It’s not my interpretation - it’s how a court would review it. I’m not making these standards up based on my opinion.
No, you aren’t - this rule applies whenever court is in session, during which most of the time a jury isn’t impaneled. The reason you can’t do it is to fulfill the policy of orderly justice and create a quiet place to do business, not because an individual’s right is being violated. That’s a garden variety neutral-application rule that restricts your freedom of speech, but doesnt violate your 1A rights.
So, your rebuttal - that it isn’t a violation only because it first violates some other right - doesn’t work.
You’re right, because it’s a rule of neutral applicability.
That is incorrect, as shown above. And that’s just onw od many examples. There are all kinds of time/place/manner restrictions on speech that aren’t 1A violations. (Another example, you can’t run a sound truck promoting your favorite political candidate at 100 decibels at 2am in the morning. A restriction of speech? Surely. A violation of 1A? No.)
The taxes on church employees is another example is in the exact same vein. So is not permitting a Native American church the use of peyote (which is the case that made this stuff famous).
Yes - and it belongs to your governor, subject to your state law.
I’m good with that, I just think exercising emergency powers =/= acting outside his authority. It can, because it can too far - but governors have had the power to do this stuff since the days of horse drawn carriages. And they should be able to do this stuff.
The simple solution to all of this, from both sides is to create a cheap, effective, comfortable mask easily available to the general population.
If you want to be safe and look dorky (think bulky knee and elbow pads to bike to the pub), you wear it everywhere. If you want to look rebellious and and trashy (think barbwire bicep tat and No Fear cutoff) you never wear it. But either way, your rights aren’t infringed and you can still be safe if you want to be.
This whole mess (health and economic) could likely be seriously mitigated by a huge surplus of N95 masks. There is also a likely huge opportunity for a company to mass produce (and correctly market) washable, stylish N95 masks/scarf/buff/balaclava thing. I can see it becoming an accessory like a baseball cap, beanie, or scarf.
Or you can grow up and learn how the world really works. The choice is yours. Leading a horse to water, etc.
Exercising emergency powers like this are not new and not legally controversial. Of course they can overreach, and there are courts and elections to protect against that, but this histrionic panic that looneytarians have that “the statists have invaded!” is, as usual, pure hysterics.
I’m not sure if these orders would be overturned based on the Smith test or would fall under the Sherbert exception rules; however, the cases I have seen have one thing in common. The application of the law/order/ordinance is universal. Take the peyote case itself, Oregon’s drug laws applied across the board to everyone. I.e. no one was excluded. That is not the case with these orders. These orders specify exemptions based largely on the Governor’s discretion.
I often forget that the law takes easy to understand language like “neutral application” and turn it into something completely stupid, but I digress… Could a law argue there is intent, explicit or implicit, to discriminate religion? I’m not sure, it seems difficult to see how one could argue, in this specific case, that religion is specifically being discriminated against, but I’m now a lawyer (thankfully).
My argument isn’t that he can’t exercise emergency powers it is that he and many have gone too far.
We obviously don’t agree on this, lol, so I’ll just leave it alone.
Let’s assume all lockdowns are lifted and there is a resurgence of the virus. It could be equal to it’s spread in March, or much worse. Would lockdowns be imposed again and how well do you think people would follow them?
Is there a rational reason not to have a rule that says people can’t congregate in groups of 10+?
Is the no-10+ rule being applied in neutral fashion among those things that aren’t excepted for other rational reasons (like hospitals or grocery stores)? As in, are churches being treated the same way as concerts, sporting events, trade shows, band practice, house parties, summer camps, gyms, movie theaters, etc.?
If the answer is yes to both, then no, there is no discrimination against churches and no 1A violation.
(And by the way, as an aside, it’s times like this that show that the Right are just as much in favor of judicial activism as the Left.)
Getting arrested for breaking a law isn’t that stupid IMO.
The reason dude was alone out there is because it is currently illegal. Socal lineups at popular breaks are super duper crowded normally… They’d be crazy with so many folks off of work. If you let one guy get away with it, a few of his buddies will go out out with him tomorrow, and a few days from now you’ll have 50+ person lineups at every break from Santa Barbara to baja. Same with beaches, trails, ski resorts, etc.
My bad, thought it was in socal. Same general logic applies though.
I wasn’t able to find a case where the law/ordinance/EO had exceptions in its application like many of the stay home EOs do. Are you aware of one?
I do think there is still a question as to whether there is implicit discrimination in the EO towards religion. I’m not sure that argument can be made in Maryland; however, once you take into account all of the businesses specifically closed in the latest EO there are very few left that are affected by the “large gathering” language. I think you could make the argument the EO was written this way as to close religious services without specifically ordering the closure of religious organizations. I don’t know if it would win, but I think that’s the logical argument to make.
One could argue the Peyote case was judicial activism even though it was Scalia, I believe, that wrote the majority opinion. My understanding is it overruled all prior jurisprudence and basically re-wrote how the Free Exercise clause is interpreted/tested.
You’ve got a resident (according to the site, let’s take it at face value) enjoying the ocean near his residence. I can see closing the beach to visitors, and barring large gatherings. But that’s taking things beyond the bounds of common sense.
How can there be implicit discrimination when virtually all other gatherings of 10+ people are being treated the same way? That’s the opposite of discrimination.
EDIT: I just read the MD order you provided (Article 3), and that’s about as neutral as it gets.
I don’t know of one offhand - these actions dont come up much and aren’t challenged much either - but it’s a distinction without a difference. Every part of an order like this would have to hold up to rational basis, and exceptions can be rational. I don’t see your point - there’s no part of “rational” that says you can’t have exceptions and everything has to be mindlessly uniform across all categories regardless of facts in the ground. As long as the exceptions are rational, too, it’s not anything that defeats the order.
To me the exceptions seem to all come down to things that are considered essential. If a religious organization wants to remain open, I see the burden of proof that they are essential belonging to them.
It’s unfortunate common sense isn’t being used by some cops. Kinda like turning a blind eye to j-walking, or someone going 5mph over the speed limit. This is a situation where they should be enforcing the intent of the law, not the letter of the law. But then again, maybe they tried to.
Tough situation all around. That said, the civilian brought this on themselves by knowingly violating the order. And I’d wager quite a bit that the civilian gave the cops quite a lot of attitude/pushback which forced their hand. That’s pure speculation on my part, but the kind of person who brazenly defy authority in one way, typically don’t respond calmly to authority telling them to stop.
