SCOTUS

[kramerica.inc]

Yes. Absolutely.

What were/are the primary founding laws in this country?

Where in the Bill of Rights does it mention “regulating medical procedures performed by government-licensed practitioners?”



So yes, those regulations, while useful, are still “secondary” in nature.

[seacoaster]

Here's a pretty good article on this issue:

https://slate.com/news-and-politics/202 ... lgbtq.html

Essentially, the Court is asked to determine first whether the ordinance is aimed at curtailing or regulating a specific type of speech, e.g., whether this is a content-based distinction. If it is, then the Court applies strict scrutiny to the law, which, under most circumstances is fatal to the law. If there is a content based distinction, then the burden shifts to the state or municipality to show that the law is narrowly tailored to address a compelling governmental interest.

I think the issue here is that the two judges in the majority effectively jettisoned the evidence in the record that conversion therapy is more than quack medicine; it's demonstrably harmful to recipients of the therapy. And therefore disagreed that the municipality had demonstrated a compelling interest.

This isn't about something called primary and secondary laws; it is about the efficacy of certain restrictions on speech where there is a substantial safety and welfare interest in placing limits on that speech.

[cradleandshoot]

Here's a pretty good article on this issue:

https://slate.com/news-and-politics/202 ... lgbtq.html

Essentially, the Court is asked to determine first whether the ordinance is aimed at curtailing or regulating a specific type of speech, e.g., whether this is a content-based distinction. If it is, then the Court applies strict scrutiny to the law, which, under most circumstances is fatal to the law. If there is a content based distinction, then the burden shifts to the state or municipality to show that the law is narrowly tailored to address a compelling governmental interest.

I think the issue here is that the two judges in the majority effectively jettisoned the evidence in the record that conversion therapy is more than quack medicine; it's demonstrably harmful to recipients of the therapy. And therefore disagreed that the municipality had demonstrated a compelling interest.

This isn't about something called primary and secondary laws; it is about the efficacy of certain restrictions on speech where there is a substantial safety and welfare interest in placing limits on that speech.

The problem coaster is if the person agrees voluntarily to the procedure. IMO you can't turn a pickle back into a cucumber. The person has made a choice. If they are confused by how that conflicts with their religion, talk to your priest or appropriate spiritual leader. Trying to think you can change a persons sexual preference in this manner makes no sense to me. They already have enough obstacles in their life to deal with. I may not understand the gay lifestyle, by I sure as hell will always defend the right of any person to live their life as they see best suits them.

[RedFromMI]

Here's a pretty good article on this issue:

https://slate.com/news-and-politics/202 ... lgbtq.html

Essentially, the Court is asked to determine first whether the ordinance is aimed at curtailing or regulating a specific type of speech, e.g., whether this is a content-based distinction. If it is, then the Court applies strict scrutiny to the law, which, under most circumstances is fatal to the law. If there is a content based distinction, then the burden shifts to the state or municipality to show that the law is narrowly tailored to address a compelling governmental interest.

I think the issue here is that the two judges in the majority effectively jettisoned the evidence in the record that conversion therapy is more than quack medicine; it's demonstrably harmful to recipients of the therapy. And therefore disagreed that the municipality had demonstrated a compelling interest.

This isn't about something called primary and secondary laws; it is about the efficacy of certain restrictions on speech where there is a substantial safety and welfare interest in placing limits on that speech.

The problem coaster is if the person agrees voluntarily to the procedure. IMO you can't turn a pickle back into a cucumber. The person has made a choice. If they are confused by how that conflicts with their religion, talk to your priest or appropriate spiritual leader. Trying to think you can change a persons sexual preference in this manner makes no sense to me. They already have enough obstacles in their life to deal with. I may not understand the gay lifestyle, by I sure as hell will always defend the right of any person to live their life as they see best suits them.

The real problem is referring to being gay as a "lifestyle" as if it is a conscious decision on the part of the person. Lots of research that shows it is not a choice, but a result that places a particular person at a place in a spectrum of sexuality.

So "changing" that preference just does not really happen, if it is not a true choice. That is also why the psychiatric/psychology community is so dead set against so-called conversion therapy. You are just damaging the person.

At least this one will go to the SC where we see if the so-called conservatives on the court will actually listen to the majority of the appeals courts who have actually found this sort of restriction perfectly permissible.

[seacoaster]

Court invalidates NY church limitations/closures:

https://www.nytimes.com/2020/11/26/us/s ... e=Homepage

"The Supreme Court late Wednesday night barred restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the court’s three liberal members in dissent. The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role.

The court’s ruling was at odds with earlier ones concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.

The Supreme Court’s membership has changed since then, with Justice Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5 to 4, but in the opposite direction, with Chief Justice Roberts joining Justice Ginsburg and the other three members of what was then the court’s four-member liberal wing.

In an unsigned opinion, the majority said Mr. Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion.

In a concurring opinion, Justice Neil M. Gorsuch said Mr. Cuomo had treated secular activities more favorably than religious ones.

“It is time — past time — to make plain that, 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,” Justice Gorsuch wrote.

The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said Mr. Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

The restrictions are strict. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend religious services. In slightly less dangerous “orange zones,” which are also fluid, attendance is capped at 25. This applies even to churches that can seat more than 1,000 people.

The measures were prompted in large part by rising coronavirus cases in Orthodox Jewish areas but covered all “houses of worship.”

In a letter to the court last Thursday, Barbara D. Underwood, New York’s solicitor general, said that revisions to the color-coded zones effective Friday meant that “none of the diocese’s churches will be affected by the gathering-size limits it seeks to enjoin.” The next day, she told the court that the two synagogues were also no longer subject to the challenged restrictions.

Lawyers for the diocese questioned “the fluid nature of these modifications and the curious timing of the governor’s latest modification,” and they urged the court to decide the case notwithstanding the revisions.

Lawyers for the synagogues said Mr. Cuomo should not be allowed to “feign retreat” when “he retains the unfettered discretion to reimpose those restrictions on them at a moment’s notice.”

In a dissenting opinion on Wednesday, Chief Justice Roberts said the court had acted rashly.

“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote, adding, “It is not necessary, however, for us to rule on that serious and difficult question at this time.”

“The governor might reinstate the restrictions,” he wrote. “But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the governor does reinstate the numerical restrictions the applicants can return to this court, and we could act quickly on their renewed applications.”

In a second dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said Mr. Cuomo’s restrictions were sensible.

“Free religious exercise is one of our most treasured and jealously guarded constitutional rights,” she wrote. “States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today.”

“The Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives,” Justice Sotomayor wrote. “Because New York’s Covid-19 restrictions do just that, I respectfully dissent.”

The larger question in the two cases was whether government officials or judges should strike the balance between public health and religious exercise.

In a concurring opinion in the case from California in May, Chief Justice Roberts wrote that government officials should not “be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”

But in a recent speech to a conservative legal group, Justice Samuel A. Alito Jr., who had dissented in the earlier cases, said courts had an important role to play in protecting religious freedom, pandemic or no.

“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Justice Alito said this month, rejecting the view that “whenever there is an emergency, executive officials have unlimited, unreviewable discretion.”

In ruling against the diocese, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn said the case was difficult. But he concluded that he would defer to the governor.

“If the court issues an injunction and the state is correct about the acuteness of the threat currently posed by hot-spot neighborhoods,” the judge wrote, “the result could be avoidable death on a massive scale like New Yorkers experienced in the spring.”

In refusing to block the governor’s order while the two appeals went forward, a divided three-judge panel of the United States Court of Appeals for the Second Circuit drew on Chief Justice Roberts’s concurring opinion in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings, the majority wrote in an unsigned opinion, they did not run afoul of constitutional protections for religious freedom.

In dissent, Judge Michael H. Park said Mr. Cuomo’s order discriminated against houses of worship because it allowed businesses like liquor stores and pet shops to remain open without capacity restrictions.

Chief Justice Roberts rejected a similar argument in the California case. The order there, he wrote, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Judge Park responded that the order in the California case, coming as it did in the context of an emergency application that was decided in summary fashion, had limited force as a precedent. Moreover, he wrote, it had been “decided during the early stages of the pandemic, when local governments were struggling to prevent the health care system from being overwhelmed.”

In asking the Supreme Court to step in, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and broker’s offices and banks and bodegas.” An hourlong Mass, the diocese’s brief said, is “shorter than many trips to a supermarket or big-box store, not to mention a 9-to-5 job.”

Ms. Underwood responded that religious services pose special risks. “There is a documented history of religious gatherings serving as Covid-19 superspreader events,” she wrote.

Indoor religious services, Ms. Underwood wrote, “tend to involve large numbers of people from different households arriving simultaneously; congregating as an audience for an extended period of time to talk, sing or chant; and then leaving simultaneously — as well as the possibility that participants will mingle in close proximity throughout.”

Still, she wrote, religious services are subject to fewer restrictions than comparable secular ones. “Among other things, in both red and orange zones, casinos, bowling alleys, arcades, movie theaters and fitness centers are closed completely,” she wrote."

Here is the Court's unsigned opinion:

https://www.supremecourt.gov/opinions/2 ... 7_4g15.pdf

Thoughts?

[foreverlax]

My thought, you have a constitutional right to practice your religion....by doing so, you don't have the right to make others sick and swamp your local healthcare system.

[seacoaster]

My thought, you have a constitutional right to practice your religion....by doing so, you don't have the right to make others sick and swamp your local healthcare system.

Yep; good thought. This is the problem of the unnuanced approach to First Amendment issues generally since a case call Reed v. Town of Gilbert, AZ. Once the Court concludes that the restriction treats one message or messenger differently, it applies strict scrutiny and the law is invalidated. Period. Even where, as in this case, the government interest is "compelling," the Court mandates invalidation of the law.

The NY authorities also backed off here: the Court needn't have stepped into this fray, as Roberts and the trio of Breyer, Sotomayor and Kagan clearly explain. Why, then, does the majority do this? I think the majority is giving notice of a new and expansive era for Free Exercise and free speech claims, in which exercise and speech are literally elevated above other societal interests, even the compelling interest in things like public health and the truth.

If you want to travel over to the Nerd Bar for a read, take a look at Kagan's opinion in the Reed v. Town of Gilbert case (below). She and Breyer seem to me to have the right ideas on striking the balance in the modern age. Here it is:

https://supreme.justia.com/cases/federa ... on-3422818

Here is the basic core of what she says:

"Although the majority insists that applying strict scrutiny to all such ordinances is “essential” to protecting First Amendment freedoms, ante, at 14, I find it challenging to understand why that is so. This Court’s decisions articulate two important and related reasons for subjecting content-based speech regulations to the most exacting standard of review. The first is “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” The second is to ensure that the government has not regulated speech “based on hostility—or favoritism—towards the underlying message expressed.” Yet the subject-matter exemptions included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install a light bulb over “name and address” signs but no others does not distort the marketplace of ideas. Nor does that different treatment give rise to an inference of impermissible government motive.

We apply strict scrutiny to facially content-based regulations of speech, in keeping with the rationales just described, when there is any “realistic possibility that official suppression of ideas is afoot.” That is always the case when the regulation facially differentiates on the basis of viewpoint. It is also the case (except in non-public or limited public forums) when a law restricts “discussion of an entire topic” in public debate. We have stated that “f the marketplace of ideas is to remain free and open, governments must not be allowed to choose ‘which issues are worth discussing or debating.’ ” And we have recognized that such subject-matter restrictions, even though viewpoint-neutral on their face, may “suggest[ ] an attempt to give one side of a debatable public question an advantage in expressing its views to the people.” Subject-matter regulation, in other words, may have the intent or effect of favoring some ideas over others. When that is realistically possible—when the restriction “raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace”—we insist that the law pass the most demanding constitutional test.

But when that is not realistically possible, we may do well to relax our guard so that “entirely reasonable” laws imperiled by strict scrutiny can survive. This point is by no means new. Our concern with content-based regulation arises from the fear that the government will skew the public’s debate of ideas—so when “that risk is inconsequential, . . . strict scrutiny is unwarranted.” To do its intended work, of course, the category of content-based regulation triggering strict scrutiny must sweep more broadly than the actual harm; that category exists to create a buffer zone guaranteeing that the government cannot favor or disfavor certain viewpoints. But that buffer zone need not extend forever. We can administer our content-regulation doctrine with a dose of common sense, so as to leave standing laws that in no way implicate its intended function."

Sorry if this is all too much. Happy Thanksgiving.

[cradleandshoot]

Court invalidates NY church limitations/closures:

https://www.nytimes.com/2020/11/26/us/s ... e=Homepage

"The Supreme Court late Wednesday night barred restrictions on religious services in New York that Gov. Andrew M. Cuomo had imposed to combat the coronavirus.

The vote was 5 to 4, with Chief Justice John G. Roberts Jr. and the court’s three liberal members in dissent. The order was the first in which the court’s newest member, Justice Amy Coney Barrett, played a decisive role.

The court’s ruling was at odds with earlier ones concerning churches in California and Nevada. In those cases, decided in May and July, the court allowed the states’ governors to restrict attendance at religious services.

The Supreme Court’s membership has changed since then, with Justice Barrett succeeding Justice Ruth Bader Ginsburg, who died in September. The vote in the earlier cases was also 5 to 4, but in the opposite direction, with Chief Justice Roberts joining Justice Ginsburg and the other three members of what was then the court’s four-member liberal wing.

In an unsigned opinion, the majority said Mr. Cuomo’s restrictions violated the First Amendment’s protection of the free exercise of religion.

In a concurring opinion, Justice Neil M. Gorsuch said Mr. Cuomo had treated secular activities more favorably than religious ones.

“It is time — past time — to make plain that, 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,” Justice Gorsuch wrote.

The court’s order addressed two applications: one filed by the Roman Catholic Diocese of Brooklyn, the other by two synagogues, an Orthodox Jewish organization and two individuals. The applications both said Mr. Cuomo’s restrictions violated constitutional protections for the free exercise of religion, and the one from the synagogues added that Mr. Cuomo had “singled out a particular religion for blame and retribution for an uptick in a societywide pandemic.”

The restrictions are strict. In shifting “red zones,” where the coronavirus risk is highest, no more than 10 people may attend religious services. In slightly less dangerous “orange zones,” which are also fluid, attendance is capped at 25. This applies even to churches that can seat more than 1,000 people.

The measures were prompted in large part by rising coronavirus cases in Orthodox Jewish areas but covered all “houses of worship.”

In a letter to the court last Thursday, Barbara D. Underwood, New York’s solicitor general, said that revisions to the color-coded zones effective Friday meant that “none of the diocese’s churches will be affected by the gathering-size limits it seeks to enjoin.” The next day, she told the court that the two synagogues were also no longer subject to the challenged restrictions.

Lawyers for the diocese questioned “the fluid nature of these modifications and the curious timing of the governor’s latest modification,” and they urged the court to decide the case notwithstanding the revisions.

Lawyers for the synagogues said Mr. Cuomo should not be allowed to “feign retreat” when “he retains the unfettered discretion to reimpose those restrictions on them at a moment’s notice.”

In a dissenting opinion on Wednesday, Chief Justice Roberts said the court had acted rashly.

“Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive,” he wrote, adding, “It is not necessary, however, for us to rule on that serious and difficult question at this time.”

“The governor might reinstate the restrictions,” he wrote. “But he also might not. And it is a significant matter to override determinations made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic. If the governor does reinstate the numerical restrictions the applicants can return to this court, and we could act quickly on their renewed applications.”

In a second dissent, Justice Sonia Sotomayor, joined by Justice Elena Kagan, said Mr. Cuomo’s restrictions were sensible.

“Free religious exercise is one of our most treasured and jealously guarded constitutional rights,” she wrote. “States may not discriminate against religious institutions, even when faced with a crisis as deadly as this one. But those principles are not at stake today.”

“The Constitution does not forbid states from responding to public health crises through regulations that treat religious institutions equally or more favorably than comparable secular institutions, particularly when those regulations save lives,” Justice Sotomayor wrote. “Because New York’s Covid-19 restrictions do just that, I respectfully dissent.”

The larger question in the two cases was whether government officials or judges should strike the balance between public health and religious exercise.

In a concurring opinion in the case from California in May, Chief Justice Roberts wrote that government officials should not “be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence and expertise to assess public health and is not accountable to the people.”

But in a recent speech to a conservative legal group, Justice Samuel A. Alito Jr., who had dissented in the earlier cases, said courts had an important role to play in protecting religious freedom, pandemic or no.

“Whenever fundamental rights are restricted, the Supreme Court and other courts cannot close their eyes,” Justice Alito said this month, rejecting the view that “whenever there is an emergency, executive officials have unlimited, unreviewable discretion.”

In ruling against the diocese, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn said the case was difficult. But he concluded that he would defer to the governor.

“If the court issues an injunction and the state is correct about the acuteness of the threat currently posed by hot-spot neighborhoods,” the judge wrote, “the result could be avoidable death on a massive scale like New Yorkers experienced in the spring.”

In refusing to block the governor’s order while the two appeals went forward, a divided three-judge panel of the United States Court of Appeals for the Second Circuit drew on Chief Justice Roberts’s concurring opinion in the California case. Since the restrictions on churches were less severe than those on comparable secular gatherings, the majority wrote in an unsigned opinion, they did not run afoul of constitutional protections for religious freedom.

In dissent, Judge Michael H. Park said Mr. Cuomo’s order discriminated against houses of worship because it allowed businesses like liquor stores and pet shops to remain open without capacity restrictions.

Chief Justice Roberts rejected a similar argument in the California case. The order there, he wrote, “exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

Judge Park responded that the order in the California case, coming as it did in the context of an emergency application that was decided in summary fashion, had limited force as a precedent. Moreover, he wrote, it had been “decided during the early stages of the pandemic, when local governments were struggling to prevent the health care system from being overwhelmed.”

In asking the Supreme Court to step in, lawyers for the diocese argued that its “spacious churches” were safer than many “secular businesses that can open without restrictions, such as pet stores and broker’s offices and banks and bodegas.” An hourlong Mass, the diocese’s brief said, is “shorter than many trips to a supermarket or big-box store, not to mention a 9-to-5 job.”

Ms. Underwood responded that religious services pose special risks. “There is a documented history of religious gatherings serving as Covid-19 superspreader events,” she wrote.

Indoor religious services, Ms. Underwood wrote, “tend to involve large numbers of people from different households arriving simultaneously; congregating as an audience for an extended period of time to talk, sing or chant; and then leaving simultaneously — as well as the possibility that participants will mingle in close proximity throughout.”

Still, she wrote, religious services are subject to fewer restrictions than comparable secular ones. “Among other things, in both red and orange zones, casinos, bowling alleys, arcades, movie theaters and fitness centers are closed completely,” she wrote."

Here is the Court's unsigned opinion:

https://www.supremecourt.gov/opinions/2 ... 7_4g15.pdf

Thoughts?

Every Sunday at 6am one of our TV stations has a mass for shut ins. There are several people I know that go to mass every week this way. I don't think God will give you demerit points for not going to church. Stay home and stay safe. I'm sure God will hear your prayers wherever you say them. My wife and I and Roxy are having our own Thanksgiving. It stinks not being able to be with family this year. We have zoom chats scheduled with our kids this afternoon. This we all are making sacrifices so we can all be safe. IMO missing church is a better option than getting Covid.

[seacoaster]

Some reactions:

https://twitter.com/Sifill_LDF/status/1 ... 8596706304

Hope you and Mrs. C&S and Roxy have a nice, happy quiet day. I have both kids home, wife, and beagle. Much to be thankful for, even in this hard year.

[njbill]

The dogma lives loudly within her, indeed.

This activist decision was wrong for three reasons.

First, the case is moot, as the Chief Justice said. New York has changed its rules (zone designations) so that the religious institutions will now be permitted to conduct the services in the manner they seek. This isn’t like a pregnancy case which is one of the classic instances of why cases that become moot need to be decided. That the state could reimpose the rules doesn’t alter the fact that – today – there are no rules in place that unreasonably infringe on the petitioners' First Amendment rights. This case is quite similar in terms of the mootness issue to the NY gun case from last term. NY changed its gun laws while the case was pending, and the Supreme Court then dismissed it on mootness grounds. They should have done the same thing with this case.

Second, the Court has already ruled on very similar cases involving Covid restrictions. To, in effect, reverse those rulings mere months later undercuts the institution of the Supreme Court. The law should, by and large, stay the same and should not “change” due to the comings and goings of the justices.

Third, the decision is wrong on the merits. Courts have no business second guessing the public health and safety decisions of the elected representatives whose core duty is to protect the citizens. They overstep their place in the constitutional order in doing so. The Justices are not experts in the relevant areas. They are trained and experienced in the law, not science or medicine.

A word about Barrett. Regrettably, today’s decision was not unexpected. She is who she has appeared to be. The next big test will come in how the Court handles the election cases from Pennsylvania, which likely will be headed to the Court next week. I’m pretty optimistic about how those cases will come out, but I have some concern given this new, activist conservative majority.

[Bart]

The dogma lives loudly within her, indeed.

This activist decision was wrong for three reasons.

First, the case is moot, as the Chief Justice said. New York has changed its rules (zone designations) so that the religious institutions will now be permitted to conduct the services in the manner they seek. This isn’t like a pregnancy case which is one of the classic instances of why cases that become moot need to be decided. That the state could reimpose the rules doesn’t alter the fact that – today – there are no rules in place that unreasonably infringe on the petitioners' First Amendment rights. This case is quite similar in terms of the mootness issue to the NY gun case from last term. NY changed its gun laws while the case was pending, and the Supreme Court then dismissed it on mootness grounds. They should have done the same thing with this case.

Second, the Court has already ruled on very similar cases involving Covid restrictions. To, in effect, reverse those rulings mere months later undercuts the institution of the Supreme Court. The law should, by and large, stay the same and should not “change” due to the comings and goings of the justices.

Third, the decision is wrong on the merits. Courts have no business second guessing the public health and safety decisions of the elected representatives whose core duty is to protect the citizens. They overstep their place in the constitutional order in doing so. The Justices are not experts in the relevant areas. They are trained and experienced in the law, not science or medicine.

A word about Barrett. Regrettably, today’s decision was not unexpected. She is who she has appeared to be. The next big test will come in how the Court handles the election cases from Pennsylvania, which likely will be headed to the Court next week. I’m pretty optimistic about how those cases will come out, but I have some concern given this new, activist conservative majority.

What cases will head to the SCOTUS from Pa.?

[CU77]

Where in the Bill of Rights does it mention “regulating medical procedures performed by government-licensed practitioners?”



So yes, those regulations, while useful, are still “secondary” in nature.

Great, all the physicians here can cancel their malpractice insurance! They just have to claim "free speech" if they mess up.

[seacoaster]

The dogma lives loudly within her, indeed.

This activist decision was wrong for three reasons.

First, the case is moot, as the Chief Justice said. New York has changed its rules (zone designations) so that the religious institutions will now be permitted to conduct the services in the manner they seek. This isn’t like a pregnancy case which is one of the classic instances of why cases that become moot need to be decided. That the state could reimpose the rules doesn’t alter the fact that – today – there are no rules in place that unreasonably infringe on the petitioners' First Amendment rights. This case is quite similar in terms of the mootness issue to the NY gun case from last term. NY changed its gun laws while the case was pending, and the Supreme Court then dismissed it on mootness grounds. They should have done the same thing with this case.

Second, the Court has already ruled on very similar cases involving Covid restrictions. To, in effect, reverse those rulings mere months later undercuts the institution of the Supreme Court. The law should, by and large, stay the same and should not “change” due to the comings and goings of the justices.

Third, the decision is wrong on the merits. Courts have no business second guessing the public health and safety decisions of the elected representatives whose core duty is to protect the citizens. They overstep their place in the constitutional order in doing so. The Justices are not experts in the relevant areas. They are trained and experienced in the law, not science or medicine.

A word about Barrett. Regrettably, today’s decision was not unexpected. She is who she has appeared to be. The next big test will come in how the Court handles the election cases from Pennsylvania, which likely will be headed to the Court next week. I’m pretty optimistic about how those cases will come out, but I have some concern given this new, activist conservative majority.

Great post. Your "First" and "Third" points are right on the money. This is an activist Court; it didn't need to do this, but wanted to make a political statement, and did so by second-guessing the State's democratically elected leadership in a majoritarian society. This is exactly the judicial activism or "legislating from the bench" that Conservatives once pretended to loathe. Another "principle" countermanded by the cold exercise of power. It's hard to understand what they stand for anymore.

[njbill]

What cases will head to the SCOTUS from Pa.?

Forgive me for not keeping them all straight, but there could be a couple coming from the Pennsylvania Supreme Court, including possibly the one currently bumping between the commonwealth court (the appellate court) and the Pennsylvania Supreme Court filed by Rep. Kelly.

There is also the late arriving ballot case, which got some publicity before the election. Not sure if the Republicans will push it because the number of votes in question in terms of differential is probably only around 5000, plus the votes haven’t been counted in any event as of yet.

Also, there is the case now before the Third Circuit which Rudy argued (the “opacity” case) in the trial court. Procedurally, the issue in this case is whether the trial court abused his discretion in refusing to allow the plaintiffs to amend their complaint for a second time. Substantively, if we get past that, the plaintiffs are alleging an equal protection claim based on the fact that some of the counties permitted voters to cure defects in their mail in ballots and others did not. A somewhat related claim is that the Secretary of State (allegedly) was not authorized by Pennsylvania law to promulgate a rule instructing the counties to permit voters to cure defects in their mail in ballots.

Some of the claims have been raised in more than one lawsuit so it is a bit confusing to try to keep everything straight.

The lawyering by the T**** campaign, to be charitable, has been slipshod. One would think they would be well advised to get a team of real Supreme Court lawyers to write any briefs going before that court. Having said that, if the Supreme Court camels are intent on getting their noses under the tent, they may try to find a way to make something out of the mishmash jumble of claims T**** has put forth in their effort to reach their intended result.

Nevertheless, I think it will be difficult even for the conservative cabal on the current Court who no doubt would like to see a Republican in the White House (even T****) to breath life into the Orange Duce’s sorry case.

[cradleandshoot]

The dogma lives loudly within her, indeed.

This activist decision was wrong for three reasons.

First, the case is moot, as the Chief Justice said. New York has changed its rules (zone designations) so that the religious institutions will now be permitted to conduct the services in the manner they seek. This isn’t like a pregnancy case which is one of the classic instances of why cases that become moot need to be decided. That the state could reimpose the rules doesn’t alter the fact that – today – there are no rules in place that unreasonably infringe on the petitioners' First Amendment rights. This case is quite similar in terms of the mootness issue to the NY gun case from last term. NY changed its gun laws while the case was pending, and the Supreme Court then dismissed it on mootness grounds. They should have done the same thing with this case.

Second, the Court has already ruled on very similar cases involving Covid restrictions. To, in effect, reverse those rulings mere months later undercuts the institution of the Supreme Court. The law should, by and large, stay the same and should not “change” due to the comings and goings of the justices.

Third, the decision is wrong on the merits. Courts have no business second guessing the public health and safety decisions of the elected representatives whose core duty is to protect the citizens. They overstep their place in the constitutional order in doing so. The Justices are not experts in the relevant areas. They are trained and experienced in the law, not science or medicine.

A word about Barrett. Regrettably, today’s decision was not unexpected. She is who she has appeared to be. The next big test will come in how the Court handles the election cases from Pennsylvania, which likely will be headed to the Court next week. I’m pretty optimistic about how those cases will come out, but I have some concern given this new, activist conservative majority.

Even if the decisions made by public health officials may violate a citizens constitutional right in this special instance the justices should ignore the violation? I'm at a disadvantage here not being a lawyer, I do understand if a particular ruling is unconstitutional then it is what it is... unconstitutional. It is no surprise to me that every legal eagle seems to base their opinion by where they stand on the political spectrum. IMO the restrictions make sense. How the restrictions are enforced over a wide spectrum of businesses makes no sense at all. It does seem odd to me if you have a church that seats 1000 people that you limit a church service to 10 people. I think you can figure out a way to allow a few more people than that into church. Either way the restrictions are not being implemented in a uniform fashion.

[njbill]

The dogma lives loudly within her, indeed.

This activist decision was wrong for three reasons.

First, the case is moot, as the Chief Justice said. New York has changed its rules (zone designations) so that the religious institutions will now be permitted to conduct the services in the manner they seek. This isn’t like a pregnancy case which is one of the classic instances of why cases that become moot need to be decided. That the state could reimpose the rules doesn’t alter the fact that – today – there are no rules in place that unreasonably infringe on the petitioners' First Amendment rights. This case is quite similar in terms of the mootness issue to the NY gun case from last term. NY changed its gun laws while the case was pending, and the Supreme Court then dismissed it on mootness grounds. They should have done the same thing with this case.

Second, the Court has already ruled on very similar cases involving Covid restrictions. To, in effect, reverse those rulings mere months later undercuts the institution of the Supreme Court. The law should, by and large, stay the same and should not “change” due to the comings and goings of the justices.

Third, the decision is wrong on the merits. Courts have no business second guessing the public health and safety decisions of the elected representatives whose core duty is to protect the citizens. They overstep their place in the constitutional order in doing so. The Justices are not experts in the relevant areas. They are trained and experienced in the law, not science or medicine.

A word about Barrett. Regrettably, today’s decision was not unexpected. She is who she has appeared to be. The next big test will come in how the Court handles the election cases from Pennsylvania, which likely will be headed to the Court next week. I’m pretty optimistic about how those cases will come out, but I have some concern given this new, activist conservative majority.

Even if the decisions made by public health officials may violate a citizens constitutional right in this special instance the justices should ignore the violation? I'm at a disadvantage here not being a lawyer, I do understand if a particular ruling is unconstitutional then it is what it is... unconstitutional. It is no surprise to me that every legal eagle seems to base their opinion by where they stand on the political spectrum. IMO the restrictions make sense. How the restrictions are enforced over a wide spectrum of businesses makes no sense at all. It does seem odd to me if you have a church that seats 1000 people that you limit a church service to 10 people. I think you can figure out a way to allow a few more people than that into church. Either way the restrictions are not being implemented in a uniform fashion.

You make some fair points.

Whether the restrictions are unconstitutional, of course, is the $64,000 question. All constitutional rights, including the First Amendment freedom to practice religion, are subject to restrictions.

No one seems to dispute that places of worship are subject to fire code occupancy limitations, which are similar in some respects to the Covid restrictions. Now, you may counter that those restrictions are applied somewhat evenhandedly to all buildings. Fair enough. But the Covid issues are more complicated in that people tend to spend more time in some places, say churches, than they do in liquor stores. Also, singing in a church may project infectious particles in the direction of surrounding people more so than simply saying thank you to a clerk who has processed your beer purchase.

The Covid crisis has presented governmental officials with difficult, complex, and confounding issues in their attempt to protect public health and safety. A key complication, of course, is that the virus is new and the experts’ views on best practices continue to evolve.

How to handle all of this is the job of elected government officials who (hopefully) are seeking out the expertise of doctors and scientists. Judges are ill-equipped to make these decisions even in the first instance, let alone second-guess those whose job it is to make them.

[youthathletics]

I thought the 'crux' of the issue is that law enforcement can not enforce/arrest/give citation for anything that is not backed by a legislative passed vote. Meaning, the 'restrictions' coming from governors, are really just recommendation, b/c they are not backed and voted on by a representative group and not 'on gov't held property'.

[Kismet]

What cases will head to the SCOTUS from Pa.?

Forgive me for not keeping them all straight, but there could be a couple coming from the Pennsylvania Supreme Court, including possibly the one currently bumping between the commonwealth court (the appellate court) and the Pennsylvania Supreme Court filed by Rep. Kelly.

There is also the late arriving ballot case, which got some publicity before the election. Not sure if the Republicans will push it because the number of votes in question in terms of differential is probably only around 5000, plus the votes haven’t been counted in any event as of yet.

Also, there is the case now before the Third Circuit which Rudy argued (the “opacity” case) in the trial court. Procedurally, the issue in this case is whether the trial court abused his discretion in refusing to allow the plaintiffs to amend their complaint for a second time. Substantively, if we get past that, the plaintiffs are alleging an equal protection claim based on the fact that some of the counties permitted voters to cure defects in their mail in ballots and others did not. A somewhat related claim is that the Secretary of State (allegedly) was not authorized by Pennsylvania law to promulgate a rule instructing the counties to permit voters to cure defects in their mail in ballots.

Some of the claims have been raised in more than one lawsuit so it is a bit confusing to try to keep everything straight.

The lawyering by the T**** campaign, to be charitable, has been slipshod. One would think they would be well advised to get a team of real Supreme Court lawyers to write any briefs going before that court. Having said that, if the Supreme Court camels are intent on getting their noses under the tent, they may try to find a way to make something out of the mishmash jumble of claims T**** has put forth in their effort to reach their intended result.

Nevertheless, I think it will be difficult even for the conservative cabal on the current Court who no doubt would like to see a Republican in the White House (even T****) to breath life into the Orange Duce’s sorry case.

US Third Circuit Court of Appeals just unanimously rejected the appeal of Trump campaign lawsuit in Pennsylvania. The author of this opinion was a Trump-appointed judge. From his statement -
“The campaign’s claims have no merit. Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."

link to the 21 page decision
https://www.justsecurity.org/wp-content ... /Trump.pdf

Do not think an appeal to SCOTUS will even be entertained there. If they try, I doubt SCOTUS will grant cert on the question of whether leave to amend a meritless complaint should be granted.

[njbill]

I thought the 'crux' of the issue is that law enforcement can not enforce/arrest/give citation for anything that is not backed by a legislative passed vote. Meaning, the 'restrictions' coming from governors, are really just recommendation, b/c they are not backed and voted on by a representative group and not 'on gov't held property'.

Without getting too deeply into the weeds, governors, public health officials, etc. have some latitude pursuant to general legislation passed by legislatures and signed into law by governors to take specific steps to protect public health and safety.

The question is whether the governors, etc. have exceeded their authority. Historically, it has been exceedingly rare for courts to step in and second-guess health and safety decisions made by government officials.

In the New York case, I don’t think it was argued that Governor Cuomo exceeded his authority, per se, but rather that the rules unduly infringed on people’s first amendment right to practice their religions.

[Carroll81]

I thought the 'crux' of the issue is that law enforcement can not enforce/arrest/give citation for anything that is not backed by a legislative passed vote. Meaning, the 'restrictions' coming from governors, are really just recommendation, b/c they are not backed and voted on by a representative group and not 'on gov't held property'.

Without getting too deeply into the weeds, governors, public health officials, etc. have some latitude pursuant to general legislation passed by legislatures and signed into law by governors to take specific steps to protect public health and safety.

The question is whether the governors, etc. have exceeded their authority. Historically, it has been exceedingly rare for courts to step in and second-guess health and safety decisions made by government officials.

In the New York case, I don’t think it was argued that Governor Cuomo exceeded his authority, per se, but rather that the rules unduly infringed on people’s first amendment right to practice their religions.

Not a lawyer, and I didn't get a chance to read the order directly. But, I did read the synopsis on SCOTUSBlog. Please correct me if I'm wrong:

At this point they didn't decide anything about the order itself yet. They "simply" decided that it can not be enforced until it makes its way through the courts. Is that correct?

Seems they spent more time arguing over whether they should issue any type or ruling or not vs. the actual merits. Some type of internal SCOTUS politics now that there is a new justice seated?