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Category: COVID-19

California Churches’ Legal Battle Over COVID-19 Restrictions: A Recap and Update for 2024
[dc]T[/dc]he pandemic may be winding down, but the legal skirmishes it sparked are far from over. In California, a new chapter in the saga of COVID-19 restrictions and religious freedom is unfolding in the courts. As 2024 progresses, the state’s churches continue to challenge the constitutionality of the public health measures that once shuttered their doors and silenced their congregations.

A Recap of the Battle

At the height of the pandemic, California implemented some of the strictest public health measures in the country. Among these were severe restrictions on indoor gatherings, which included places of worship. Many religious leaders cried foul, arguing that the state was unfairly targeting religious institutions while allowing other entities, such as grocery stores and factories, to operate with fewer limitations.

These grievances led to a wave of lawsuits. Notably, the Supreme Court of the United States intervened on multiple occasions, ultimately siding with the churches. In February 2021, the high court ordered California to stop enforcing a ban on indoor worship services, marking a significant victory for religious freedom advocates.

Recent Developments

Despite these high-profile wins, the battle is not over. In April 2024, a federal appeals court ruled against a California church’s attempt to revive its lawsuit challenging county-level COVID-19 restrictions. Calvary Chapel had argued that the rules imposed by Santa Clara County were discriminatory and violated their First Amendment rights. However, the Ninth Circuit Court of Appeals upheld a lower court’s decision to stay out of the case while state enforcement actions were still ongoing.

This decision underscores the complexities that continue to surround these legal battles. While some courts have ruled in favor of religious institutions, others have deferred, allowing state-level enforcement actions and public health considerations to take precedence. The outcome of these cases often hinges on nuanced interpretations of constitutional law and the balance between public safety and individual rights.

The Broader Implications

These ongoing legal battles have significant implications for the future of public health policy and religious freedom in America. On one hand, they highlight the judiciary’s role in scrutinizing government actions that may infringe upon constitutional rights. On the other, they raise questions about the extent to which public health emergencies justify temporary limitations on those rights.

In the context of COVID-19, courts have had to navigate uncharted waters. The virus’s unprecedented nature and the urgent need to control its spread led to rapid and sweeping government actions. As the immediate threat of the pandemic recedes, the judiciary’s evaluations of these actions will set important precedents for future public health crises.

Looking Forward

As we move further into 2024, it is clear that the legal ramifications of the pandemic will continue to reverberate. California’s churches are unlikely to relent in their fight against what they perceive as overreach by state and local governments. Each ruling, whether in favor of the state or the churches, contributes to the evolving landscape of constitutional law in the context of public health.

The outcome of these cases will not only affect the immediate parties involved but also shape the legal framework that governs the balance between public safety and religious freedom for years to come. As these lawsuits wind their way through the courts, they serve as a potent reminder of the enduring tensions and debates that define American democracy.

Links
June 13, 2024
Explainer: Supreme Court’s OSHA and HHS Vaccine Mandate Decisions

Last week, the Supreme Court found unconstitutional the OSHA vaccine mandate that covered the 84 million Americans employed by companies with more than 100 employees. In a separate but simultaneous decision, the Court found the health care worker vaccine mandate was valid. State and local vaccine requirements remain unaffected, and businesses can still apply vaccine requirements to employees and customers.

OSHA Mandate Case

National Federation of Independent Business v. Department of Labor, 595
U.S. ___ (2022) (1/13/2022)

Decision: https://www.supremecourt.gov/opinions/21pdf/21a244_hgci.pdf

86 Fed. Reg. 61551 – OSHA Mandate: https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard

Some people believe that the Court passed a judgment on the efficacy of the vaccine or of mandates in general. That is incorrect. The Court found that the Biden administration lacked the authority to put such a measure in place. In the Court’s words, the mandate” would significantly expand OSHA’s regulatory authority without clear congressional authorization.”

The Occupational Safety and Health Administration (OSHA) was created by Congress in 1970 as part of the Department of Labor to set and enforce occupational health and safety standards for employees.

At this point, the Biden administration did not attempt to enforce a vaccine mandate on all residents of the United States, employed or not, because there is no Congressional authority, and likely no constitutional authority, for such a broad-based nationalized mandate. Instead, the administration sought to use OSHA as a mechanism for applying it to employers that met the 100-employee threshold.

The Court did not address whether the vaccine works or is a good idea but found that the Biden administration lacked authority for the rule. The Court found that Congress did not give the Department of Labor the authority to establish “broad public health measures.” Even though COVID may be spread at work, it isn’t a risk unique to employment and spreads in many other places.

The 6-3 majority found that “Permitting OSHA to regulate the hazards of daily life – simply because most Americans have jobs and face those same risks while on the clock – would significantly expand OSHA’s regulatory authority without clear congressional authorization.” Furthermore, OSHA had never tried to enforce a similar mandate in the past.

The Court determined that even though there are downsides to not getting the vaccine, employers and state and local entities will have to weigh the risks and decide what they should do.

Incidentally, arguments that the OSHA mandate violated religious liberty rights ignore the specific language of 86 Fed. Reg. 61551 at 61552, which provided exceptions for religious or medical reasons.

The dissent (Breyer, Sotomayor, and Kagan) noted that the “temporary” OSHA mandate, which would last 6 months, made exceptions based on religious objections or medical necessity and it “does not constrain any employer able to show that its ‘conditions, practices, means, methods, operations, or processes’ make its workplace equivalently ‘safe and healthful.’” (see page 3).

Some businesses may have begun to enforce vaccine requirements in anticipation that the OSHA mandate would be upheld. While many businesses had no intention of requiring vaccines short of a governmental mandate, others saw value in requiring vaccines but leaned heavily on the Federal rationale when explaining it to employees. The Court’s reversal of the OSHA mandate underscores the reality that companies and other entities that want to require that their employees be vaccinated should develop independent rationales and vaccination policies, not simply “pass the buck” to the Federal government. So far, while OSHA may be unable to enforce vaccination requirements, there is no set limit on what individual employers may require after considering the benefits and risks of mandatory vaccination.

Health Care Worker Case

Biden v. Missouri, 595 U.S. ___ (2022) (1/13/2022)
Decision: https://www.supremecourt.gov/opinions/21pdf/21a240_d18e.pdf

Regulation: 86 Fed. Reg. 61555 – https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf

This case involved the Department of Health and Human Services, which administers the federal Medicare and Medicaid programs. This case involved a challenge to the November 2021 DHHS rule that healthcare providers ensure staff vaccination or testing as a prerequisite for Medicare and Medicaid funding. Like OSHA, the HHS regulations also permitted medical and religious exceptions.

HHS has long held healthcare providers to a higher standard of care than the standard to which OSHA held employers, requiring healthcare providers to comply with a wide range of specific conditions to receive funding. In this case, HHS argued that the mandate was necessary to protect patients from healthcare workers who could contract the virus and pass it on to other patients.

Justices Thomas, Alito, Gorsuch, and Coney Barrett dissented, arguing that the Biden administration failed to convince them that Congress gave HHS the authority to impose a vaccine mandate.

HHS Religious Exemption Language:

“[T]he new requirements in this IFC may also be required to provide appropriate accommodations, to the extent required by Federal law, for employees who request and receive exemption from vaccination because of a disability, medical condition, or sincerely held religious belief, practice, or observance.” https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23831.pdf

The Effect on Religious Accommodation

Both the OSHA and HHS regulations allowed for religious exemptions. The decision on whether to require COVID vaccines or testing will now rest with state and local authorities, which will vary in their vaccine requirements. For the time being, there is no national OSHA mandate, but there is one for healthcare providers that receive Medicare and Medicaid funding.

Practically speaking, the fact that HHS is requiring religious accommodation as part of its healthcare worker mandate, and that it ties this to Federal law, means that those seeking religious accommodation will have the benefit of the higher level protections available under the Religious Freedom Restoration Act (RFRA) that applies at the Federal level but not to state or local governmental regulations unless those governments have “RFRA-style” language. Similarly, the OSHA requirement had it lasted would have afforded individuals protection under WRFA but now they will only have whatever level of religious accommodation protection their state and local governments can provide. So, as in many other cases, those who were opposed to vaccine requirements should be careful what they wish for.

January 16, 2022
Biden OSHA vaccine mandate raises constitutional concerns

On Saturday, November 6, the 5^th Circuit suspended enforcement of the Biden administration’s vaccine mandate. The Biden administration does claim direct power to force the general public to receive the vaccine, but it intends to do so through employers. Last week, via the Department of Labor’s Occupational Safety and Health Administration (OSHA), the administration issued rules that require employers with more than 100 employees to vaccinate all employees, require weekly testing, or face up to a $14,000 fine per violation.

The purpose of this discussion is not to discuss the merits or problems with the vaccine or to discuss whether there are alternative ways for the government to compel compliance. But it is a discussion of whether the federal government can make individual corporations vaccinate employees.

As a civics refresher, Federal law is created by Congress and signed by the President. The Federal government has certain powers that apply to things between the states, such as immigration, bankruptcy, and patents. These rights are specifically enumerated, with the broadest being federal oversight of interstate commerce (like highways, hotels, and so forth.) If a state law affords more rights to individuals than federal law, then the state law is presumed to prevail. If there’s an explicit conflict between state and federal law, and the federal law applies to something within federal jurisdiction, then the state law is subservient to federal law. But no state can diminish rights that individuals have under the U.S. Constitution.

DepositPhotos.com

While OSHA has blocked employers from using certain materials, such as asbestos or other carcinogens, OSHA has not mandated individual employees to take vaccines. In this case, the OSHA requirement directly conflicts with laws in place in several states, 11 of which filed suit on Friday to block the OSHA requirement.

Congress established OSHA, but whether Congress envisioned OSHA as being pressed into service for a public health purpose is controversial.

It also potentially steps on the toes of state regulations in other areas of healthcare. The only method within the Constitution that the OSHA mandate could affect private companies not engaged in interstate commerce, such as an airline, is through the commerce clause. If a company has more than 100 employees but is not engaged in interstate commerce, the mandate could fail under this clause. For instance, in the past, federal attempts at gun control legislation failed because it did not meet the requirements for interstate commerce.

At the Cato Institute, Ilya Shapiro described these constitutional challenges and noted a third, the “necessary and proper clause.” In other words, the “federal government can’t now commandeer businesses to impose mandates on individuals that it can’t impose directly.”

Federal entities often make healthcare-related recommendations about diet and exercise, but they don’t require employees to exercise or eat certain foods while avoiding others. OSHA can’t even require employees to wear seatbelts or helmets even if people are driving on roads connected to roads in other states – those safety requirements are regulated by the state in which a person is driving.

In 1967, Congress tried to enact a universal motorcycle helmet laws that required states to require helmets in order to qualify for certain highway safety funds. Ten years later, Congress revoked the law and the states now decide. While the National Highway Transportaion Safety Administration (NHTSA) continues to recommend helmets and seat belts, Congress has left that to the discretion of the states. In fact, only 18 states and the District of Columbia have laws that require all riders to wear helmets.

When the powers of persuasion fail, governments will often resort to force – and it often starts with “good things.” While the value of the vaccines to combat COVID-19 is increasingly clear, the ability of the federal government to enforce a mandate outside its enumerated powers and outside of interstate commerce is weak at best.

November 7, 2021
Court refuses to block Maine mandate that allows medical but not religious exemptions

[dc]I[/dc]n a ruling released late Friday, the United States Supreme Court refused to issue a preliminary injunction to temporarily block a Maine rule requiring certain healthcare workers to take the COVID-19 vaccine or lose their jobs or medical practices and allowed for medical but not religious exemptions.

We learn about the merits of the argument from the justices who thought that the Court should have granted the injunction, and from two Justices, Barrett and Kavanaugh, who agreed with the denial of the injunction, but wanted to underscore that the merits case can still be brought forward and the Court can later decide whether to hear it.

When a party seeks injunctive relief, in this case to block the Maine rule, the Court considers whether that party “is likely to succeed on the merits.” There is no majority opinion in the case aside from a brief paragraph written by Justice Barrett and joined by Justice Kavanaugh. Justice Barrett contends that when asked to consider the likelihood of success, the Court should also consider whether it would decide to hear the case and not just jump ahead and make a preliminary ruling on the merits without full briefing and oral argument. Of course, in this case, the problem is that people in Maine could begin losing their jobs as soon as the law goes into effect.

Justices Gorsuch, Thomas, and Alito thought that the Court should have issued an injunction and wrote an 8-page dissent. Although they failed to convince two more justices to agree with them, with the Court ruling 6-3 against the injunction, their dissent is how we learn about the thinking of the Court on this matter.

[perfectpullquote align=”right” bordertop=”false” cite=”” link=”” color=”” class=”” size=””]“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” – The dissent.[/perfectpullquote]

They argue that because Maine’s law does burden the exercise of sincerely held religious beliefs, the State must satisfy a strict scrutiny standard. The religious argument raised by the plaintiff healthcare providers was that the Moderna and Pfizzer COVID-19 vaccines were developed through fetal cell line testing, and they also alleged that the Johnson and Johnson vaccine used “abortion-related materials” in its production. Maine had not contested this issue.

The dissenting justices noted that because Maine specifically said that the vaccine mandate was not absolute, certain individual exemptions were allowed but not religion, this discriminated against people who refused the vaccines on religious grounds. Other exemptions could be invoked if those who refused vaccines had a “written statement” from a doctor saying that the vaccine “may be” medically inadvisable. Wrote the dissenting justices, “That kind of double standard is enough to trigger at least a more searching (strict scrutiny) review.”
Additionally, the State could not present evidence that a person who was unvaccinated for secular reasons was less likely to spread COVID than a person who refused to be vaccinated for religious reasons.

“If human nature and history teach anything, it is that civil liberties face grave risks when governments proclaim indefinite states of emergency.” – The dissent.

They also argued that precedent in other COVID cases that emerged before the distribution of the vaccines showed that if any secular activity were treated more favorably than a religious activity, the strict scrutiny standard would be triggered. Nor did Maine indicate how other states could provide a religious exemption, but they could not. “Maine’s decision to deny a religious exemption in these circumstances doesn’t just fail the least restrictive means test, it borders on the irrational.”

The dissent clarified that if strict scrutiny were applied, Maine would need to show that the vaccine mandate was the least restrictive means of meeting its goals. By forcing people to close their professional medical practices or be terminated from employment, the dissent argued that they faced a irreparable harm.

Had the majority written a substantive opinion, we would have reviewed that in this space.

Does v. Janet Mills, Governor of Maine, 595 U.S. ____ (2021) (10/19/2021)
https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf

https://www.supremecourt.gov/opinions/21pdf/21a90_6j37.pdf

October 29, 2021
On the Vaccine and Religious Liberty

We have received more contacts from readers about the COVID-19 vaccine than any other since we went live in 2008. This is understandable because most religious liberty issues only affect a few people, but almost everybody reading this is being asked to take “the jab” or potentially face some dire consequences.

I read in an essay some months back that Americans are not a “compliant” people – the Declaration of Independence being Exhibit A, so it is not unusual for any request from government to be viewed with suspicion. I don’t believe that there is anything nefarious behind the rollout of the COVID-19 vaccine, but I will admit that the COVID-19 messaging has been botched and politicized from the beginning, and disentangling politics from the public perception of the virus, its origins, and its treatment is proving to be impossible.

I don’t believe, in my theological framework, that the virus or vaccine itself has anything to do with the “Mark of the Beast.” For the uninitiated, the Mark of the Beast is referenced in Revelation 13 as a future economic limitation on the ability of people who do not accept the “mark” to buy or sell anything.

There is debate in Christianity about what the “mark” will be, with some believing it to be strictly spiritual even if it is manifested in a tangible limit on engagement in commerce. Others believe that it will be a literal mark. While there may be uncertainty between groups about what the mark is, there is no question that proof of a vaccination is quickly becoming a license to work, attend events, or even obtain other forms of healthcare. Until the past twenty years or so, the infrastructure necessary to enforce a global restriction on commerce was impossible, but today on the Information Superhighway, everything an individual does with relation to money and healthcare, along with personal contacts and communication is recorded on vast databases that can be accessed by authorities around the world.

We are no longer living in an age where technological domination is just an idea. The use of government power, and increasingly private corporations acting at the behest of governments, to block people from participating in commerce is now the default position. It takes great restraint by leaders not to use this available power to compel ordinary people to act in certain ways or face an insurmountable barrage of consequences.

I’ve talked to many people about the vaccines, and while I believe they are useful to stop or reduce the effects COVID-19, what I’m seeing is that most people are very concerned about letting this type of intrusion go unchallenged. So for those who are concerned about what is forming in government, and what might come next, I see you. I just don’t buy the idea that there is some spiritual nobility to not taking the vaccine, and I don’t resonate with the concept that those who refuse it are standing firm on principle and not eat the foot offered to idols like Daniel and his friends in Daniel 1, or when they refused to bow to Nebuchadnezzar’s statue as both things would have violated clear Biblical mandates. Vaccines don’t.

I do agree that the messaging on COVID-19 has been inconsistent and does not inspire confidence. Last year at this time, if you suggested that it came from a lab in Wuhan, China and not from somebody eating a bat sold at an outdoor market, you would be censored. But now the concerns about lab experiments on “gain of function” research, involving the passage of a virus from one host species to another, have entered the mainstream, and it is no longer considered unreasonable to ask questions about the origin of the virus. But that enforced silence created a reasonable sense of distrust.

It became a political issue last fall during the vice presidential debate in 2020, then-candidate Kamala Harris laughingly said that she would take a COVID-19 vaccine if doctors said if it was safe but not if Donald Trump said to take it. https://www.youtube.com/watch?v=-dAjCeMuXR0 While it may have been a joke, many Trump supporters instantly connected the concept to their politics, and many who think the election results were illegitimate have resisted taking the vaccine, because it feels like they are conceding electoral defeat.

Whether masks are necessary also seems to be an issue. Early on in the pandemic when masks were scarce, Dr. Fauci recommended against ordinary people wearing them, later admitting that he said this because health professionals needed them. Then he said they were needed, and at one point suggested wearing more than one mask. Dr. Fauci’s paternalistic untruths early on may have worked in an earlier era when authorities could routinely mislead people “for their own good” but in an age of mass communication, people immediately questioned his narrative and he has lost most credibility with many people as a result.

Then there is whether a person who has had COVID-19 is now immune to it. Early on, the government said that we needed to “flatten the curve” for a couple of weeks so that hospitals were not overwhelmed with people with the virus. Many would eventually get the virus and recover with full immunity, but the most severely affected patients who required hospitalization would have plenty of beds available for them. Now, the concept of natural immunity is treated as a conspiracy theory.

Whether the vaccine is effective has not been consistently communicated. Early on, we were told that it would be a one or two-shot thing, depending on the brand of the vaccine, and you’d be done. Now there is talk about booster shots, and regardless of your vaccination status, you still have to wear a mask. Yet schools that were closed last year are now open, and people are out and about even though the message is that conditions remain dangerous and that the best thing to do is to stay home.

I could go on and on about the inconsistency in the vaccine messaging, but most people have probably thought about it and discussed it ad nauseam with friends and family members.

From what I’ve read, the vaccine seems to be effective and is reducing serious threats to health. I had both Pfizer injections as soon as they were available to me, and this was before the “religious liberty” arguments started coming out.

Religious liberty is something that we will always work to uphold, and I recognize that it is the argument of last resort for those who understandably question what is happening. I’ve worked on religious accommodation issues for many years, and this time people who haven’t darkened the door of a house of worship in many years are suddenly asserting that there is a faith-based reason to object to the vaccine. I won’t begrudge those who make those arguments, but I won’t be making them myself because I don’t think the vaccine arguments have a reasonable basis in actual faith, and I cannot represent that they do. I know that some of you will stop reading this essay now that you’ve read that, so I’ll end here.

October 6, 2021
COVID-19 and Texas – Of Vaccines, Abortion, Privacy and Bodily Autonomy

Two major stories about what power the government has to control what happens inside a person’s body are making headlines this week.

The Courts are Unlikely to Require Religious Accommodation When it Comes to Avoiding the COVID-19 Vaccine

The Delta variant of COVID-19 has been wreaking havoc around the world – and part of the reason is that this is a controversial statement. Over the past year-and-a-half it seems that most people on social media have earned both their medical and law degrees. For the most part, churches and businesses are open now, and the question is whether they will (or can) require people to wear masks or take the COVID vaccine.

From a liability standpoint, businesses will likely want to ensure that they are operating safely. Last March, Matilde Ek, 70, an employee of the See’s Candies factory in Carson, California, contracted COVID-19 at work and stayed home. In the process, she allegedly passed the disease to her husband, 72, who died from it. She also claims to have passed the virus to her daughter who survived. She alleged in her complaint that “Defendants knew and should have known that their failure to take appropriate and necessary safety mitigation measures would increase the known and foreseeable risk that their workers, like plaintiff, would become infected in the course and scope of their work for defendants, and carry said viral infection home infecting one or more of their family members.”

At the time of the exposure, in March 2020, the employer was not requiring social distancing or mask wearing, according to the pleadings. That’s enough to create an issue of fact to be tried.

Many organizations are very concerned that extending the employer’s liability beyond the employee to civil liability for family members could incur significant cost, and the employers along with the California Chamber of Commerce, are arguing that this violates the “derivative injury rule” that could keep the case within the limited liability jurisdiction of the workers’ compensation system rather than civil litigation.

Why am I mentioning this case? Because a lot of people are seeking “religious accommodation” of all COVID-19 restrictions from being required to wear masks, to social distance, to being vaccinated. Under the decision that we have often cited, Trans World Airline v. Hardison (1977), the Supreme Court held that so long as an employer incurs an “undue hardship” that constitutes a “di minimis cost or expense” in providing religious accommodation, it need not accommodate, even in the unlikely scenario that it is established that none of these preventive measures work.

The bottom line is that even if a person can build up a religious case for not participating in COVID protections, employers and public venues will likely never be ordered by the courts to provide religious accommodation.

Speaking of religious accommodation –since religion is the “last ditch effort” to evade COVID-19 rules for those who cannot obtain a medical exemption, many people are suddenly very interested in what their religion teaches about COVID. The reality is, few will find a home for this notion in their religious texts or in their past activities. People who believe that the vaccine contains fetal human cells or derivatives have the wrong facts. While it is true that the vaccines were tested on a strain of HEK-293 derived from kidney cells from the 1970s, those cell lines have been cultured and are used to test almost every medication available today over the counter including Motrin, Advil, Pepto Bismol. Even Hydroxychloroquine and Ivermectin have been tested using the HEK-293 lines.

But even more concerning should be the fact that people are propounding a “religious accommodation” argument that is virtually guaranteed to fail – and in so doing may weaken legitimate religious accommodations efforts in ideas that do find their home in religious texts, including holy day observance, labor union exemption, religious dress requirements, military conscientious objection and other areas. In each of those areas, those seeking accommodation are often accused of trying to get out of doing something they don’t want to do (like working on Saturday, paying union dues, or frontline combat), and their motives are questioned. When they add something that is on its face an attempt at a legal workaround, it weakens legitimate religious accommodation requests significantly.

I realize that some people will oppose this, “How dare you judge the sincerity of my ‘religious belief’” but it may be better to judge now than wait until the courts do so. If the courts decide to investigate sincerity, based on a clear intent to circumvent the law by appealing to a religious exception, they could set up a system for evaluating sincerity or outright deny the accommodations. In the end, we could find that religious accommodations we have worked in favor of for decades are severely hampered.

If people want to find a legal argument to overcome TWA v. Hardison and other lawsuits, they may do better with a “privacy right” or “bodily autonomy” law.

Supreme Court Decision in Texas Case Could Weaponize Cancel Culture in Blue States

Speaking of privacy rights and “bodily autonomy,” for a few reasons I will outline briefly below, a Supreme Court decision not to act may cause both red and blue states to consider new laws that will give private individuals the right to file lawsuits against people who act within recognized constitutional rights.

Before I go further, let me state the caveat that the constitutional and moral status may be different. But the law is beholden to legal precedent, while morality is accountable to a much Higher Authority.

To continue – under this scenario, a blue state could theoretically pass a law that allows people to sue others for owning firearms or to sue people for “offensive” speech and weaponize “cancel culture” by giving social justice warriors the ability to file lawsuits to compel speech.

When I first heard that Texas had passed an abortion law that would deputize private citizens to sue people involved in individual abortions after six weeks for up to $10,000 and receive attorney fees if they win, and that defendants would be unable to get their fees if they won, I thought it was a legal “poison pill.” I thought that there was no way that the law would stand in the courts and that it may have been written this way to appease pro-life activists but be “too strong” to be upheld.

To my surprise, the U.S. Supreme Court did not issue an injunction (by an apparent 5-4 ruling), and the law is now in effect. The Court reasoned (we see this only as it is reflected in the dissent) that since nobody had filed a case allowed by the statute, there is no issue “ripe” for litigation.

Another case scheduled for hearing this fall at the Supreme Court will take direct aim at Roe v. Wade. The Court could have issued an injunction before the other case was heard and then addressed the whole issue at once. In that case, Dobbs v. Jackson Women’s Health Organization, https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/ the state of Mississippi passed a law in 2018 that banned almost all abortions after 15 weeks of pregnancy. Lower courts have blocked the law, citing Roe, and the Supreme Court has agreed to hear the case this fall.

Remember that Roe v. Wade was a decision that targeted states that prohibited abortion – it did not affect states where abortion was already legal. If Roe v. Wade is overturned, some states will immediately outlaw abortion, while others will keep abortion legal.

The enforceability of abortion laws is a significant problem – and the reason that Roe v. Wade was heard in the first place was that Texas had passed a law in 1854 criminalizing abortion, except by “medical advice for the purpose of saving the life of the mother.” Roe had sought an abortion, and a physician arrested for performing abortions – and the doctor had said that he could not tell whether the reasons for the abortions fell within the “saving the life” exception. He claimed that the law was “vague and uncertain” and violated the right to doctor-patient confidentiality when the state investigated his rationale.

Although abortion is typically seen as involving one person – the pregnant woman – the interests of the father in his offspring or not paying child support, the interest of the life rights of the unborn child, and the government’s interest in preserving life and health come into play.

Similarly, when it comes to vaccines, there are many interests at play, including those who do not want to work near somebody who may give them the virus, the interest of the individual in bodily autonomy and privacy, and the interest of the state, workers’ compensation, and health insurance companies in avoiding unnecessary death or medical costs.

The Venn Diagram of support for vaccine autonomy and abortion rights would likely be quite interesting. Some may support both, some neither, and some one or the other. But it will be interesting to see where this goes next – and we will continue to follow these stories.

Thank you for reading.

September 6, 2021
Biden administration and Klobuchar bill to restrict freedom of speech online

“Once a government is committed to the principle of silencing the voice of opposition, it has only one way to go, and that is down the path of increasingly repressive measures, until it becomes a source of terror to all its citizens and creates a country where everyone lives in fear.”

― Harry S. Truman[Special Message to the Congress on the Internal Security of the United States, August 8, 1950]

[dc]C[/dc]iting health and safety concerns, Minnesota Senator (and erstwhile presidential candidate) Amy Klobuchar introduced a bill on Thursday, July 22, 2021, dubbed “The Health Misinformation Act of 2021” that would hold tech companies responsible for allowing misinformation about vaccines and other health issues to spread online. In other words, if you say something about COVID-19 or vaccines or anything else that could be seen as “incorrect,” big tech would now have a legal obligation to censor you.

For the record, this writer is pro-vaccine. This is based on the fact that it appears increasingly likely that the virus escaped a lab and that masks aren’t going to stop the virus, coupled with the fact that very few people who have had the vaccine contract COVID compared with those who don’t are some reasons why.

But that is my opinion and for the time being, you can say that you disagree with me. And I can tell you that you’re wrong and you can tell me that I am wrong. Since I happen to agree with the “accepted science” on this subject, perhaps one day soon, only my voice will be heard and yours will be silenced. If you insist on sharing your opinion you may be forced off social media by the law. That idea frightens me and should terrify you as well. We need to stand for free speech.

It was not long ago that people of all parties would say, “I may disagree with what you say, but I would defend to the death your right to say it.” That idea needs to stay alive.

Klobuchar’s bill, if it passes, will have a chilling effect on free speech and could spread to other issues as well. And we know that the government’s messaging on COVID has been inconsistent. Both parties have been interested in trying to use the power of government to stop people from talking, including attempts to limit journalism during the last administration.

Klobuchar’s most recent foray into limiting free speech isn’t the first time she’s tried to stop people from criticizing politicians or advocating for or against legislation. In 2018, she promoted legislation called the “Honest Ads Act,” stating it was “important not just because of Russia, but because of all of the shenanigans that go on in campaigns that you want to be able to police.”

The government has already begun policing what people say on Facebook. Last week, White House spokesperson Jen Psaki said this:

“In terms of actions we are taking or that we’re working to take, I should say, from the federal government, we’ve increased disinformation research and tracking within the surgeon general’s office. We’re flagging problematic posts for Facebook that spread disinformation.”

Psaki also suggested there is a list of 12 people who are spreading “false information” on Facebook, but she did not identify them. Three days later, Psaki said, “But again, this is not about one platform. This is about misinformation that we’re seeing travel around, into the minds — the inboxes, the minds, the — of individuals, of people around the country — inaccurate information that is preventing people from taking the step to getting vaccinated. And that is, of course, a public health concern for us.”

In other words, the White House is actively suggesting that a private network act to block or censor certain viewpoints. This is much bigger than the topic of whether vaccines or masks are a good idea – and for the record I believe in vaccines and masks lest somebody add me to that list. But we need to be very concerned that the White House, no matter who is in control or what the subject is, is actively trying to suppress the expression of certain ideas. This will spread to “political untruths” about elections, political beliefs, financial viewpoints, and expression of religious beliefs.

When NBC’s Peter Alexander asked President Biden, “What is your message to platforms like Facebook?”” the President replied, “They’re killing people. The only pandemic we have is among the unvaccinated, and they’re killing people.”

A couple of days later, President Biden tried to walk back the comment and said, “Facebook isn’t killing people” and that they shouldn’t be “taking it personally that somehow I’m saying Facebook is killing people.”

It may be time for people to seek out alternatives than the big social media companies because this is not going to get better. Despite the gravity of the situation, apologists for the current administration who decried the prior administration’s “tyranny” are claiming that these restraints on freedom of speech are “necessary.” It will always be necessary for someone, somewhere to block what people say.

Whenever people demand that the government use force to squelch ideas because persuasion isn’t working, that is a sign that major problems are on the way.

Stay tuned.

July 23, 2021
California agrees to stop enforcing restrictions on churches and to pay church attorney fees

After a year of litigation, the state of California is ordered to back down and pay the attorney fees of a church that had to defend its civil right to meet.

On May 17, U.S. District Court Judge Jesus Bernal entered an order approving a settlement between the State of California and Harvest Rock Church. Included in the settlement is a state-wide injunction against COVID restrictions on churches and places of worship. California has agreed to stop issuing or enforcing regulations issued in connection with COVID-19 that impose any capacity or numerical restrictions on religious worship services that are more severe than restrictions imposed on other similar gatherings of similar risk.

This settlement was nearly inevitable following U.S. Supreme Court decisions in several cases, including Tandon v. Newsom, South Bay United Pentecostal Church v. Newsom, Harvest Rock Church, Inc. v. Newsom, and Roman Catholic Diocese of Brooklyn v. Cuomo, that overturned restrictions that treated churches differently than other similarly situated entities

The order further blocked the state from enforcing any restrictions on the religious exercise of singing and chanting during religious services, other than guidelines generally issued for performances or similar activities.

From now on, the state can make recommendations but must make it clear that they are voluntary and not enforceable.

Finally, the court ordered the state to pay Harvest Rock Church in Pasadena, California, $1.35 million for the “reasonable attorney’s fees and costs necessarily incurred in this case.” (For those interested, the statutory authority for the fees was the declaration that the Plaintiffs were the prevailing party under 42 U.S.C. section 1988 “Proceedings in vindication of civil rights.”)

This is a win for religious liberty and the idea that the state could block churches from opening simply because they were houses of worship is clearly unconstitutional. Churches are essential as a matter of law.

Unfortunately, on the other end of the United States, a church in Maine has filed a motion with the U.S. Supreme Court seeking to block Maine from enforcing capacity restrictions. According to the petition, “Maine imposes the most severe restrictions in the country on churches and places of worship.” Calvary Chapel of Bangor, Maine is represented by Liberty Counsel, the same legal group that successfully represented Harvest Rock Church in the California case.

May 24, 2021
California lifts location and attendance limits on churches following Supreme Court ruling

“It is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.”

James Madison – Memorial and Remonstrance against Religious Assessments.

[dc]F[/dc]ollowing Friday’s Supreme Court ruling in Tandon v Newsom, the state of California has lifted restrictions on the number of attendees and location of religious services.

The state had previously placed percentage limitations on congregations and had attempted to ban in-home religious gatherings. The Supreme Court had issued several rulings throughout the pandemic that applied “strict scrutiny” analysis to limits on churches. In other words, the state needed to demonstrate that the state narrowly tailored the limitations to achieve a particular goal. In the cases, the Supreme Court routinely found that houses of worship had been placed under more restrictions than comparable secular businesses.

“The virus is real, and it is the job of churches, synagogues, mosques, and other houses of worship to take steps to keep congregants safe. It is good to see that the state of California finally recognizes what the Supreme Court has told them five times – that the free exercise of religion is a constitutional right that the state cannot easily take away,” said Michael Peabody, President of Founders’ First Freedom.

Peabody continued, “This is the lesson of the Pandemic – it shows how easy it is for states to attempt to take away constitutional rights. If the Supreme Court ruled differently, it would have created a precedent that the state could significantly limit a key component of the Bill of Rights for any reason that could be remotely categorized as promoting ‘health and safety.’”

Limits will remain in place on singing in some areas of the state since the Supreme Court ruling had focused on attendance limits and locations.

In its defense in Tandon v Newsom, California had noted that it would be lifting restrictions on churches effective April 15 but wanted the ability to reinstate restrictions as necessary.

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Founders’ First Freedom is a non-profit organization dedicated to advocating for the First Amendment principles of the free exercise of religion and separation of church and state.

April 12, 2021
LA County recognizes churches are constitutionally exempt from stay-at-home order

The new Los Angeles COVID restriction language specifically exempts religious gatherings as a matter of constitutional right.

On December 1, Los Angeles County instituted a new “stay-at-home” order that specifically exempts religious services and protests from the restrictions.

According to the new rules, which generally increase restrictions on non-religious activity, “All public and private gatherings with individuals not in your household are prohibited, except for church services and protests, which are constitutionally protected rights.”

Los Angeles County, which is the most populous in the United States, had been involved in litigation with several religious congregations who had argued that the existing restrictions violated constitutional rights to assembly and free exercise of religion. The County had imposed thousands of dollars of fines on several congregations, including Grace Community Church.

After the Supreme Court issued its ruling in a New York case on the night before Thanksgiving, it became clear that the majority of the Court believes that churches have an equal protection argument for meeting in line with other businesses and have a specific constitutional right to do so.

Rather than continue to press the issue and face an increasingly likely failure at the United States Supreme Court, it appears that Los Angeles County has decided to recognize that religious congregations do indeed have a constitutional right to meet.

Although it was a preliminary injunction, the Court’s ruling last week in Archdiocese of Brooklyn v. Cuomo will have broad-reaching effects. It required the state to demonstrate a compelling state interest to restrict the free exercise of religion. Before that, under Employment Division v. Smith, the government would have to show that it treated everybody equally and did not treat churches worse than other businesses. This ruling might have the long-needed effect of restoring pre-Smith free exercise jurisprudence to the states.

The new Los Angeles COVID restriction language specifically exempts religious gatherings as a matter of constitutional right. Other local and state governments will likely follow suit and stop making threats of fines or even incarceration for pastors. At the same time, churches should address the risks with wisdom and not take unnecessary risks with attendees and surrounding communities’ health during the COVID-19 pandemic.

December 2, 2020