Lamestream media — what the Supreme Court really said about California's COVID church restrictions

© 2020 Peter Free

 

30 May 2020

 

 

Daily tide of ignorance-encouragement continues

 

Consider the US media's contextually ignorant reporting of the following US Supreme Court opinion about COVID era limitations on religious gatherings.

 

The case had to do with a demand that the Supreme Court enjoin (meaning prohibit) California's restrictions on the size of religious gatherings.

 

News headlines (misleadingly, as we will see) went like these:

 

 

Supreme Court Rejects Church's Challenge to California's Coronavirus Rules (NPR)

 

Supreme Court, in 5-4 Decision, Rejects Church’s Challenge to Shutdown Order (New York Times)

 

Supreme Court won't force states to speed up church reopenings (USA Today)

 

Supreme Court Rejects Challenge to Limits on Church Services (VoA)

 

 

Sounds as if . . .

 

. . . the Court thoroughly considered the constitutional merits (and demerits) of limiting COVID pandemic religious gatherings, doesn't it?

 

 

In actuality, a thorough constitutional review is not what happened

 

The plaintiff's request for an injunction was decided on the legal grounds that set the standards for the burden of proof required in support of prohibitions (injunctions) — as opposed to, for instance, stays (temporary pauses).

 

The Constitution barely figured in the majority's opinion. Yet, not a word of this anticlimactic reality was apparent in the Lamestream's distortion of what the Court had said.

 

Absent facts and context, it is no wonder that the American public cannot think critically.

 

 

Here is what really went on

 

The church involved — South Bay United Pentecostal Church — was trying to overturn the California's (COVID era) emergency limitation of church gatherings to:

 

 

25 percent building capacity

 

or

 

100 people,

 

whichever is fewer.

 

 

The narrow legal question revolved around meeting the burden of proof required . . .

 

. . . to sustain an injunction — meaning an outright prohibition of the California order — as opposed (for instance) to a temporary stay, which itself would be subject to further and deeper legal review.

 

 

The church's appeal for an injunction swung for the legal fences . . .

 

. . . when it might instead have contented itself with encouraging the judicial system to take a less than all-or-nothing step.

 

Chief Justice Roberts (speaking for the majority) disposed of the injunction issue as follows — notice that his last sentence emphasizes the missed burden of demonstration:

 

 

Applicants seek to enjoin enforcement of the [California government] Order.

 

“Such a request [for an injunction] demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U. S. 996 (2010) . . . .

 

This power is used where “the legal rights at issue are indisputably clear” and, even then, “sparingly and only in the most critical and exigent circumstances.” S. Shapiro, K. Geller,

T. Bishop, E. Hartnett & D. Himmelfarb, Supreme Court Practice §17.4, p. 17-9 (11th ed. 2019) . . . .

 

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.

 

Similar or more severe restrictions apply 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.

 

And the Order 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.

 

The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.

 

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).

 

When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974).

 

Where those broad limits are not exceeded, they 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. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).

 

That is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.

 

The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

 

South Bay United Pentecostal Church v. Gavin Newsom, Governor of California, 590 U. S. ____ (2020) (application for injunctive relief) (29 May 2020)

 

 

Does Justice Kavanugh's dissent . . .

 

. . . raise the Constitutional issue that our Lamestream says was raised?

 

Yes, but no.

 

One cannot successfully engage in a thorough examination of a purported constitutional issue, under procedural circumstances in which the constitutional aspect is clearly not the legally overriding one.

 

That's the procedural trap that the church involved, and the Court's dissenting opinion, fell into.

 

 

Here is what the dissent says

 

Justice Kavanaugh argued that:

 

 

I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses.

 

Such discrimination violates the First Amendment.

 

The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.

 

To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Lukumi, 508 U. S., at 531–532.

 

California undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens.

 

But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam).

 

What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.

 

The Church and its congregants simply want to be treated equally to comparable secular businesses.

 

California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.

 

The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.”

 

California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment.

 

South Bay United Pentecostal Church v. Gavin Newsom, Governor of California, 590 U. S. ____ (2020) (application for injunctive relief) (19 May 2020) (Justices Kavanaugh, Thomas and Gorsuch dissenting)

 

 

Justice Kavanaugh certainly makes a superficially appealing argument.

 

 

However

 

Proving discrimination (as Justice Roberts warned) would be too difficult in this injunction-seeking procedural context.

 

The Court would have to go exactly into the fact-gathering and policymaking weeds, where American legal precedent says that it has no business going.

 

 

Dissent's reasoning error

 

Justice Kavanaugh assumes that the absence of a capacity cap on secular businesses, in view of the presence of one on churches, proves discrimination.

 

That is rhetorical hand-waving, without factual substance attached.

 

The church capacity cap arguably has more to do with the:

 

 

physical confines and shoulder-to-shoulder characteristic of American churches —

 

those traits combined with

 

choir and congregation hymn singing

 

both of which encourage an escalated aerosolizing of the SARS-CoV-2 virus —

 

than it does with a

 

necessarily discriminatory application of public health requirements.

 

 

If one can demonstrate that the public is more likely to catch COVID in setting A than B — would one not have a governmental interest in more specifically limiting the size of A gatherings?

 

Justice Kavanaugh just assumes that California cannot make an epidemiological distinction between religious and secular settings that would justify placing a numerically defined capacity cap on the first and not the second.

 

Kavanaugh's unwarranted blanket assumption in this regard — typical, in my experience, of non-scientifically trained lawyers — proves Justice Roberts' larger point.

 

Justice Kavanaugh's reasoning takes us exactly into the fact-finding and policy-making terrain that the Court is not well-equipped to go.

 

Point to Justice Roberts and the majority.

 

 

The moral? — Media stupidity makes us dumber

 

The Lamestream's distorted presentation of this Supreme Court opinion misleads us — regarding the narrow, but unavoidably pertinent principles upon which it was decided.

 

This is intentional. Keeping the American public ignorant and incapable of thinking critically is the Oligarchic Establishment's goal in this and other of its day-to-day propaganda efforts.

 

If we are prevented from knowing what is really going on (and why) — we have no ways of accurately seeing and efficiently changing the Reality that Ruling Oligarchy creates and dominates.