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Comment by bradleyjg | Hacker News Reader

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.

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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."

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.

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.

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.

There seems to be some very mild confusion here. An "emergency stay order" doesn't refer to an order to stay home during an emergency. It's a request to the court to ask for the enforcement of the law to be temporarily halted (stayed) for the reason that it will cause immediate or irreparable harm to the moving party (it will injure the religious establishments).

There's no question that such requests are generally Constitutional.

> cannabis dispensaries

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).

There are (or 'were', at the moment) plenty of dispensaries with smoking rooms in the back full of people exhaling their droplets.

The were part is the key here, currently churches have more opportunity to be open (at least in bay area), so that part does not make sense.

If one type of church can be open then why not the other? I acknowledge the risk and wouldn't attend either, but the double standard seems apparent to me.

It isn’t about anyone’s individual risk, but the risk to the entire community, including nonmembers.

I think the isolation is a risk to the community too. We have to allow people some social contact.

https://www.washingtonpost.com/health/2020/05/26/americans-w...

Cannabis is not in any way a church or recognized as a sincere held religious belief by the supreme court I believe if that is what you mean.

Nope, they don't recognize it as anything except a Schedule 1 substance. That's why it's weird that the weed shops are open but we're in here arguing about how those silly religious people should stay home.

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/

Cannabis dispensaries are currently closed except for medical patients (I know, but if a doctor has written a prescription it is hard for the government to say no), and then only for curbside pickup. See here for example: https://www.airfieldsupplyco.com/mmj-recommendations

So churches clearly have more access these days which makes that argument silly.

The dispensary near me (Bay Area) has been open for non-medical non-pickup purchases for weeks. There's a translucent divider and a folding table in front of the counter to create distance, and the iPad menus are gone, but aside from that it seems like business as usual.

Really? Not the ones close to me, but I did not go out of my way to check recently. That does not seem to be essential businesses in my book, or more so than churches assuming proper social distancing rules.

To be fair my sample size is only two (2) establishments :)

> Cannabis dispensaries are currently closed except for medical patients

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.

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.

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.

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.

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.

Oh good catch!

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?

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.

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.

> 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.

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.

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.

They are still allowed religious service and practice, but in a controlled way that will not spread the virus.

The issue is that the government is putting more restrictions on the church than it does grocery stores.

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.

People need food to survive. No one needs religion.

I take issue with that statement. Yes, people need food to survive, and yes, one can survive without religion, but that shouldn’t be the argument. It should be that one can worship from home; one doesn’t need to go to a religious building for worship.

> 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

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.

A US government does not get to tell people how to practice religion beyond making a determination whether the belief system is a religion. And, making a determination if a particular practice is legal (to exclude harms like you mention).

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.

Food > faith

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.)

That hasn’t been decided one way or the other yet. This was just about what would happen while the litigation continues.

Irreparable harm is a fairly flimsy rationale in the context of the shelter in place order. Nearly anything prevent by the order could be construed to cause irreparable harm -- and many are significantly more concrete than suspension of in person religious services, e.g. reduction in non-urgent healthcare.

Not everything is protected by the 1st Amd.

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.

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.

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.

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.

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.

> 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.

> 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...)

> Allah = Christian God = Yahweh

There is no consensus on this, either among Muslims or Trinitarians.

There's no consensus that what's actually worshipped is the same God. But as far as meaning of words go, Allah literally means The God, and Arab Christians use it to refer to the Christian god. There's also no ambiguity that Yahweh specifically is "the god" for both Christians and Muslims.

Don't the all believe in the God of Abraham?

> * "In God We Trust" only became the US motto in 1956, presumably because of the "Red Scare"

stay home, stay safe.

the mask is for their protection, put it on while you're working

> ... the Supreme Court is using the term "church" in their writing ...

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...

>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.

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."

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.

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.)

> The government can't declare churches "non-essential" and close them.

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".

Religious practice is incredibly varied. And unless the rule is "don't be religious," religious people will try to be flexible. Christians have an obligation to gather, but many churches can satisfy that obligation with a 15 minute service, no singing, and ample distancing, if those are the rules.

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.

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.

> 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.

A fair point. But a similar argument could be made about speech and the press. It's at least a little scary.

> 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.

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.

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