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Happy Monday,
What the world needs the Monday after Thanksgiving, during a state-imposed, and in some parts of Oregon, a literal freeze, is a Roundup. Plus, there’s a lot of Covid legal/political stuff going on. As Oregon’s fifth largest employer might say: Let’s do it.
Supreme Court Asserts Constitutional Limits to Pandemic Response
On Thanksgiving eve, the U.S. Supreme Court drew a line in the sand regarding Covid restrictions as applied to religious gatherings. In Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York, the Court stayed enforcement of New York Governor Andrew Cuomo’s order limiting religious gatherings to 10 or 25 people. The majority (5-4) opinion observed, dryly, that the order allowed more gathering in retail and other spaces than in religious spaces, and that disparity of treatment was not necessary to achieve the state’s compelling purpose of limiting spread of the virus. (Note the court was applying a higher standard here than the trial court did in the Oregon restaurant lawsuit last week, because, here, there is a specific enumerated right being abridged).
See, the First Amendment to the Constitution provides that Congress (later extended to the states via the post-Civil War 14th Amendment) “shall make no law . . . . prohibiting the free exercise of [religion.]” That’s right there in the First Amendment along with freedom of speech, freedom to assemble, and freedom to petition the government for a redress of grievances. It’s a really big deal, and courts have interpreted the “prohibiting” clause to mean, at the very least, the government can’t treat exercise of religion worse than other similar activities. Importantly, it doesn’t mean you can’t limit attendance at religious worship, it just means you can’t, well, discriminate against religious worship.
The majority is right, but I would bend your attention to my spirit animal who is Supreme Court Justice Neil Gorsuch. He joined in the majority opinion, but wanted to add his own rationale in a concurring opinion, which, I think, will define and predict a more strenuous defense of constitutional liberty, among some in the federal judiciary, against the more extreme Covid-related restrictions.
Gorsuch, like the majority but in more, ah, direct language, observes that what the governor deems essential, liquor stores, bike shops, etc., corresponds with “secular convenience.” Gorsuch continues, “Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.”
This, I think, is right. Governors have proven that responding to Covid involves mainly limiting behavior they don’t care about while privileging that which they do. Our core constitutional liberties, like free exercise of religion, is where the line must first be drawn.
What does this mean for Oregon? Governor Brown’s “freeze” rule, in effect through December 2, limits attendance for religious purposes to 25 people inside or 50 people outside, while limiting retail establishments to 75% capacity. That disparate treatment almost certainly would, if tested, be stricken down under the Roman Catholic Diocese precedent.
Come Thursday, when the new rules come into effect, the naughty county limit on indoor religious gatherings will be 25% of capacity or 100 total, while retail is limited to 50% of capacity with no hard ceiling. It’s entirely possible a church in Oregon could successfully challenge the limit. I wouldn’t be too surprised if Brown amends her limit to comport with the Roman Catholic Diocese decision.
It should be noted that the Supreme Court majority relied heavily on the fact that the religious institution plaintiffs in the case were heavily committed to adhering to distancing, mask-wearing and other prophylactic guidelines when ruling in their favor. Churches that flout those rules, which apply at least in theory to all gatherings equally, would almost certainly not fare as well in court.
Multnomah County to the rescue?
Which brings us to Multnomah County. The county has, to no one’s surprise, determined that there is no link between Portland Black Lives Matter and related protests and Covid spread. This in spite of frequent, obvious and unenforced violations of social distancing rules during the protests.
To say the least, I doubt that Multnomah County went out of its way to find a correlation because, frankly, the people that run the county and surely most of the folks who work for the county support the protestors and at least some of their political goals. But, fine, let’s assume the county is right and large gatherings outdoors among people talking and/or shouting, mostly masked but not socially distanced, don’t spread Covid.
This is good news. It means the state should remove limits for similar gatherings for other purposes. Outdoor sporting events and outdoor concerts come to mind, but there are probably others. The people making the rules governing our lives would gain a lot of credibility if they applied the lenience afforded activities they like to activities other people like.
As an aside, as a constitutional matter, any attempt to enforce Covid restrictions on protestors would have run into the same strict scrutiny the Supreme Court applied in Roman Catholic Diocese. That’s because the same First Amendment that protects the free exercise of religion also protects free speech, especially political speech. If you support the right to gather for religious purposes but not for speech purposes, or vice versa, you’re doing it wrong.
But this issue here is not one of rights, but of policy. Multnomah County is not saying the virus might spread at protests but we’re gonna let it go go because First Amendment. It’s saying the protests didn’t contribute to spread. A state government that wishes to afford its residents maximum freedom and something approaching sanity, should welcome this evidence that they may safely allow outdoor, masked gatherings, with or without social distancing requirements. Shoot, allow them WITH social distancing requirements if it makes you feel better.
Hang in there, friends!
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Jeff Eager
jeff@oregonroundup.com
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