Category: reason

Akron, Ohio, police officer John Turnure resigned after the police department began an investigation of him repeatedly shoving snow into the face of a handcuffed man. Turnure and other officers responded after a woman called 911 complaining that Charles Hicks had threatened her with a knife and she feared for the safety of children in her home. When officers arrived and tried to arrest Hicks, he resisted. While other officers pinned Hicks to the ground and handcuffed him, Turnure held his head and forced snow into his face three times.

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When Christians met in each other’s homes for prayer or Bible study, they had to be careful. Such gatherings were illegal, and the organizers never knew who might inform the authorities.

Although that sounds like a scene from the Soviet Union, it actually describes the situation in California under COVID-19 regulations that the Supreme Court blocked last Friday. By issuing an injunction against Gov. Gavin Newsom’s restrictions, the Court reaffirmed that politicians must comply with the Constitution when they decide how to deal with an epidemic.

The main rule at issue in this case limited at-home religious gatherings, whether inside or outside, to people from no more than three households. If two people from different households joined a host for a prayer meeting or Bible study session, for example, no one else was allowed to come.

As the petitioners noted, that limit “does not permit an individual to gather with others in her own backyard to study the Bible, pray, or worship with members of more than two other households, all of which are common (and deeply important) practices of millions of contemporary Christians in the United States.” Meanwhile, California was allowing much larger groups to gather in other settings: inside of stores, barbershops, nail salons, tattoo parlors, movie studios, and (in some counties) restaurants, for example, or outdoors at restaurants, wineries, gyms, movie theaters, zoos, museums, sporting events, concerts, political demonstrations, weddings, and funerals.

The upshot was that Californians could “sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus.” But they were not allowed to “host three people from different households for a Bible study indoors or in their backyards.”

Justice Elena Kagan, who objected to the Supreme Court’s injunction in a dissent joined by Justices Stephen Breyer and Sonia Sotomayor, argued that California’s regulations did not implicate the First Amendment because they were neutral and generally applicable. The state “has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike,” she noted.

The petitioners argued that Newsom’s rules nevertheless amounted to “a subtle but unmistakable religious gerrymander.” Five justices were inclined to agree, saying the plaintiffs were likely to prevail in their claim that the restrictions on private religious meetings violated the First Amendment.

This is not the first time that the Court has called attention to the impact of COVID-19 control measures on religious freedom. It blocked enforcement of New York Gov. Andrew Cuomo’s onerous restrictions on “houses of worship” last November, vacated a decision upholding Colorado’s limits on religious services in December, and reached similar conclusions in four cases involving state and local regulations in California two months later.

By now, the Court said, it should be clear that public health regulations are subject to strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise” and that the relevant consideration is “the risks various activities pose, not the reasons why people gather.” To pass strict scrutiny, a state has to “show that measures less restrictive of the First Amendment activity”—such as face masks, physical distancing, and more generous group limits—”could not address its interest in reducing the spread of COVID.”

Kagan is certainly right, based on the Court’s pre-pandemic precedents, that disease control measures can be constitutional even if they incidentally impinge on religious freedom. But Kagan, Breyer, and Sotomayor always seem willing to accept politicians’ public health judgments, even when they are scientifically dubious, change in the midst of litigation, or result in policies that privilege politically influential industries or explicitly treat religious gatherings as a disfavored category.

At this point, it is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented as necessary for the protection of public health, as such policies always are.

© Copyright 2021 by Creators Syndicate Inc.

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In my home, the router is located on the north side of the first floor. The signal on the south side of the second floor is very inconsistent. Zoom calls are tricky, because at random intervals, the signal drops. I’ve tried different approaches to fix it.

Xfinity, my ISP, sells XFi pods. You plug these pods throughout the house to create something of a mesh network. You are supposed to be able to seamlessly move throughout the network without losing a signal. But these devices created other glitches. Consistently, my phone would connect to one pod, disconnect to another, and then reconnect. It was a constant struggle. I got rid of them.

Then I bought a WiFi range extender. I placed it on the south side of the first floor. The signal became stronger on the second floor, but intermittently cut out. I suspect there is some interference with neighboring networks. (There are about a dozen in my immediate area).

My most recent solution seems to have done the trick: an external USB adapter with a six-antenna. Now I can connect a laptop upstairs to the router downstairs. So far, the signal has not dropped. This device is not practicable for smart phones or tablets, but it works well for a laptop. I keep it plugged into the USB hub, so I can automatically connect to the network when I plug in. This device is also much cheaper than everything else I’ve tried. The adaptor is only $17.

Consistently, students complain about weak wifi signals in different part of their homes. This cheap device may provide a solution.

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Today the Sixth Circuit decided Preterm Cleveland v. McCloud. This case upheld Ohio’s law, which prohibits a doctor from performing an abortion, where the doctor knows that the woman is obtaining an abortion because the unborn child has down syndrome. The Sixth Circuit fractured quite badly. But a majority of the Court agreed that the Ohio law was constitutional under Supreme Court precedent.

Here, I’d like to highlight the concurring opinion from Judge John Bush (beginning on p. 40). He articulates how lower court originalist judges should approach cases of first impression.

First, Judge Bush explains that precedent must be followed “faithfully.” Here he cites an opinion from Judge Pryor:

With these principles in mind, how do we balance our role as lower court judges with our duty to apply the Constitution’s original meaning? First, of course, if a holding of the Supreme Court directly applies to a case, we follow it. Rodriguez, 490 U.S. at 484. In so doing, we cannot apply a “cramped reading” of the precedent that would “functionally overrule” it. Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 814 (6th Cir. 2020). Instead, we must apply precedent “neither narrowly nor liberally—only faithfully.” United States v. Johnson, 921 F.3d 991, 1001 (11th Cir. 2019) (en banc).

Second, where there is no controlling opinion, courts must turn to the original meaning of the Constitution. Here Judge bush cites opinions from Judges Bumatay and Ho, as well as yours truly:

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to “interpret the Constitution in light of its text, structure, and original understanding” takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) (“The Supreme Court’s dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court’s dictum as dispositive.” (emphasis added)). And if it is dubious whether a precedent “is correct as an original matter,” we should “tread carefully before extending” it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) (“[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.”). In such a case, “the rule of law may dictate confining the precedent, rather than extending it further.” NLRB v. Int’l Ass’n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) (“[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.”). 

Third, Judge Bush discussed the original public meaning of the Fourteenth Amendment:

In light of the Supreme Court’s silence on that issue, we must look to the Constitution’s original meaning. And it is clear that there is no bar in the text of the Fourteenth Amendment, as it was understood at its ratification, to the legislative protection of unborn life with Down syndrome. Applied here, the central question for original meaning should be, “[w]hat did the average Joe (or Josephine)” from the ratification generation “understand the words” of the Fourteenth Amendment to mean? Turner v. United States, 885 F.3d 949, 957 (6th Cir. 2018) (Bush, J., concurring dubitante), cert. denied, 139 S. Ct. 2740 (2019). No such average person would have understood the operative phrase—”nor shall any State deprive any person of life, liberty, or property, without due process of law,” U.S. Const. amend. XIV—to create a right to abort a fetus based on its genetic characteristics. New technology that increases knowledge about fetal genetics does not alter the Fourteenth Amendment’s original meaning; it merely creates new challenges for legislation in this area. 

Judge Bush cites the writings of Randy Barnett, Lawrence Solum, Michael McConnell, Nathan Chapman, Will Baude, Evan Bernick, Ilan Wurman, John Harrison, and many other prominent originalists. I encourage everyone to carefully read his opinion.

Fourth, I appreciate that Judge Bush discussed abortion laws from Ohio in the 1860s:

Specific evidence in that regard comes from the very state where this case arose. In February of 1867, a committee of the same Ohio state senators who had voted to ratify the Fourteenth Amendment just one month earlier issued a state Senate report advocating for amendments that would strengthen Ohio’s abortion prohibition in light of an “alarming and increasing frequency” of abortions. 1867 Ohio Senate Journal App’x 233. The report proclaimed that “the willful killing of a human being, at any stage of its existence, is murder.” Id. at 234. And that view was by no means an outlier: there is evidence from many states that the ratification generation did not understand the Fourteenth Amendment to bar abortion restrictions. See, e.g., Casey, 505 U.S. at 952–53 (Rehnquist, C.J., concurring in part and dissenting in part) (demonstrating that a clear majority of states restricted abortion in the Fourteenth Amendment ratification generation). That evidence reinforces the clear showing that the Fourteenth Amendment’s original meaning allows a state to prohibit eugenic abortions.

Fifth, Judge Bush concludes that he will not “extend” a Supreme Court precedent that is inconsistent with original meaning:

That history also raises serious questions as to the correctness of the Supreme Court’s abortion jurisprudence more generally as a matter of the Constitution’s original meaning. See, e.g., Gonzales, 550 U.S. at 169 (Thomas, J., concurring); Stenberg, 530 U.S. at 956 (Scalia, J., dissenting); Casey, 505 U.S. at 952–53 (1992) (Rehnquist, J., concurring in part and dissenting in part). As lower court judges, we should be reluctant to extend that jurisprudence further in the absence of a Supreme Court holding that directs us to do so. 

I will continue to highlight originalism in the lower courts, where judges decline to extend non-originalist precedents. This trend will eventually trickle up to the Supreme Court.

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Today, the New York Times published a lengthy profile of New York Governor Andrew Cuomo. One passage offers an unvarnished view of Cuomo’s animus towards Orthodox Jews.

[Cuomo] could also bridle at the indignity of voter courtship, growing especially irritated about an event celebrating Sukkot, the Jewish harvest holiday when the faithful gather outdoors beneath temporary shelters of branches and greenery. “These people and their fucking tree houses,” Cuomo vented to his team, according to a person who witnessed it and another who was briefed on his comments at the time. (The spokesman denied both incidents, adding: “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.”)

I have five general reactions to this passage. First, I am generally skeptical of anonymous press accounts of Republican politicians. But I take far more seriously negative coverage of Democrats in an institution like the Times. The editors would not slip up on a quote like this. Moreover, the federal courts routinely cited anonymous press accounts about President Trump. Remember the “shithole countries” comment? Under TrumpLaw (which may have expired on January 20), this statement would be fair game to understand Cuomo’s animus. At least for purposes of this post, I will assume the comment is accurate.

Second, a brief background of the holiday. Sukkot, also known as the Feast of  Tabernacles, is celebrated every fall to honor the harvest. During this week-long holiday, Jews eat all of their meals in a tent-like structure, known as a Sukkah. Often, branches are placed over the roofs of these structures. Hence, the “fucking tree houses” comment. Here, Cuomo is mocking and ridiculing one of the most lovely traditions the Jewish people have.

Third, when Cuomo says “these people,” he was almost certainly referring to Orthodox Jews. Orthodox Jews will eat all of their meals in the Sukkah for the entire week. They build Sukkahs in their backyards. In Brooklyn, where space is sparce, Sukkahs are built on balconies. One must be able to see the stars in the Sukkah, so there needs to be a clear line of sight to the sky. In the fall, it can get quite cold in New York. But people persevere. In my experiences, non-Orthodox Jews may build a sukkah near the temple for ceremonial purposes, but they do not actually eat a meal outdoors–especially in the cold. (That was the experience in my reform temple growing up. Correct me if I’m wrong.) I suspect Cuomo was invited to eat in an Orthodox Sukkah in the cold weather, and objected.

Fourth, let’s just switch the facts for a moment. What would happen if Cuomo referred to a group of African Americans as “these people,” and objected to their ceremony in a “fucking tree house.” Does anyone think he would still be in office?

Fifth, the spokesman’s response is all too typical. “His two sisters married Jewish men, and he has the highest respect for Jewish traditions.” This is the anti-Semitic form of “I have lots of Black friends!” This comment proves nothing. One can have a sister who marries a Jew and still have hostility towards Jews. Moreover, both of Cuomo’s sisters married non-Orthodox men, who likely do not eat in “fucking tree houses.”

The Jewish people are not monolithic. As the old saying goes, “Two Jews, Three Opinions.” Today, the divide between Orthodox and non-Orthodox Jews is quite large. I do not think Cuomo has animus towards non-Orthodox Jews. This group votes reliably Democratic, and shares the general values of secular society. Rather, I think Cuomo has animus towards Orthodox Jews. This group votes reliably conservative, and has habits and rituals that clash with secular orthodoxies. Most recently, they were unable to attend worship services on Zoom. Cuomo has long viewed Orthodox Jews in a transactional fashion: a simple voting block that can be negotiated with, the same way as a Union bargaining unit. But now we know what he really thinks about “these people” in “fucking tree houses.”

Cuomo’s “fucking tree people” comment sheds more light on his infamous October 8 press conference. The Second Circuit helpfully summarized his remarks.

Before issuing the Order, the Governor made public statements indicating that the restrictions were motivated in part by concerns about religious gatherings. For example, he noted that the source of the first coronavirus hot spot in New York “was an Orthodox Jewish man who went to a temple” and observed that “Orthodox Jewish gatherings often are very, very large and we’ve seen what one person can do in a group.” The Governor then said that he would be meeting with members of the “ultra-Orthodox [Jewish] community,” and if they would “not agree to enforce the rules, then we’ll close the institutions down.” One day later, he issued the Order. Three days after issuing the Order, the Governor explained that it addresses “a predominantly ultra-orthodox cluster.” Five days later, he said the State was “having issues in the Orthodox Jewish community in New York, where because of their religious practices, . . . we’re seeing a spread.” He said that state-level enforcement was necessary because the “ultra-Orthodox communities . . . are also very politically powerful.

During the Governor’s presentation, he included a slide of “super spreader” events. He included a photograph of Jews wearing black hats in a mass gathering. Cuomo said the photos were “from the past couple weeks.”

But the photos used were not recent. Not even close. One of the photos was from the 2006 funeral of Hassidic rabbi Moshe Teitelbaum. And the photo wasn’t even from New York City. It was taken in the Orange County village of Kiryas Joel, the location of a famous Supreme Court case concerning the Free Exercise Clause. The Governor’s staff simply found a clip art of Jews congregating. The Governor’s spokesperson blamed a “staff error.”

Regrettably, Governor Cuomo played on old, deeply rooted, and painful anti-Semitic tropes: that Jews spread diseases. Throughout the ages, Jewish communities were scapegoated as super-spreaders of “Jewish” diseases, such as the bubonic plague, tuberculosis, and typhus. This stereotype had led to a rash of anti-semitic attacks during a 2019 measles outbreak in New York. Cuomo could also be understood as suggesting that Jews are controlled by their rabbis, and that Jews are outsiders that should be blamed for societal problems. These tropes are pernicious, and harken back to painful times for the Jewish people.

On October 8, I wrote a post titled “Understanding Governor Cuomo’s Hostility Towards Jews.” I explained that Cuomo’s press conference demonstrated hostility towards Orthodox Jewish people. My post was well received in the Orthodox community. I received many emails from people I did not know, who said I articulated how the Orthodox community viewed the then-unstoppable Governor. The reaction from non-Orthodox Jews was very different. They wrote that I did not understand anti-semitism, that Cuomo was a dear friend of the Jews, and that Orthodox Jewish people deserved to be singled out for their failure to abide by COVID protocols.

The “fucking tree house” comment should give my critics some pause. Cuomo is a friend of some Jews, but not all Jews. For what’s worth, the Anti-Defamation League awarded Cuomo the highest honor in June 2020. Yet, As of the close of business, neither ADL nor its President has said a word about Como’s remarks. I will have much more to say about ADL and anti-semitism in due course.

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