Tag: posts

Facebook has already agreed to comply with a demand by the Vietnamese government to censor “anti-state” material. But the government wants the social media company to block even more material, and the company is balking at that demand. So the government is now threatening to ban Facebook if it doesn’t comply with that demand. Facebook reportedly has revenues of almost $1 billion annually in Vietnam.

from Latest – Reason.com https://ift.tt/3lg8ccV
via IFTTT

I have now had some time to digest Roman Catholic Diocese of Brooklyn v. Cuomo. Upon some reflection, the weakest part of the opinion is perhaps the most significant: why was New York’s COVID-19 regime not “neutral”? This analysis very, very thin. And the majority does not really explain what it is doing. Much is left to implication. I am happy to draw these implications. But I suspect lower courts will decline to draw these implications, and stick with South Bay. And all they have to do is cite the critical sentence: “Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential.”

First, the Court states “the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.” And how do we know that the regulations “single out houses of worship for especially harsh treatment”?

Second, the Court compares Houses of Worship to other so-called “essential” businesses. For example, “acupuncture facilities, camp grounds, garages, as well as many whose services” do not have any occupancy caps. Moreover, the Court states that “factories and schools” are “treated less harshly” than houses of worship.

Third, this method of comparison is different from the comparator method from Chief’s South Bay concurrence. In South Bay, Roberts compared the house of worship to “comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” They key word is “comparable.” The per curiam opinion does not require that the house of worship be “comparable” to other secular businesses. Are houses of worship comparable to “factories and schools”? Not really. If any secular businesses are treated more favorably, the government has the burden to demonstrate why house of worship are treated less favorably.

Fourth, the majority–to be frank–adopted Justice Kavanaugh’s “most favored” right approach. Kavanaugh describes this approach in his concurrence:

The State argues that it has not impermissibly discriminated against religion because some secular businesses such as movie theaters must remain closed and are thus treated less favorably than houses of worship. But under this Court’s precedents, it does not suffice for a State to point out that, as compared to houses of worship, some secular businesses are subject to similarly severe or even more severe restrictions. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884; see also Calvary, 591 U. S., at ___ (KAVANAUGH, J., dissenting from denial of application for injunctive relief ) (slip op., at 7). Rather, once a State creates a favored class of businesses, as New York has done in this case, the State must justify why houses of worship are excluded from that favored class. Here, therefore, the State must justify imposing a 10-person or 25-person limit on houses of worship but not on favored secular businesses. See Lukumi, 508 U. S., at 537–538; Smith, 494 U. S., at 884. The State has not done so.

I see very little daylight between actual operation of the per curiam opinion and the Kavanaugh concurrence. At least Kavanaugh had the temerity to say what he was doing. And Justice Sotomayor reamed him or it. She wrote, that Smith and Lukumi do not “justify treating even noncomparable secular institutions more favorably than houses of worship.” Sotomayor was correct. But I don’t think the current interpretation fo Smith will stand for long.

Perhaps the majority was unwilling to adopt this new conception of “neutrality” here. I earlier speculated that this shift may augur the outcome in Fulton. Perhaps that case will formally adopt the Kavanaugh model of neutrality. If so, it would make sense to avoid reaching such a broad conclusion in an unargued shadow docket case.

What will the lower courts do to determine neutrality? Compare house of worship to “comparable secular gatherings”? Or consider all secular gatherings, regardless of whether they were comparable. I think Diocese has rejected the requirement of comparableness. Now, the comparators are any exempted gatherings. Of course, that holding is not clear. And the Supreme Court will have to clean up the mess in a few months.

from Latest – Reason.com https://ift.tt/36c5gtT
via IFTTT

I’ve edited Roman Catholic Diocese of Brooklyn v. Cuomo for the 2021 Barnett/Blackman supplement. You can download it here. I trimmed the case down from 33 to pages to about 9 pages. I omitted most of the back-and-forths between Gorsuch and Roberts. I doubt students will have much use for those barbs. If the Court ultimately grants certiorari in this case, I will edit that decision accordingly.

from Latest – Reason.com https://ift.tt/2Jhbq2R
via IFTTT

A few days after Justice Ginsburg passed away, I speculated that Chief Justice Roberts could let President Biden replace him to avoid Court packing. I am renewing this speculation. If Diocese is any prediction, Roberts will consistently find himself in dissent. And the troika of progressive no longer have any incentive to join him. He will consistently stand alone.  I am unable to think of a Chief Justice in history who consistently voted alone, in dissent, or in the majority.

And this solo act will not be fun. He is not like Justice Thomas, who spent decades writing solo opinions. Indeed, the Chief really seemed wounded by Justice Gorsuch’s barbs. I suspect that feud has been simmering for some time, but has only now become public.

Roberts’s moment in the sun passed in the blink of an eye. I would not be surprised if he steps down soon. To cement his legacy (in his mind at least), the Chief will let a Democratic President and a sharply-divided Congress replace him. And I think President Biden would be prudent to elevate Elena Kagan as Chief Justice. She would be confirmed.

from Latest – Reason.com https://ift.tt/33g5Q7Z
via IFTTT

This post is the sixth installment in my series on Roman Catholic Diocese of Brooklyn v. Cuomo. Part I focused on the end of the South Bay “superprecedent.” Part II focused on Jacobson v. Massachusetts. Part III focused on the Free Exercise Clause. Part IV focused on mootness. Part V focused on the distinction between “essential” and “non-essential” services.

What happens now? This case arose in a very unique context. The Diocese and Agudath Israel sought an injunction pending the Second Circuit’s disposition of the appeal. Here is how the Court described its remedy in the Diocese case:

Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

The Court issued a similar order in the Agudath Israel case:

Respondent is enjoined from enforcing Executive Order 202.68’s 10-and 25-person occupancy limits on applicants, including Agudath Israel of America’s current New York-based affiliates, pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.

Justice Kavanaugh’s concurrence offered a more succinct version of the order:

I vote to grant the applications of the Roman Catholic Diocese of Brooklyn and Agudath Israel of America for temporary injunctions against New York’s 10-person and 25- person caps on attendance at religious services. On this record, temporary injunctions are warranted because New York’s severe caps on attendance at religious services likely violate the First Amendment. Importantly, the Court’s orders today are not final decisions on the merits. Instead, the Court simply grants temporary injunctive relief until the Court of Appeals in December, and then this Court asappropriate, can more fully consider the merits.

But at present, the 10- and 25- person occupancy limits do not currently apply to the applicants. So does anything actually change?

According to Governor Cuomo, nothing changes. From the New York Times:

Mr. Cuomo, a third-term Democrat, insisted that the 5-4 decision “doesn’t have any practical effect” because the restrictions on religious services in Brooklyn, as well as similar ones in Queens and the city’s northern suburbs, had since been eased after the positive test rates in those areas had declined.

But the 10- and 25-person limits are in effect for other parts of New York, including my hometown of Staten Island. Cuomo’s counsel argued that the Court’s order did not apply statewide, but only with respect to the applicants in Brooklyn:

After Mr. Cuomo’s remarks, Beth Garvey, his legal counsel, said that the state believed the court’s opinion affected only the now-lapsed restrictions in Brooklyn, and that the other six zones would remain intact. Still, she added that officials would “be looking around the state at the other zones” and evaluating capacity restrictions in the most infected areas, also suggesting the state would continue to argue the case at a lower court level.

Here, Cuomo is arguing against a statewide injunction. My general view is that relief must be limited to the parties. But this decision has set an important new precedent (assuming the shadow docket can even establish precedents). And other courts will now have to follow that precedent.

What will Cuomo do? Justice Breyer offered some advice in his dissent:

I add that, in my view, the Court of Appeals will, and should, act expeditiously. The State of New York will, and should, seek ways of appropriately recognizing the religious interests here at issue without risking harm to the health and safety of the people of New York. But I see no practical need to issue an injunction to achieve these objectives.

If I had to guess, Cuomo will eliminate the hard cap, and peg the number of attendees to the size of the venue. Maybe 10 or 20% of the occupancy limit? A temple that holds at thousand people can safely hold 100 worshippers. Cuomo should have taken this approach at the outset. Of course, if Cuomo does nothing, then temples and churches can meet without any occupancy limit. He will take some temporary measure.

The Second Circuit will probably rule by the end of the year. At which point, the Supreme Court can grant certiorari, and maybe argue the case by March or April. At that point, the case will be squarely presented before the Court, outside the context of an injunction pending appeal. And, I think, the Chief would rule for the Diocese.

from Latest – Reason.com https://ift.tt/39ft55X
via IFTTT

The Supreme Court yesterday enjoined enforcement of New York Gov. Andrew Cuomo’s COVID-19 restrictions on “houses of worship,” concluding that they probably violate the First Amendment’s guarantee of religious freedom. The Brooklyn churches and synagogues that challenged Cuomo’ rules, which limit attendance at religious services to 10 people in “red” zones and 25 in “orange” zones, “have made a strong showing that the challenged restrictions violate ‘the minimum requirement of neutrality’ to religion,” five justices concluded.

This is the third time that the Court has considered applications for emergency injunctions against pandemic-inspired limits on religious gatherings. In the two earlier cases, involving restrictions imposed by California and Nevada, the Court said no. Those decisions were backed by Chief Justice John Roberts, along with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh dissented both times. This time around, the replacement of Ginsburg with Amy Coney Barrett proved decisive, as the recently confirmed justice sided with Thomas et al. in granting the injunction sought by the Roman Catholic Diocese of Brooklyn and Agudath Israel of America, which sued on behalf of the Orthodox synagogues it represents.

The Court has said the First Amendment’s Free Exercise Clause does not require religious exemptions from neutral, generally applicable laws. But it also has said laws are presumptively unconstitutional when they discriminate against religion.

New York’s restrictions “cannot be viewed as neutral because they single out houses of worship for especially harsh treatment,” the majority says. In red zones, businesses deemed “essential”—including supermarkets, convenience stores, hardware stores, pet stores, liquor stores, laundromats, acupuncturists, banks, and various offices—operate without capacity limits. “The disparate treatment is even more striking in an orange zone,” the Court notes. “While attendance at houses of worship is limited to 25 persons, even non-essential businesses may decide for themselves how many persons to admit.”

Those distinctions “lead to troubling results,” the justices point out. “A health department official testified about a large store in Brooklyn that could ‘literally
have hundreds of people shopping there on any given day,'” they say. “Yet a
nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for a worship service. And the Governor has stated that factories and
schools have contributed to the spread of COVID–19, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records.”

Since Cuomo’s rules are not neutral, the Court says, they can be upheld only if they survive “strict scrutiny,” which requires that they be “narrowly tailored” to serve a “compelling” state interest. “Stemming the spread of COVID–19 is unquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as ‘narrowly tailored,'” it says. “They are far more restrictive than any
COVID–related regulations that have previously come before the Court, much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services.”

Cuomo’s order was prompted by COVID-19 clusters tied to some Haredi institutions in Brooklyn. But both Roman Catholic churches and synagogues affiliated with Agudath Israel in the borough have been carefully following COVID-19 safeguards, and neither have seen any outbreaks since reopening.

“Not only is there no evidence that the applicants have contributed to the spread of COVID–19,” the Court says, “but there are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among
other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue.” Under the challenged rules, the 10-person and 25-person limits apply regardless of a building’s size. “It is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows,” the justices observe.

In a concurring opinion, Justice Gorsuch questions the relevance of Jacobson v. Massachusetts, a 1905 precedent often cited as a justification for COVID-19 restrictions. “Jacobson hardly supports cutting the Constitution loose during a pandemic,” he says.

In that case, the Court rejected Henning Jacobson’s argument that requiring him to be vaccinated against smallpox (or pay a fine for failing to do so) violated his right to “bodily integrity,” which he said was protected by “substantive due process” under the 14th Amendment. The Court “essentially applied rational basis review,” Gorsuch says, which is consistent with its current approach in 14th Amendment cases that do not involve a fundamental right or a suspect classification such as race. Here, by contrast, the Court’s free exercise precedents require strict scrutiny, a much tougher test.

Gorsuch also notes that Jacobson, unlike the plaintiffs in this case, was not relying on a specifically enumerated right. “Even if judges may impose emergency restrictions on rights that some of them have found hiding in the Constitution’s penumbras,” he says, “it does not follow that the same fate should befall the textually explicit right to religious exercise.”

Finally, Gorsuch says, New York’s restrictions on religious services are notably harsher than the vaccine mandate to which Jacobson objected. “In Jacobson, individuals could accept the vaccine, pay the fine, or identify a basis for exemption,” he notes. “The imposition on Mr. Jacobson’s claimed right to bodily integrity, thus, was avoidable and relatively modest….Here, by contrast, the State has effectively sought to ban all traditional forms of worship in affected ‘zones’ whenever the Governor decrees and for as long as he chooses. Nothing in Jacobson purported
to address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights. In fact, Jacobson explained that the challenged law survived only because it did not ‘contravene the Constitution of the United States’ or ‘infringe any right granted or secured by that instrument.'”

Gorsuch, like Alito and Kavanaugh, is worried that the COVID-19 pandemic has become a rationale for suspending well-established constitutional rights. “Government is not free to disregard the First Amendment in times of crisis,” he writes. “At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they
are pursuing a compelling interest and using the least restrictive means available. Yet recently, during the COVID pandemic, certain States seem to have ignored these long-settled principles….While the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.”

Writing in dissent, Roberts says there is no need to grant an injunction right now, because Cuomo recently changed the color coding of the neighborhoods where the plaintiffs’ churches and synagogues are located. “None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions,” he writes. “At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief they currently seek.” But as the majority notes, that mid-litigation switch does not eliminate the threat posed by the power Cuomo is asserting, since he can reimpose the original restrictions whenever he wants.

Breyer, joined by Kagan and Sotomayor, cites the same rationale for denying an injunction. But he also thinks “it’s far from clear” that the original capacity caps, which “are indeed low,” violate the Free Exercise Clause. “We have previously recognized that courts must grant elected officials ‘broad’ discretion when they ‘undertake to act in areas fraught with medical and scientific uncertainties,'” he says, quoting Roberts’ concurring opinion in the California case. “That is because the ‘Constitution principally entrusts the safety and the health of the people to the
politically accountable officials of the States.'”

In a dissenting opinion joined by Kagan, Sotomayor questions the plaintiffs’ argument that New York is treating houses of worship differently from secular venues that pose similar risks of virus transmission. The right comparison, she says, is not between religious services and the myriad secular activities that are not subject to occupancy limits. Rather, Sotomayor thinks, religious services are in the same class as “comparable secular gatherings” in theaters, lecture and music halls, and sports stadiums where “large groups of people gather in close proximity for extended periods of time.” As long as a state does not treat those venues more leniently than churches and synagogues, Sotomayor says, its rules are neutral, and “that should be enough to decide this case.”

Although that argument appeals to defenders of broad COVID-19 restrictions, it breaks down when you consider the reality of what New York is allowing vs. what it is prohibiting. “Large groups gather in close proximity for extended periods of time” in many of the businesses that New York has given more leeway than it allows houses of worship, including supermarkets, restaurants, factories, and big-box stores like Target.

“Even a pre-COVID Catholic Mass—typically lasting less than an hour on Sundays, less on weekdays—was shorter than many trips to a supermarket or big-box store, not to mention a nine-to-five office job,” the Roman Catholic Diocese of Brooklyn notes. “Mass is now even shorter, thanks to measures undertaken proactively and voluntarily by the Diocese.” As for “close proximity,” that has been addressed by the physical distancing rules that the diocese and Agudath Israel both enforce.

Agudath Israel synagogues “have carefully and successfully complied with mask requirements, social distancing, and capacity constraints,” the organization says. “Yet the Governor’s guilt-by-religious-association restrictions have made it impossible for Applicants and their members to exercise their religious faith.”

The plaintiffs in this case are prepared to follow the same rules that apply to secular establishments where the risk of virus transmission is similar. But they understandably object to rules that explicitly impose special burdens on houses of worship, especially when they are accompanied by rhetoric implying that the governor decided to target an entire religious community for the lapses of some members.

As Agudath Israel notes, Cuomo “threatened ‘members of the ultra-Orthodox community’ that ‘[i]f you do not agree to enforce the rules, then we’ll close the [religious] institutions down.'” He described the COVID-19 cluster in Brooklyn as “predominantly an ultra-Orthodox cluster” and “identified ‘the ultra-Orthodox community’ as causing the ‘problem,’ putting any doubt regarding his religious targeting to rest.”

Cuomo himself described his policy as “a fear-driven response,” saying, “This is not a policy being written by a scalpel. This is a policy being cut by a hatchet.” The Supreme Court is saying, as it has for many years, that more care is required when the government impedes religious freedom.

from Latest – Reason.com https://ift.tt/33mWZRT
via IFTTT