LL - U have become quite fixated on the freedom of religion under the Constitution question.Normally, i agree with most of Ur stands - this I must disagree.
!st Amendment- "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
The SC has decided there are limits to "freedom of religion" - and Public Health is an area that takes precedence. One may not endanger the Public Health to practice a religion.. Public health Laws are "reserved to the States" - under the Constitution - and while each State has its own Public health Laws - there is commonality of purpose of these laws.
an Article-
These Churches Refuse To Close Over COVID-19. Does the Constitution Protect Their Right To Remain Open?
Religious liberty, public health, and the police powers of the states
Damon Root | 3.20.2020 12:30 PM - These Churches Refuse To Close Over COVID-19. Does the Constitution Protect Their Right To Remain Open?Religious liberty, public health, and the police powers of the states Damon Root | 3.20.2020 12:30 PM
State governments have responded to the COVID-19 pandemic by ordering residents to avoid gathering together in large groups, including gatherings held for the purpose of religious worship. Some churches are reportedly refusing to comply with such edicts and holding in-person religious services anyway. As the Associated Press
reports:
Rodney Howard-Browne, a Florida-based charismatic Christian pastor who prayed over Trump in the Oval Office in 2017, vowed not to stop services and encouraged worshipers to shake hands despite experts identifying that behavior as an easy way to spread the virus.
In Louisiana, pastor Tony Spell was warned by police Tuesday after holding a service that attracted hundreds and flouted a state ban on mass gatherings. Spell, who has claimed that his services also heal cancer and HIV, said that he would not permit "any dictator law" to stop worship.
Does the Constitution's guarantee of religious liberty protect the right of such churches to keep their doors open during a pandemic?
The First Amendment protects "the free exercise" of religion and "the right of the people peaceably to assemble." These are bedrock constitutional principles, deeply enshrined in American law and repeatedly affirmed by the U.S. Supreme Court. But the Supreme Court has also said that religious liberty does not trump all forms of government regulation, even when the regulation clearly impacts a specific religious practice.
In
Employment Division v. Smith (1990), Justice Antonin Scalia led the Court in upholding Oregon's power to deny public benefits to two individuals who broke the state's drug laws when they used peyote for sacramental purposes as part of a Native American Church ceremony. "We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," Scalia wrote. In other words, it would be one thing if the state specifically banned the use of peyote for religious purposes. But here the state banned its use for
all purposes and thus placed no particular burden on religious users. A "generally applicable" law of that sort, Scalia argued, does not qualify as an unconstitutional infringement on religious liberty.
Here's what that means in the present context: The traditional police powers of the states include the power to combat the spread of infectious diseases via quarantines and related health measures (though these powers are
not unlimited). Bans on large gatherings to prevent the spread of COVID-19 would likely fit that bill, at least in the short term. They would also likely fit the bill of "general applicability" as spelled out by Justice Scalia. Such bans apply to society at large and do not single out religious gatherings for closure. They would therefore likely pass muster under
Employment Division v. Smith.
Perhaps the key statement of Scalia - of the SC - who wrote -"We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate," Scalia
It is widely held principle that One may not endanger the health and/or well being of others, even in the pursuit of a religious practice. I think LL would not protest the prohibition of "baby sacrifice as part of a religious practice" - clearly State law supercedes the First Amendment - as the risk/consequence to a "baby" is far greater. Admittedly - an extreme example. The same with an individual infected with an infectious disease - which could be fatal- the State and local authorities have the right under the law to quarantine individual - even to prevent that individual from attending religious services due to the risk to uninfected individuals. Diseases -such as smallpox, typhoid fever, bubonic/pneumonic plague , poliomyelitis, and others are examples of diseases warranting quarantine. The wuhan virus has killed more than 15,000 people in the US - it qualifies as a Public Health hazard.
Of note - The ban on large gatherings is a General Ban - not a specific ban on religious gatherings. One is NOT prohibited from any religious practice under Public Health Laws - just gathering in large groups. many churches are hosting remote services by computer social media. I assume other religions are as well - No religions is singled out for the large gathering prohibition. One can pray, share services on social media, and practice One's religion freely. Under a Public Health ban of large gatherings applicable not only to religious gatherings, - but other large gatherings for any lawful purpose. .
After the virus has run its' course - large gatherings - including for religious services - will be permitted when Public health is no longer a concern.
LL - I recognize your concern. Agree with the concern. Hopefully this will allay some of your concern.
I do not feel the Countries' First Amendment rights are violated by the temporary Public Health generated ban on large gatherings. Your right to practice your religion is not substantially infringed on - over and above the standard of Public Health Protection.
If it were so violated - We would see a plethora of lawsuits directed to the SC, and perhaps even the Fascist DPST's might get on board - to protect the religiosity of their ideology. We are not seeing such SC cases.
Another part of the First Amendment - the "right of Assembly" - which can be generalized for the same purposes to assembly for a religious service. The same arguments apply - it is well established the the right of assembly is the right of "Peaceful" assembly. One cannot injure another citizen under this right. Infecting another person with a potentially fatal disease, or spreading that disease outside an assembly - is not covered as a "right" - as decided by the SC. I will not address the right of petition under this argument.
an article -
Interactive Constitution: Right to assemble and petition
The “right of the people peaceably to assemble, and to petition the Government for a redress of grievances” protects two distinct rights: assembly and petition. The Clause’s reference to a singular “right” has led some courts and scholars to assume that it protects only the right to assemble in order to petition the government. But the comma after the word “assemble” is residual from earlier drafts that made clearer the Founders’ intention to protect two separate rights. For example, debates in the House of Representatives during the adoption of the Bill of Rights linked “assembly” to the arrest and trial of William Penn for participating in collective religious worship that had nothing to do with petitioning the government. While neither “assembly” nor “petition” is synonymous with “speech,” the modern Supreme Court treats both as subsumed within an expansive “speech” right, often called “freedom of expression.” Many scholars believe that focusing singularly on an expansive idea of speech undervalues the importance of providing independent protection to the remaining textual First Amendment rights, including assembly and petition, which are designed to serve distinctive ends.
Assembly
Assembly is the only right in the First Amendment that requires more than a lone individual for its exercise. One can speak alone; one cannot assemble alone. Moreover, while some assemblies occur spontaneously, most do not. For this reason, the assembly right extends to preparatory activity leading up to the physical act of assembling, protections later recognized by the Supreme Court as a distinct “right of association,” which does not appear in the text of the First Amendment.
The right of assembly often involves non-verbal communication (including the message conveyed by the very existence of the group). A demonstration, picket-line, or parade conveys more than the words on a placard or the chants of the crowd. Assembly is, moreover, truly “free,” since it allows individuals to engage in mass communication powered solely by “sweat equity.”
The right to assemble has been a crucial legal and cultural protection for dissenting and unorthodox groups. The Democratic-Republican Societies, suffragists, abolitionists, religious organizations, labor activists, and civil rights groups have all invoked the right to assemble in protest against prevailing norms. When the Supreme Court extended the right of assembly beyond the federal government to the states in its unanimous 1937 decision,
De Jonge v. Oregon, it recognized that “the right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.”
The right of assembly gained particular prominence in tributes to the Bill of Rights as the United States entered the Second World War. Eminent twentieth-century Americans, including Dorothy Thompson, Zechariah Chafee, Louis Brandeis, John Dewey, Orson Welles, and Eleanor Roosevelt, all emphasized the significance of the assembly right. At a time when civil liberties were at the forefront of public consciousness, assembly figured prominently as one of the original “Four Freedoms” (along with speech, press, and religion). When, however, President Franklin Delano Roosevelt switched to a different grouping of “four freedoms” in an effort to rally support for American entry into WWII, assembly (and press) dropped out. Neglect of assembly as a freestanding right has continued ever since. In fact, the Supreme Court has not decided a case explicitly on free assembly grounds in over thirty years. But despite its recent state of hibernation, the freedom to assemble peaceably remains integral to what Justice Robert Jackson once called “the right to differ.”
