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Thu Nov 26, 2020, 10:01 PM

Cuomo Attacks Supreme Court, but Virus Ruling Is Warning to Governors

Source: NY Times

In a 5-4 decision, the court struck down an order by Gov. Andrew M. Cuomo that had restricted the size of religious gatherings in certain areas of New York where infection rates were climbing. The governor had imposed 10- and 25-person capacity limits on churches and other houses of worship in those areas.

If unconstrained religious observance and public safety were sometimes at odds, as the governor and other public officials maintained, the court ruled that religious freedom should win out.

Mr. Cuomo accused the court of partisanship, suggesting the ruling reflected the influence of the three conservative justices who have been nominated by President Trump in the past four years.

Chief Justice John G. Roberts Jr. noted in a dissenting opinion that none of the governor’s most strict restrictions were currently in force. While the governor’s capacity limits on houses of worship might have violated the First Amendment, Justice Roberts wrote that it was not necessary for the court “to rule on that serious and difficult question at this time.”



Read more: https://www.nytimes.com/2020/11/26/nyregion/supreme-court-churches-religious-gatherings.html?auth=login-email&fbclid=IwAR29-thfBvDW-7l2NpwbrmP-dALVifYa1WHSYnSSTCyXlJYch_lqRVPLLII&login=email&smid=fb-nytimes&smtyp=cur



Given the covid positivity/infection spikes across the 46 states, I'd rather err on the side of Governor Cuomo's science and numbers in the interests of "life, liberty, ... etc" over the 1st Amendment's so-called protections of believers' rights to deny science.

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Reply Cuomo Attacks Supreme Court, but Virus Ruling Is Warning to Governors (Original post)
ancianita Nov 26 OP
sboatcar Nov 26 #1
ancianita Nov 26 #3
ananda Nov 27 #20
yankeepants Nov 26 #2
ancianita Nov 26 #4
yankeepants Nov 26 #5
ancianita Nov 26 #7
wnylib Nov 27 #30
ananda Nov 27 #23
yankeepants Nov 26 #6
ancianita Nov 27 #11
mountain grammy Nov 26 #8
ancianita Nov 26 #9
BigmanPigman Nov 27 #10
ancianita Nov 27 #12
BigmanPigman Nov 27 #14
ancianita Nov 27 #15
angrychair Nov 27 #29
yellowdogintexas Nov 27 #32
yellowdogintexas Nov 27 #33
BigmanPigman Nov 27 #35
Yavin4 Nov 27 #13
ancianita Nov 27 #16
Initech Nov 27 #17
nuxvomica Nov 27 #18
Ford_Prefect Nov 27 #19
RVN VET71 Nov 27 #21
bringthePaine Nov 27 #22
roamer65 Nov 27 #39
llashram Nov 27 #24
The Wizard Nov 27 #25
ancianita Nov 27 #26
bucolic_frolic Nov 27 #27
roamer65 Nov 27 #38
azureblue Nov 27 #28
geretogo Nov 27 #31
rdking647 Nov 27 #34
roamer65 Nov 27 #36
Turbineguy Nov 27 #37
ancianita Nov 27 #40
Turbineguy Nov 28 #42
Ms. Toad Nov 28 #41
ancianita Nov 28 #43
iemitsu Nov 28 #44

Response to ancianita (Original post)

Thu Nov 26, 2020, 10:27 PM

1. What religions require you to go to church to practice them?

Because I don't know of any. So I don't see a first amendment violation at all.

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Response to sboatcar (Reply #1)

Thu Nov 26, 2020, 10:43 PM

3. Depends. Some churches admit that members can practice their knowledge of the difference

Last edited Fri Nov 27, 2020, 01:07 AM - Edit history (4)

between dogma, doctrine and norms. Others act as if collective worship is dogma.

The way I see it, most religions' religious leaders legally negotiate norms against secular constitutional law regardless of dogma and doctrine. So, "observing" or "attendance at public worship" can be confused by religious adherents as either dogma or doctrine that they might apply to constitutional protections.

The SCOTUS will act as if the Constitution protects believers literally until it's pressed to decide.
John Roberts, from what I can tell, doesn't want to do that yet, even though the majority do.

He's between the rock of covid science and the hard place of religions' dogma confused with public worship norms.

SCOTUS' history hasn't been all that modern when weighing science v. religion.

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Response to ancianita (Reply #3)

Fri Nov 27, 2020, 07:17 AM

20. Biden speaks well on this issue..

Biden speaks very well on the issue of science v religion, now
facing us because of the medieval reactionary SCOTUS hellbent
on its current death cult rulings.

Biden is basically saying God proposes, science disposes.

IOW, science and religion are not mutually exclusive.

Teilhard de Chardin would agree with him.

Some of the Catholics on the court should get up to
date on the philosophy and thinking of both their
modern theologians and the philosophy of science.

I’ve never seen such narrow-minded, bigoted thinking
in such high levels of the court and government. Anti-
intellectualism and fascist bigotry is ruining this country.

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Response to ancianita (Original post)

Thu Nov 26, 2020, 10:29 PM

2. Yes Northern NY. Andy Knows from whence he speaks


CORONAVIRUS LATEST / Get the latest news from 7 News on the coronavirus by clicking here


NEWS
Attendees of St. Peter’s church service in Lowville last Sunday quarantined after positive test

Church services, COVID-19 (Source: MGN)
By 7 News Staff | November 26, 2020 at 5:30 PM EST - Updated November 26 at 5:30 PM
LOWVILLE, N.Y. (WWNY) - Everyone who attended the 11 a.m. mass at St. Peter’s Catholic Church on Shady Avenue last Sunday are now in quarantine due to a potential exposure to COVID-19.

In a message posted to the church’s website, an asymptomatic person who attended the service tested positive for COVID-19.

According to the message, the church did take down names and phone numbers of everyone in attendance to make the contact tracing process easier.

“Precautions were taken at Mass with masks, social distancing, and hand sanitizer. The risk remains very low but it still means lives are going to be disrupted for the next two weeks for a number of us,” said Father James W Seymour.

Both Father Seymour and Father Jude C. Nnadibuagha are in quarantine.

The message did not specify how many people were in attendance.

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Response to yankeepants (Reply #2)

Thu Nov 26, 2020, 10:51 PM

4. How did they know who the asymptomatic person was.

Last edited Thu Nov 26, 2020, 11:36 PM - Edit history (1)

It's all well and good that they seem like they're using the brains that their God gave them.

But it's too damn bad that quarantine is their idea of following law instead of also following science, and preventing positivity counts to begin with.

Only in NY, however, would some churches actually take contact tracing seriously, and it's because New York's wise governor pushed to have the legislature sign off on his unitary decisionmaking about state health emergencies.

No other governor, to my knowledge, has convinced an entire state legislature to pass such a law.

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Response to ancianita (Reply #4)

Thu Nov 26, 2020, 10:58 PM

5. Perhaps a mandatory job-related test? Routine doc appointment? Pre-dental?

Everyone gets tested for these things in today's world.

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Response to yankeepants (Reply #5)

Thu Nov 26, 2020, 11:13 PM

7. Right? One would think that church leaders would require those, or at least a temperature

measure at the door, before public worship.

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Response to ancianita (Reply #7)

Fri Nov 27, 2020, 12:51 PM

30. But temp checks don't screen out

pre-symtomatic and asymptomatic people who are infected.

My church established some strict rules. Temp checks and health and travel questionaire at the door, mandatory masks to cover mouth AND nose through the entire time indoors, 50 people maximum, alternate pews and 6 foot separation in one pew except for family members, controlled entrace and departure to avoid group clusters, no singing (humming as substitute), hymnals and Bibles removed from pews), no bulletin handout (pick them up from a stack by the door), and hand sanitizer near the door. (There are doctors and nurses in the congregation.)

But I still have not been there since March. I am high risk and I know that even people with good intentions get lax. If they pull down their mask in the middle of the service, who is going to interrupt the service to tell them to pull it back up?

I will wait until it is completely safe.

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Response to yankeepants (Reply #5)

Fri Nov 27, 2020, 08:09 AM

23. Definitely on separation of church and state!

Some of you may recall that during the Bush years we were having this same discussion regarding evolution and the rightwing push to take control of public education in order to teach creationism and/or intelligent design. It's hard to believe that separation of church and state is still at risk now, as though Jefferson's words never existed. In 1802, in a letter to the Danbury Baptist Association, Jefferson wrote: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”

The Supreme Court has cited Jefferson’s letter in key cases, beginning with a polygamy case in the 19th century. In the 1947 case Everson v. Board of Education, the Court cited a direct link between Jefferson’s “wall of separation” concept and the First Amendment’s establishment clause.

https://www.monticello.org/site/research-and-collections/thomas-jefferson-and-religious-freedom?fbclid=IwAR0D_rMvrHjDAU4rHWPHHB8w8OPccfuf3BJXb3Euzz5HAIKWTDhWpux6FtI

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Response to ancianita (Original post)

Thu Nov 26, 2020, 11:03 PM

6. As a New Yorker, I feel my Gov is doing an excellent job despite his

many detractors who simply either don't like his politics or don't like to be told what to do even if it is to their determent.

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Response to yankeepants (Reply #6)

Fri Nov 27, 2020, 12:07 AM

11. He is. But it's a question of whose rights prevail -- those who are religious or everyone else's.

And the court ruled that religious rights are more equal than the "life, liberty, etc" rights of others.

Which is why Justice Roberts' dissent held that THAT question is too hard "at this time" for the court to rule on.

It's as if he doesn't want to think that any data should warrant science overruling religious practice, as if pubic religious observance is religion itself.

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Response to ancianita (Original post)

Thu Nov 26, 2020, 11:45 PM

8. SCOTUS shouldn't have even taken this case..

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Response to mountain grammy (Reply #8)

Thu Nov 26, 2020, 11:50 PM

9. Not a lawyer, I'd agree it's a state decision, but then the plaintiffs claim national standing.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 12:02 AM

10. Wasn't there ANOTHER multi thousand person wedding of a rabbi's

daughter in NYC last week? Isn't that another example of Covid spreading at large gatherings of any kind? This isn't about religion, it is about public health. SCOTUS needs to have justices added to balance the court. How and when can this idea really happen and how long would it take?

https://www.dailymail.co.uk/news/article-8973619/Secret-plans-helped-Brooklyn-synagogue-defy-Cuomo-pull-7-000-person-maskless-wedding.html

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Response to BigmanPigman (Reply #10)

Fri Nov 27, 2020, 12:17 AM

12. Yes. And Cuomo publicly addressed this in a previous public briefing.

Last edited Fri Nov 27, 2020, 01:09 AM - Edit history (1)

That gathering broke public health law.
https://www.democraticunderground.com/1017621122 (start 52:35)

No doubt that SCOTUS has to have more justices to voice a growing nation's need for representation.

The idea that Congress can determine the size of the SCOTUS should be taken up immediately.

I don't think there is any problem but congressional commitment to the will of The People to be heard in federal courts. We have 13 federal districts. We should have 13 SC justices.

The latest SCOTUS federal district assignments show an imbalance -- Roberts heads 3 districts, Alito and Kavanaugh head 2 districts each, and the rest have 1 district each.

This is the 117th Congress's Big judicial restructuring responsibility. But not if Senate Republicans have a say.

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Response to ancianita (Reply #12)

Fri Nov 27, 2020, 12:29 AM

14. I am steaming mad!

This was just on CNN. Harry Litman, attorney, said that this is the new trend of the new SCOTUS for a long time. RBG wouldn't allow SCOTUS to take this up twice before she died they said.
Someone just answered my question on DU about a time frame for balancing the courts and it likely won't happen until at least 2023. That is far too long.

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Response to BigmanPigman (Reply #14)

Fri Nov 27, 2020, 12:43 AM

15. Harry Litman? He's an attorney, not a constitutional lawyer. Anyone can claim to

spot SCOTUS trends, and yet John Roberts just dissented on religion having ruling priority over science re covid, because he knows covid affects 330 million people more than religion does.

And who in DU but congressional chamber speakers is credible enough to know the Congressional time frame for balancing the courts.

80 million people helped Democrats solidify the will of The People. That right there should be enough to pressure the passage of SCOTUS and judicial restructuring, even in the face of right wing media attacks.

Why? Because of the Millennial vote that just helped us win, both Black, white and Latino.
My millennial son, co-chair of his NM county's Democratic Party, said that the Electoral College and judicial restructuring are more important to them than even Medicare 4 All or college debt.

That 2023 timeline is just an opinion. We can change that congressional groupthink because we're DU.

We shouldn't get mad. We should get busy. This is what the youth of the party are all about -- restructuring, not just change talk.

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Response to ancianita (Reply #15)

Fri Nov 27, 2020, 12:30 PM

29. Unless we end gerrymandering

None of that is possible or relevant.

There is no ending the electoral college or restructuring the judiciary or anything else without ending gerrymandered districts.

It is a complete fantasy to think that republicans would vote in favor of these things when they have complete control.

We focus on presidential elections while republicans focus like a laser on state races and now are 4 state legislatures away from creating a Constitutional Convention and modifying the Constitution any way they want (three fourths is needed to modify without individual state ratification).

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Response to angrychair (Reply #29)

Fri Nov 27, 2020, 01:41 PM

32. gerrymandering is not at fault here. A state is going to have the same number of

electors no matter how weirdly the lines are drawn since electoral number is based on the total number of House Districts + the 2 senators.

Ending the electoral college means popular vote across the nation prevails instead of each state's electoral votes going to the party which won that state.

Gerrymandering as practiced by the Republicans, breaks up concentrated Democratic voting blocks to eliminate their power and therefore their representation in the House of Representatives or State Legislatures. These rearrangements essentially hand the districts to Republicans; every state's district map will be redrawn in spring of 2021 and Texas will probably be getting 3 more districts so the whole state will be redivided to accomodate those districts. Maybe one of those districts will be a very dependable Democratic District.

This also means that Texas will have more total electoral votes; other states will lose seats here and there all based on the census data from this year


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Response to BigmanPigman (Reply #10)

Fri Nov 27, 2020, 01:50 PM

33. I watched some videos of those weddings and I couldn't believe how huge the crowds were

and all the singing and jumping around and packed in like sardines, going on til dawn

I understand this decision if one is looking only at actual worship activities. However a wedding is a social event once you get past the actual ceremony.

Holding those giant gatherings is highly irresponsible.

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Response to yellowdogintexas (Reply #33)

Fri Nov 27, 2020, 07:58 PM

35. I never even knew these events took place

until a few months ago when there was pictures of a multi-thousand person wedding for a different rabbi's daughter in NYC. I couldn't believe it. It looked like an arena was used. How in the Hell is that safe and allowed to continue?!? I don't care if it is for sports, music, religion, etc. Any event like that is a health hazard.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 12:25 AM

13. We live in a country where religion is elevated over science.

That's not a sign of an advanced civilization.

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Response to Yavin4 (Reply #13)

Fri Nov 27, 2020, 01:05 AM

16. Agree. According to Justice Roberts, belief numbers aren't as protected as human health numbers.

Last edited Fri Nov 27, 2020, 09:27 AM - Edit history (1)

And SCOTUS shouldn't be ruling against governors' decisions as a consequence of executive branch failures to protect public health in pandemics, imo.

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Response to Yavin4 (Reply #13)

Fri Nov 27, 2020, 01:39 AM

17. And we can attribute it to Nixon's Southern Strategy.

Coddling the uber-religious and the gun nuts was one of the worst mistakes we made as a country.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 03:06 AM

18. This decision is contrary to the establishment clause

So-called conservatives only seem to recognize the freedom side of the 1st and not the establishment side. Clearly in a pandemic, where everyone is dependent on everyone else's adherence to restrictions, allowing violation of those restrictions raises a religion's need for expression over everyone's safety, establishing a state bias toward congregational religions and granting those religions authority over everyone's health. These are "shouting fire in a crowded theater" conditions.

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Response to nuxvomica (Reply #18)

Fri Nov 27, 2020, 04:34 AM

19. One is moved to ask how they would rule over actions like those of Amon Bundy, David Koresh,

or Osama Bin Laden? If one is truly faithful and devout are there any degrees of your expression which would provoke the court to rule in favor of a public authority?

Or does this ruling apply only to traditional or contemporary established faiths, and does that mean the establishment of a special class of religion with rights that supersede those of others?

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Response to ancianita (Original post)

Fri Nov 27, 2020, 07:22 AM

21. God is not going to protect the people the SCOTUS has condemned to death in this decision

She has more important things to focus on, like the impact of the Anthropocene on the future of any and all life on the planet.

(Not that She is capable of cauterizing the gaping wounds in the souls of the greedy plutocrats and Republican politicians who have long ago traded salvation for wealth.)

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Response to ancianita (Original post)

Fri Nov 27, 2020, 07:54 AM

22. anyone else already sick of this "christo-Taliban on the Potomac" shit?

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Response to bringthePaine (Reply #22)

Fri Nov 27, 2020, 08:13 PM

39. I have been for years.

Freedom of religion also means FREEDOM FROM RELIGION.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 09:15 AM

24. I only feel sorry for

the innocent people in their families and outside that might be infected by the religious nut jobs that won this case. And the Supreme Court? This is just the beginning of that nightmare that has been made by trump, his WH crew and the GOP. Women's right to choose, states returning to asking people questions that are unanswerable to stop them from voting, anyone in my age group knows who specifically was affected by that RW ploy.

Consequence, consequence, the consequence of cowardice and malfeasance by miller, mconnoll, ALL media early in trumps presidency and the GOP. Many who are still waiting for trump to overturn this election. My fear is the start of a war somewhere.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 09:16 AM

25. The restrictions are temporary

The Supreme / Mediocre Court's ruling is permanent until some right wing fanatics are removed from the Court.

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Response to The Wizard (Reply #25)

Fri Nov 27, 2020, 09:35 AM

26. Or until a big D Dem Congress moves to restructure it -- 13 justices for 13 federal districts.

This nation's population needs better judicial access. Republican justices have control of 8 of the 13 districts, by my count.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 09:59 AM

27. Nothing like a nice stuffy church as a prelude to a nice stuffy ventilator

Everything and everyone has a destination. Get your tickets, step right up.

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Response to bucolic_frolic (Reply #27)

Fri Nov 27, 2020, 08:11 PM

38. ...or a nice stuffy coffin or cremation chamber.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 11:45 AM

28. what the SC just did

was to throw open a door they didn't want to be opened: The door of "which religion are we talking about?"
Now that they have made this decision, then other religions can step forward and claim exemption from the law based upon legal grounds. For example there could be a religious group that takes mushrooms during their services. Mushrooms are illegal is some states but they can claim a religious exemption, based upon this ruling.

Then comes the lovely part wherein these so called Christian get hoisted by their own petard - The church of Satan can and mostly likely will say something like "It is in our religious tenets that abortion is allowed, so stopping a woman from getting an abortion is an infringement on our religion." Now the SC has to rule and even hairier, they have to decide what is a valid religion. That is, anybody can say they have a religion now and claim exemption. Say there is a bunch from Britain and they form a left side religion where it is their belief that God tells them to drive on the left side of the road and driving on the right side of the road is immoral. Now what? Does the SC say that this religion is not a true religion? Does the SC say their original ruling has to apply here because it sets precedent?

IOW the SC to say their ruling only applies to certain religions of their approval.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 01:17 PM

31. It's now a Rethuglicon Supreme Court and they are a death cult . Many more will die because of their

tyranny .

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Response to ancianita (Original post)

Fri Nov 27, 2020, 05:22 PM

34. after biden is in office send in the police

start shutting down churches that acted as super spreaders

if the go go to court to get court orders allowing them to reopen ignore them after all its up to the executive branch to enforce the order.
the supreme court has no enforcement ability

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Response to ancianita (Original post)

Fri Nov 27, 2020, 08:10 PM

36. I really hope this brings about the demonization of religious extremism.

All religions.

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Response to ancianita (Original post)

Fri Nov 27, 2020, 08:11 PM

37. King James Matt 18:20

"For where two or three are gathered together in my name, there am I in the midst of them."

The Church already worked this out.

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Response to Turbineguy (Reply #37)

Fri Nov 27, 2020, 11:33 PM

40. What exactly are you trying to say.

What exactly is the "this" that the Church already worked out.

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Response to ancianita (Reply #40)

Sat Nov 28, 2020, 03:22 AM

42. According to Jesus

2 or 3 are sufficient. According to the Court, 10 to 25 are not.

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Response to ancianita (Original post)

Sat Nov 28, 2020, 02:42 AM

41. Shame on the NYT (and others) for misrepresenting the decision

The Supreme Court did NOT strike down Cuomo's order. Nor did it rule that "If unconstrained religious observance and public safety were sometimes at odds . . . the court ruled that religious freedom should win out."

Yes, I know it's been reported that way - but anyone reporting it that way either did not read the opinion, or did not understand it.

Factual background

Cuomo's orders (10,000 foot view - I didn't read them, just the summary in the opinion with which 7 of the 9 justices seem to agree):

Areas are color coded by risk, three of which are yellow, orange, and red. In the orange and red risk areas, the orders single out religious institutions/events for special - harsher- restrictions. In yellow areas, all entities are treated the same.

Currently, the religious entities that brought the case are in a yellow area (meaning the restrictions about which they were complaining did not impact them.)

What the court did

The order barred enforcement of Cuomo's orders against the entities if the areas in which they were located ever become red or orange.

Injunctive relief is - in essence - a march in place order. It preserves the status quo when the plaintiff is likely to win its claim and when the damage would be irreparable if the threatened harm actually occurs. Because you aren't entitled to extraordinary relief unless the court thinks you will win on the merits, granting an injunctive relief grants a sneak preview into what the court is thinking before it actually decides an issue. For this (and other reasons) courts are usually very reluctant to issue injunctive relief.

So, the Supreme Court did not actually strike Cuomo's orders down. It just said, "not so fast" as to sending in the enforcers. The order not to enforce is in place only until the case is over (i.e. decided by the Supreme Court, or the Supreme Court declines to take the case.)

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 as appropriate, can more fully consider the merits.


The dissent said that the Supreme court jumped the gun: That it should not consider whether to block enforcement of the orders even temporarily because there was no case or controversy, and the injunction would merely be an advisory opinion. Courts don't like to issue those. It said the court should only (and promptly) consider an injunction if the areas become orange or red - but until then, the S.Ct should mind its own business because there is no immediate need for the injunction.

I agree with the dissent that there would be no irreparable harm in waiting to consider the injunction until after the plaintiffs are in an orange or red area. So I think the court got it wrong - but not for the reasons that are causing near hysteria about the decision, and what it means as to future rulings on religion from this court.

What is likely to happen in the 2nd Circuit (or the Supreme Court, if it reaches there)

On that I agree with the majority - and Roberts (at least) will likely side with the majority

What everybody seems to think the court said in its sneak preview (but which actually bears little relation to what it did say): "If unconstrained religious observance and public safety were sometimes at odds . . . the court ruled that religious freedom should win out."

What the court actually said in its sneak preview:

As a general rule, The first amendment bars imposing special restrictions based expressly on religion (or the lack thereof).

Cuomo's orders - again, from the court summary - expressly named religious entities/events and posed strict caps on attendance without regard to anything other than the fact that they were religious in nature.

A religious venue that could hold 1000 people is capped at 10 and 25 attendees (depending on red/orange status) - but other venues in the same zone that happen to be non-religious are capped at at a percentage of their capacity.

On rare occasions, restrictions that infringe constitutional rights (voting, speech, religion) are upheld - but it is an extremely high bar. The interest has to be compelling. (All 9 agreed that controlling the pandemic was compelling.) In addition - to base the restriction on a protected constitutional interest - there has to be no means of addressing the compelling interest without restricting these constitutionally protected rights.

So - assuming the characterization of the orders is correct - I would not want to represent the plaintiffs, because they are going to lose. (And they would almost certainly have lost even with Ginsburg on the court.) That's Con Law 101: It's a loser case if you expressly restrict (or require) religion. Only Justices Sotomayor and Kagan seem to differ - suggesting (somewhat inexplicably) that, rather than treating religious entities less favorably, the restrictions actually favor religion. If they are correct - it doesn't eliminate the issue, it just shifts the issue to a different plaintiff because then similarly situated secular businesses would have a constitutional claim because the rules then favor religion.

The solution

Cuomo needs to redraft the orders to prohibit risky behavior - at all events - rather expressly basing restrictions on religious events, specifically.

If the issue is extended family sitting together at mass - require 6' between everyone at all events (not just religious ones). (At my aunt's funeral mass the church required masks, but only blocked every other pew off. So parishioners were able to sit adjacent each other even if the person they were sitting next to was not someone they lived with. That's risky behavior that can be addressed without specifying churches.)

If the issue is hanging around for coffee hour (unmasked) after church - bar all inside eating and drinking in non-residential spaces.

If the issue is moving from a large room into a small room which puts people closer together - impose capacity limits on each indoor room, not just in the building.

If the issue is the risky activity of singing - them prohibit indoor singing (regardless of whether the event is religious).

Nothing in the decision suggests to me that generally applicable restrictions could not be applied to religious events. The focus of the sneak preview focused exclusively on provisions that expressly called out religion for harsher restrictions than were imposed on other entities or events. In fact, the majority suggests such restrictions would be likely to be upheld:

(Per curiam) {T}here 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.

(Gorsuch concurrence) As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides.

(Kavanaugh concurrence) In light of the devastating pandemic, I do not doubt the State’s authority to impose tailored restrictions—even very strict restrictions—on attendance at religious services and secular gatherings alike. But the New York restrictions on houses of worship are not tailored to the circumstances given the First Amendment interests at stake. To reiterate, New York’s restrictions on houses of worship are much more severe than the California and Nevada restrictions at issue in South Bay and Calvary, and much more severe than the restrictions that most other States are imposing on attendance at religious services. And New York’s restrictions discriminate against religion by treating houses of worship significantly worse than some secular businesses.


If Cuomo's orders are redrafted based on risky behavior, without mentioning religion, and the Supreme Court says they can't be enforced against churches, mosques, temples, etc. I'll be right there with you in condemning the court (and being extremely worried about the direction of the court) - because (as a general rule) religious activities are not exempt from generally applicable rules.

But, although this particular trouble may materialize tomorrow, I'm not going to borrow tomorrow's troubles for today - there are enough other things to worry about without freaking out about a decision that has been widely misrepresented.

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Response to Ms. Toad (Reply #41)

Sat Nov 28, 2020, 09:50 AM

43. Thank you for the clarification.

I posted the report out of interest in how well run Cuomo's pandemic zone works in its appropriate monitoring of business and other human activities.

I probably shouldn't have, but assumed that the report had legal credibility.

Thanks for laying out the flaws in the defense wording.

Now we understand, and hopefully Cuomo knows, what to do if he's to defend state guidelines again.

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Response to ancianita (Original post)

Sat Nov 28, 2020, 03:59 PM

44. This decision was about the collection plate not about freedom of speech.

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