhaps your note was accidentally misworded. If they restrict religious practices that are physically identical to commercial activities that are not restricted then we would have a problem. If concerts were allowed but not churches that would be a problem. If outdoor concerts were allowed but not indoor ones, then outdoor religious congregation should be allowed even if indoor equivalent is not. Etc. But nobody, including the plaintiffs, is making that assertion.
- pnw_hazor 6y ago
  The problem arises because the government is not supposed to judge the merit, efficacy, or importance/value of a otherwise lawful religious practice. The government needs a neutral independent reason that withstands strict scrutiny to regulate religion. For example, building fire codes can apply to religious buildings. But many zoning ordinances have to exempt religious buildings. Here the government is saying some commercial activities, like grocery stores are more important than going to church. The SCOTUS order is side-stepping the issue by trying to categorize religious practice as similar to going to see a movie. It would be interesting to see how the court would have ruled on an appeal of a fully developed case. Here, since they are evaluating an emergency stay order, rather than a fully developed case, I think they were comfortable cutting some corners.
  - ryandrake 6y ago
    If the governments were smart, they would not pick and choose specific activities and industries to allow and disallow, but instead simply prohibited closely packed or indoor gatherings (by whatever measurement of "closely-packed" makes epidemiological sense) and left it at that. That way, if a church wanted to stay in service they could simply figure out how to comply, like by doing it outside and 2 meters between people. But no, governments instead editorialized and said these kinds of businesses are cool and these aren't, turning it into a politically charged value judgment of this industry vs that activity.
    - pnw_hazor 6y ago
      Agreed. They could have made a blanket rule that set a base standard that applied to all business or orgs, including churches, and then stricter targeted rules for particular non-religious organizations if they needed to.
kmonsen 6y ago
Should it not be the side they want the stay that had to prove irreparable harm? I see no evidence for this in the dissenting opinion.
- pnw_hazor 6y ago
  The government can't really measure the harm caused by interfering with otherwise lawful religious practice. You and I can have our opinions but legally it isn't within the power of the government to do so. How could it? What if the interference delays a child's baptism and the child dies during the delay. For some religions this may be an irreparable eternal harm. From the dissent: "As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."" "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. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”" "The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities"
  - kmonsen 6y ago
    "The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities" This is the key to get an emergency stay of the stay at home order until the supreme court can actually handle the case. This is extremely rare. I don't see any evidence here, he is just stating it as a fact when it is clearly not.
    - pnw_hazor 6y ago
      That's the point of the 1st Amd., you do not need to justify your otherwise legal religious practice to the government. This is because one person's grave sin that leads to eternal damnation may be another person's minor inconvenience. The importance or merit of a particular otherwise legal religious practice is not determinable by a US government. For example, the US government is not in the business of interpreting the bible and telling Christians how to practice their religion. The government only goes as far as determining if a person's belief system is a religion (broadly interpreted), and if the religious practice in question is otherwise legal (to exclude obvious overreaches such as child marriage, and such). Plaintiffs do not need to prove a restriction of a religious practice causes irreparable harm because there is no way to prove it, they just declare it. E.g., Prisons have to honor the religious dietary restrictions of inmates. The government can't say it is not important, here eat your ham sandwich like everyone else.

gumby 6y ago

> If Covid-19 rules restrict religious practices more than some commercial activities I think we have a problem. Oh come on. It's OK to pick and choose which activities are more important than a health rule -- a doctor or a plumber clearly should be permitted to perform some necessary activities or life would be at greater risk. And the law parses apart the cases: you can get respiratory care or chemotherapy but not plastic surgery. The plumber can fix a backed up sewer pipe but (for a while) not do new construction, etc. Perhaps your note was accidentally misworded. If they restrict religious practices that are physically identical to commercial activities that are not restricted then we would have a problem. If concerts were allowed but not churches that would be a problem. If outdoor concerts were allowed but not indoor ones, then outdoor religious congregation should be allowed even if indoor equivalent is not. Etc. But nobody, including the plaintiffs, is making that assertion.

pnw_hazor 6y ago
The problem arises because the government is not supposed to judge the merit, efficacy, or importance/value of a otherwise lawful religious practice. The government needs a neutral independent reason that withstands strict scrutiny to regulate religion. For example, building fire codes can apply to religious buildings. But many zoning ordinances have to exempt religious buildings. Here the government is saying some commercial activities, like grocery stores are more important than going to church. The SCOTUS order is side-stepping the issue by trying to categorize religious practice as similar to going to see a movie. It would be interesting to see how the court would have ruled on an appeal of a fully developed case. Here, since they are evaluating an emergency stay order, rather than a fully developed case, I think they were comfortable cutting some corners.
- ryandrake 6y ago
  If the governments were smart, they would not pick and choose specific activities and industries to allow and disallow, but instead simply prohibited closely packed or indoor gatherings (by whatever measurement of "closely-packed" makes epidemiological sense) and left it at that. That way, if a church wanted to stay in service they could simply figure out how to comply, like by doing it outside and 2 meters between people. But no, governments instead editorialized and said these kinds of businesses are cool and these aren't, turning it into a politically charged value judgment of this industry vs that activity.
  - pnw_hazor 6y ago
    Agreed. They could have made a blanket rule that set a base standard that applied to all business or orgs, including churches, and then stricter targeted rules for particular non-religious organizations if they needed to.

kmonsen 6y ago

Should it not be the side they want the stay that had to prove irreparable harm? I see no evidence for this in the dissenting opinion.

pnw_hazor 6y ago
The government can't really measure the harm caused by interfering with otherwise lawful religious practice. You and I can have our opinions but legally it isn't within the power of the government to do so. How could it? What if the interference delays a child's baptism and the child dies during the delay. For some religions this may be an irreparable eternal harm. From the dissent: "As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits."" "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. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”" "The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities"
- kmonsen 6y ago
  "The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities" This is the key to get an emergency stay of the stay at home order until the supreme court can actually handle the case. This is extremely rare. I don't see any evidence here, he is just stating it as a fact when it is clearly not.
  - pnw_hazor 6y ago
    That's the point of the 1st Amd., you do not need to justify your otherwise legal religious practice to the government. This is because one person's grave sin that leads to eternal damnation may be another person's minor inconvenience. The importance or merit of a particular otherwise legal religious practice is not determinable by a US government. For example, the US government is not in the business of interpreting the bible and telling Christians how to practice their religion. The government only goes as far as determining if a person's belief system is a religion (broadly interpreted), and if the religious practice in question is otherwise legal (to exclude obvious overreaches such as child marriage, and such). Plaintiffs do not need to prove a restriction of a religious practice causes irreparable harm because there is no way to prove it, they just declare it. E.g., Prisons have to honor the religious dietary restrictions of inmates. The government can't say it is not important, here eat your ham sandwich like everyone else.