SCOTUS CASE & Other Fun Things..
Nov. 28th, 2020 12:09 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
shadowkat1. So, here's the SCOTUS decision regarding ROMAN CATHOLIC DIOCESE OF BROOKLYN,NEW YORK v. ANDREW M. CUOMO,GOVERNOR OF NEW YORK ON APPLICATION FOR INJUNCTIVE RELIEF for those remotely interested in Constitutional Law.
Some background? In late February/early March it came to the New State Department of Health's attention that there could be an outbreak in NY. They looked into it - and discovered that a lawyer came down with COVID. No clue how he got it - but he managed to infect over 1000 people in New Rochelle. How? They traced it - and discovered that he had attended three functions: a birthday party, a synagogue, and a funeral. At each function - he infected every person there, and they went on to infect everyone they knew. Resulting in a major outbreak - that in turn may or may not have been responsible for over 10,000 deaths.
As a result of this - it was determined by the State Department of Health to restrict houses of worship to 50% capacity, and when outbreaks still occurred to even less. Across the state.
The Catholic Diocese of Brooklyn (which I was a member of in the 1990s, but stopped a long time ago, and converted to Unitarian Universalist in roughly 2010) filed the lawsuit. And it went all the way up to the Supreme Court of the United States, and is the first reviewed by the new court, with the newest appointee, who just happens to be a conservative Roman Catholic.
To add a new wrinkle to this... Pope Francis, the leader of the Roman Catholic Church, recently blasted critics of COVID restrictions based on personal freedoms in an NY Times Op-Ed
And one more wrinkle - the Agudath Israel of America, et al. v. Cuomo, the Hasidic Community, filed a similar case. NY is having issues with this community - it can't keep them safe. Both communities that filed the lawsuits reside in Brooklyn. Williamsburg, and Southern Brooklyn.
Brooklyn has had over 86,000 cases to date, and over 7,000 deaths. The majority of cases have been traced to large gatherings, funerals, weddings, worship, parties, indoor dining and bars. NY State to date - has done everything within its power to crack down on large gatherings with mixed results.
With the above in mind - here's the excerpt from the Court's opinion.
The application for injunctive relief presented to JUSTICE BREYER and by him referred to the Court is granted. Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be de-nied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
* * * * * *
This emergency application and another, Agudath Israel of America, et al. v. Cuomo, No. 20A90, present the same issue, and this opinion addresses both cases. Both applications seek relief from an Executive Order is-sued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applications, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated 2 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO Per Curiam entities, contend that these restrictions violate the Free Ex-ercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue ap-pellate review.
Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerry-mandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.
The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).
Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential. Likelihood of success on the merits. The applicants have made a strong showing that the challenged restrictions violate “the minimum requirement of neutrality” to religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993). As noted by the dissent in the court below,statements made in connection with the challenged rulescan be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ” ___ F. 3d ___, ___, 2020 WL 6750495, *5 (CA2, Nov. 9, 2020) (Park, J., dissenting). But even if we put those comments aside, the regulations cannot be viewed 3 Cite as: 592 U. S. ____ (2020) Per Curiam as neutral because they single out houses of worship for especially harsh treatment.1
In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as es-sential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for De-termining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026.
The disparate treatment is even more striking in an orange zone.While attendance at houses of worship is limited to 25 per-sons, even non-essential businesses may decide for them-selves how many persons to admit. These categorizations lead to troubling results. At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could “literally have hundreds of people shopping there on any given day.” App. to Application in No. 20A87, Exh. D, p. 83. Yet a nearby church or synagogue would be prohibited from al-lowing more than 10 or 25 people inside for a worship service. And the Governor has stated that factories and schools have contributed to the spread of COVID–19, id., Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records.
Because the challenged restrictions are not “neutral” and —————— 1Compare Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 29) (directive “neutral on its face”). 4 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO Per Curiam of “general applicability,” they must satisfy “strict scru-tiny,” and this means that they must be “narrowly tailored” to serve a “compelling” state interest. Church of Lukumi, 508 U. S., at 546. Stemming the spread of COVID–19 isunquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “nar-rowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come be-fore the Court,2 much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services. The District Court noted that “there ha[d] not been any COVID–19 out-break in any of the Diocese’s churches since they reopened,” and it praised the Diocese’s record in combatting the spreadof the disease. ___ F. Supp. 3d ___, ___, 2020 WL 6120167, *2 (EDNY, Oct. 16, 2020). It found that the Diocese had been constantly “ahead of the curve, enforcing strictersafety protocols than the State required.” Ibid. Similarly,Agudath Israel notes that “[t]he Governor does not dispute that [it] ha[s] rigorously implemented and adhered to allhealth protocols and that there has been no outbreak of COVID–19 in [its] congregations.” Application in No.20A90, at 36. Not only is there no evidence that the applicants havecontributed to the spread of COVID–19 but there are manyother less restrictive rules that could be adopted to mini-mize the risk to those attending religious services. Amongother things, the maximum attendance at a religious ser-vice could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected —————— 2See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (di-rective limiting in-person worship services to 50 people); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (ExecutiveOrder limiting in-person worship to 25% capacity or 100 people, which-ever was lower). 5 Cite as: 592 U. S. ____ (2020) Per Curiam by the Executive Order can seat at least 500 people, about14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other ac-tivities that the State allows.
That's an excerpt of the majority opinion written by the new Supreme Court Justice who is a conservative Catholic, and has a strict constructionist view of the Constitution similar to Scalia's.
The dissent?
CHIEF JUSTICE ROBERTS, dissenting. I would not grant injunctive relief under the present cir-cumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, theGovernor revised the designations of the affected areas.None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief theycurrently seek. Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on thatserious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.And it is a significant matter to override determinations made by public health officials concerning what is neces-sary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things now stand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.”
And
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. New York regulations designed to fight the rapidlyspreading—and, in many cases, fatal—COVID–19 viruspermit the Governor to identify hot spots where infectionrates have spiked and to designate those hot spots as red zones, the immediately surrounding areas as orange zones,and the outlying areas as yellow zones. Brief in Opposition in No. 20A87, p. 12. The regulations impose restrictions within these zones (with the strictest restrictions in the redzones and the least strict restrictions in the yellow zones)to curb transmission of the virus and prevent spread intonearby areas. Ibid. In October, the Governor designated red, orange, and yellow zones in parts of Brooklyn and Queens. Brief in Opposition in Agudath Israel of America v. Cuomo, O. T. 2020, No. 20A90, pp. 10–11 (Brief in Oppo-sition in No. 20A90). Among other things, the restrictionsin these zones limit the number of persons who can be pre-sent at one time at a gathering in a house of worship to: thelesser of 10 people or 25% of maximum capacity in a red zone; the lesser of 25 people or 33% of maximum capacity in an orange zone; and 50% of maximum capacity in a yellow zone.
Id., at 8–9. Both the Roman Catholic Diocese of Brooklyn and Agudath Israel of America (together with Agudath Israel of
2 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO BREYER, J., dissenting Kew Garden Hills and its employee and Agudath Israel of Madison and its rabbi) brought lawsuits against the Gover-nor of New York. They claimed that the fixed-capacity re-strictions of 10 people in red zones and 25 people in orange zones were too strict—to the point where they violated the First Amendment’s protection of the free exercise of reli-gion. Both parties asked a Federal District Court for a pre-liminary injunction that would prohibit the State from en-forcing these red and orange zone restrictions.After receiving evidence and hearing witness testimony, the District Court in the Diocese’s case found that New York’s regulations were “crafted based on science and forepidemiological purposes.” ___ F. Supp. 3d ___, ___, 2020WL 6120167, *10 (EDNY, Oct. 16, 2020).
It wrote that they treated “religious gatherings . . . more favorably than simi-lar gatherings” with comparable risks, such as “public lec-tures, concerts or theatrical performances.” Id., at *9. The court also recognized the Diocese’s argument that the regu-lations treated religious gatherings less favorably than what the State has called “essential businesses,” including,for example, grocery stores and banks. Ibid. But the court found these essential businesses to be distinguishable from religious services and declined to “second guess the State’s judgment about what should qualify as an essential busi-ness.” Ibid. The District Court denied the motion for a pre-liminary injunction. The Diocese appealed, and the District Court declined to issue an emergency injunction pending that appeal. The Court of Appeals for the Second Circuitalso denied the Diocese’s request for an emergency injunc-tion pending appeal, but it called for expedited briefing and scheduled a full hearing on December 18 to address the merits of the appeal. This Court, unlike the lower courts,has now decided to issue an injunction that would prohibit the State from enforcing its fixed-capacity restrictions on houses of worship in red and orange zones while the partiesawait the Second Circuit’s decision. I cannot agree with 3 Cite as: 592 U. S. ____ (2020) BREYER, J., dissenting that decision. For one thing, there is no need now to issue any such in-junction. Those parts of Brooklyn and Queens where the Diocese’s churches and the two applicant synagogues arelocated are no longer within red or orange zones. Brief in Opposition in No. 20A90, at 17. Thus, none of the appli-cants are now subject to the fixed-capacity restrictions thatthey challenge in their applications. The specific applicanthouses of worship are now in yellow zones where they can hold services up to 50% of maximum capacity. And the ap-plicants do not challenge any yellow zone restrictions, as the conditions in the yellow zone provide them with more than the relief they asked for in their applications.
Instead, the applicants point out that the State might re-impose the red or orange zone restrictions in the future.But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if neces-sary, could then decide the matter in a day or two, perhapseven in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (andprior to the Court of Appeals’ consideration of the matter)when there is no legal or practical need for it to do so? I have found no convincing answer to that question.For another thing, the Court’s decision runs contrary toordinary governing law. We have previously said that an injunction is an “extraordinary remedy.” Nken v. Holder, 556 U. S. 418, 428 (2009) (internal quotation marks omit-ted). That is especially so where, as here, the applicants seek an injunction prior to full argument and contrary to the lower courts’ determination. Here, we consider severe restrictions. Those restrictions limit the number of persons who can attend a religious service to 10 and 25 congregants(irrespective of mask-wearing and social distancing). And those numbers are indeed low. But whether, in present cir-cumstances, those low numbers violate the Constitution’s Free Exercise Clause is far from clear, and, in my view, the
4 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO BREYER, J., dissenting applicants must make such a showing here to show thatthey are entitled to “the extraordinary remedy of injunc-tion.” Ibid. (internal quotation marks omitted).COVID–19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide. At least 26,000 of those deaths have occurred in the State of New York, with 16,000 in New York City alone. And the number of COVID–19 cases is many times the number of deaths.The Nation is now experiencing a second surge of infections. In New York, for example, the 7-day average of new con-firmed cases per day has risen from around 700 at the end of the summer to over 4,800 last week. Nationwide, the number of new confirmed cases per day is now higher thanit has ever been. Brief in Opposition in No. 20A87, at 1;COVID in the U. S.: Latest Map and Case Count (Nov. 24,2020), http://www.nytimes.com/interactive/2020/us/corona-virus-us-cases.html#states; New York COVID Map and Case Count (Nov. 24, 2020), http://www.nytimes.com/inter-active/2020/us/new-york-coronavirus-cases.html.At the same time, members of the scientific and medical communities tell us that the virus is transmitted from per-son to person through respiratory droplets produced whena person or group of people talk, sing, cough, or breathenear each other. Brief in Opposition in No. 20A87, at 3 (cit-ing the World Health Organization); Brief of the American Medical Association as Amici Curiae 5–6. Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces. Id., at 3–6. The nature of the epidemic, the spikes, the un-certainties, and the need for quick action, taken together,mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges."
My take? It's not a happy court.
Although I get why folks are confused. COVID is an unpredictable virus. And there's a lot of misinformation out there. Also the State may be overreacting - but then again, the State had to deal with corpses in freezer trucks on city streets, overrun hospitals, and sirens blaring all night long. If you did not live through that - it may be hard to grasp. Also the religious deal with this stuff by worshiping in their houses of worship. Their faith keeps them sane. OTOH, their faith also puts others at risk, and they have not necessarily practiced mindfulness. Nor are they aware of nor care about the houses of worship that have resulted in outbreaks. Just those that haven't.
Here's the thing? Since the decision was not anonymous, and it was five to four, which means it was slim, this means it doesn't have a lot of weight. It can and most likely will be overturned later. Grousch barely agreed with Barret, and only as a technicality. All Cumo has to do is refine his law, which he's already done, and that case no longer bares a lot of weight. (ie. Change it to say no more than 50% capacity, unless a case can be traced to any house of worship following the guidelines, then back to 25% or something like that. It's not hard - he can find a loophole. )
Also Roberts is furious - and Roberts is the Chief Justice and conservative and wants a non-partisan court. Expect Roberts to crack down on the newbies.
The lower courts in the end review and analyze whether the Supreme Court's decision pertains to them, and often can use dissenting agreements to argue against it. Also, this could lead to Congress ratifying to change the First Amendment, to restrict religious freedoms due to health crisis or emergencies. Who knows.
At any rate, I foresee fun times ahead. Also this virus isn't through with us yet, and there are others out there. And there's a lot of conversations in the works about changing the makeup of the Supreme Court and establishing term limits. But on a personal level? I'm fine. I'm Unitarian Universalist - that religion is sane and knows how do great Zoom services. Also we're not into the rituals that the others are. (Thank God. The appeal of religious rituals is kind of lost on me. ) Also no one I know is at risk because of this. I just hope the hospitals don't get overrun.
The problem in the US, is religious freedom is put above all else. I don't understand it myself. From my perspective the right to practice religion is the least important right. Also one you can do without hurting people, which a lot of folks seem incapable of for some reason. Note if you can't practice your religion without hurting others, then maybe that right should be taken from you?
As a result the US has become a sanctuary for religious cultists often to its own detriment. Its impossible to fix - because that's how the country was founded - as a sanctuary for religious cultists, also for tax evaders.
2. More on the whole Whedon is Leaving HBO Show - Read His Statement
It doesn't tell you a lot - except it appears to have been Whedon's decision.
I know that Whedon has been cohabiting with a Canadian Artist named Heather Horton, who he appears to have fallen in love with. He keeps posting about her in Twitter. Actually for a while that was all he was posting, video clips with her, video clips of her art, and pictures of her art. He's even changed his tagline to "painter's fella". Why the media hasn't picked up on this - I've no idea. I wasn't exactly paying close attention and noticed it.
He's one of about 200 people that I've been following on Twitter, where I mainly lurk, because I find Twitter scary. It's very easy to be misread or misunderstood on Twitter, and easier still to misread and misunderstand others.
3. Watched the Netflix Christmas musical Jingle Jangle. It's notable for it's mainly all black cast, crew, and creative team. There's only one white guy in it - a banker, played by Hugh Bonneville (of Downton Abbey fame). The musical composition is by John Legend, who is everywhere at the moment. (I'm not crazy about Legend's music - so the musical compositions and songs didn't exacly wow me. There are two very good numbers in it, but neither are really memorable.) The other thing it is notable for is the stop motion wooden and mechanized puppetry, which I adored.
The animation - is quite marvelous, it's intricate, realistic, and well woven into the live action and plot. The movie is worth seeing for that alone.
The plot? Kind of derivative, except for the fact that it's an all black cast playing roles that you usually see white folks in. That is another reason to watch it. We have token white casting instead of token black casting, reminiscent of Black Panther. I honestly think Black Panther was a game changer in that regard.
It's about a toy maker whose designs are stolen by his apprentice. He loses everything including all hope and creativity, until his granddaughter visits years later and helps him rediscover all of it. (Kind of similar to the plot of Babes in Toyland...or Chitty Chitty Bang Bang). Kind of innovative in the sense that it is his granddaughter and daughter who help him rediscover his gifts. And his granddaughter who inherits his abilities and carries it forward.
The casting? Nice to see Forrest Whittacker and Phyllisha Rashid pop up. Ricky Martin does one of the voices. So overall pretty good. Also, again all black casting with one minor exception!
The musical bits? Eh, two good numbers. The rest not so much, and hard to hear. Also it was bit jarring and seemed to come out of nowhere. I'd have preferred it if they hadn't done the numbers for the most part. I'm not sure they are needed.
4. Also watched, yesterday, Family Stone on HBO. I don't get the appeal of this film. I spent most of wanting to smack Dylan McDermott upside the head. I can't think of one film that stars that actor in which I don't spend the majority of the film wanting to smack him upside the head.
Also oddly, we're supposed to hate Sarah Louise Parker's Meredith, but I disliked everyone but her for most of the film. She plays a nervous uptight New Yorker - who needs to let her hair down and have fun. Except I got the impression that the only reason she was uptight is the idiot who brought her to his family for Christmas with the intent of proposing marriage (Dylan McDermott), forgot to tell her anything about himself or his family. Or he told her all the wrong things. She proceeds to put her foot in her mouth repeatedly, with various family members treating her like an ogre, and deliberately misunderstanding. Worse, the family members like to play the victim.
I'm amazed she stays. I'd have called the bus service and found a way out of there. Instead she phones her sister, portrayed by Claire Danes, who comes up and immediately charms everyone. I spent half the movie wanting to smack Claire Danes (who is another actor who I can't seem to make it through any of their films without wanting to smack them).
Some of the humiliation is so cringe inducing I fast-forwarded or wanted to leave the room. I have an embarrassment squick - I can't watch it.
Diane Keaton, we find out, is dying of Breast Cancer. I'd care but it's become so cliche in these films - it's hard too. Also Keaton's character is not likable and kind of wispy and whiny. Also, we're not really given much chance to get to know her. I spent half the film wanting to smack her as well - which to be honest, is true of most Keaton films. I don't know why.
The saving grace in the film is Craig T Nelson, Sarah Louise Parker and Luke Wilson. Rachel McAdams is okay, and kind of redeems herself for being hateful. But Thad, who is gay and death, is more of a 1990s cliche for both.
In fact it feels a bit too much, Thad is gay, death, and married to a black man, adopting a kid. And he plays up the sensitive incredibly nice victim throughout. Which would have worked better if the actors remembered he's death - they talk to him with their backs to him, and he seems to understand. And when she shouts - he asks why she's shouting, if he's death, how would he know? Can he hear her - is he partially death? The actor actually kind of saves the character - the little we see of him. But unfortunately he's written more as a catalyst for conflict. All of Meredith's faux pas center around Thad and his boyfriend. He feels more like a social issue the writer wanted to address than a character. The problem with doing it that way - is it becomes more tell than show. I've seen this done far better elsewhere.
I first saw this movie ages ago - in the 1990s, with a woman who was on welfare. She disliked the movie - mainly because it depicted a lot of whiny rich people. (Her words not mine.) But I couldn't remember it that well.
And kept seeing it on all these critics and bloggers best Holiday film lists - it was the film they re-watched every year.
I don't know why. Love Actually makes more sense to me. OR It's a Wonderful Life. Or the Grinch. This...okay.
Note - I've realized while writing this that there are a couple of actors whose films never quite worked for me. Claire Danes, Diane Keaton, and Dylan McDermott. I've no clue why.
As a palate cleanser - I watched Buffy the Vampire Slayer S4 Episode "Pangs" which after all this time, still holds up pretty well. It's hilarious in places, even more so now that I'm not shipping anyone nor care who Buffy ends up with. Also, say what you will about Buffy, it has great one liners and dialogue. The dialogue and the actors delivery of it is spot on.
Some background? In late February/early March it came to the New State Department of Health's attention that there could be an outbreak in NY. They looked into it - and discovered that a lawyer came down with COVID. No clue how he got it - but he managed to infect over 1000 people in New Rochelle. How? They traced it - and discovered that he had attended three functions: a birthday party, a synagogue, and a funeral. At each function - he infected every person there, and they went on to infect everyone they knew. Resulting in a major outbreak - that in turn may or may not have been responsible for over 10,000 deaths.
As a result of this - it was determined by the State Department of Health to restrict houses of worship to 50% capacity, and when outbreaks still occurred to even less. Across the state.
The Catholic Diocese of Brooklyn (which I was a member of in the 1990s, but stopped a long time ago, and converted to Unitarian Universalist in roughly 2010) filed the lawsuit. And it went all the way up to the Supreme Court of the United States, and is the first reviewed by the new court, with the newest appointee, who just happens to be a conservative Roman Catholic.
To add a new wrinkle to this... Pope Francis, the leader of the Roman Catholic Church, recently blasted critics of COVID restrictions based on personal freedoms in an NY Times Op-Ed
And one more wrinkle - the Agudath Israel of America, et al. v. Cuomo, the Hasidic Community, filed a similar case. NY is having issues with this community - it can't keep them safe. Both communities that filed the lawsuits reside in Brooklyn. Williamsburg, and Southern Brooklyn.
Brooklyn has had over 86,000 cases to date, and over 7,000 deaths. The majority of cases have been traced to large gatherings, funerals, weddings, worship, parties, indoor dining and bars. NY State to date - has done everything within its power to crack down on large gatherings with mixed results.
With the above in mind - here's the excerpt from the Court's opinion.
The application for injunctive relief presented to JUSTICE BREYER and by him referred to the Court is granted. Respondent is enjoined from enforcing Executive Order 202.68’s 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be de-nied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court.
* * * * * *
This emergency application and another, Agudath Israel of America, et al. v. Cuomo, No. 20A90, present the same issue, and this opinion addresses both cases. Both applications seek relief from an Executive Order is-sued by the Governor of New York that imposes very severe restrictions on attendance at religious services in areas classified as “red” or “orange” zones. In red zones, no more than 10 persons may attend each religious service, and in orange zones, attendance is capped at 25. The two applications, one filed by the Roman Catholic Diocese of Brooklyn and the other by Agudath Israel of America and affiliated 2 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO Per Curiam entities, contend that these restrictions violate the Free Ex-ercise Clause of the First Amendment, and they ask us to enjoin enforcement of the restrictions while they pursue ap-pellate review.
Citing a variety of remarks made by the Governor, Agudath Israel argues that the Governor specifically targeted the Orthodox Jewish community and gerry-mandered the boundaries of red and orange zones to ensure that heavily Orthodox areas were included. Both the Diocese and Agudath Israel maintain that the regulations treat houses of worship much more harshly than comparable secular facilities. And they tell us without contradiction that they have complied with all public health guidance, have implemented additional precautionary measures, and have operated at 25% or 33% capacity for months without a single outbreak.
The applicants have clearly established their entitlement to relief pending appellate review. They have shown that their First Amendment claims are likely to prevail, that denying them relief would lead to irreparable injury, and that granting relief would not harm the public interest. See Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 20 (2008).
Because of the need to issue an order promptly, we provide only a brief summary of the reasons why immediate relief is essential. Likelihood of success on the merits. The applicants have made a strong showing that the challenged restrictions violate “the minimum requirement of neutrality” to religion. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 533 (1993). As noted by the dissent in the court below,statements made in connection with the challenged rulescan be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ” ___ F. 3d ___, ___, 2020 WL 6750495, *5 (CA2, Nov. 9, 2020) (Park, J., dissenting). But even if we put those comments aside, the regulations cannot be viewed 3 Cite as: 592 U. S. ____ (2020) Per Curiam as neutral because they single out houses of worship for especially harsh treatment.1
In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as es-sential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities. See New York State, Empire State Development, Guidance for De-termining Whether a Business Enterprise is Subject to a Workforce Reduction Under Recent Executive Orders, https://esd.ny.gov/guidance-executive-order-2026.
The disparate treatment is even more striking in an orange zone.While attendance at houses of worship is limited to 25 per-sons, even non-essential businesses may decide for them-selves how many persons to admit. These categorizations lead to troubling results. At the hearing in the District Court, a health department official testified about a large store in Brooklyn that could “literally have hundreds of people shopping there on any given day.” App. to Application in No. 20A87, Exh. D, p. 83. Yet a nearby church or synagogue would be prohibited from al-lowing more than 10 or 25 people inside for a worship service. And the Governor has stated that factories and schools have contributed to the spread of COVID–19, id., Exh. H, at 3; App. to Application in No. 20A90, pp. 98, 100, but they are treated less harshly than the Diocese’s churches and Agudath Israel’s synagogues, which have admirable safety records.
Because the challenged restrictions are not “neutral” and —————— 1Compare Trump v. Hawaii, 585 U. S. ___, ___ (2018) (slip op., at 29) (directive “neutral on its face”). 4 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO Per Curiam of “general applicability,” they must satisfy “strict scru-tiny,” and this means that they must be “narrowly tailored” to serve a “compelling” state interest. Church of Lukumi, 508 U. S., at 546. Stemming the spread of COVID–19 isunquestionably a compelling interest, but it is hard to see how the challenged regulations can be regarded as “nar-rowly tailored.” They are far more restrictive than any COVID–related regulations that have previously come be-fore the Court,2 much tighter than those adopted by many other jurisdictions hard-hit by the pandemic, and far more severe than has been shown to be required to prevent the spread of the virus at the applicants’ services. The District Court noted that “there ha[d] not been any COVID–19 out-break in any of the Diocese’s churches since they reopened,” and it praised the Diocese’s record in combatting the spreadof the disease. ___ F. Supp. 3d ___, ___, 2020 WL 6120167, *2 (EDNY, Oct. 16, 2020). It found that the Diocese had been constantly “ahead of the curve, enforcing strictersafety protocols than the State required.” Ibid. Similarly,Agudath Israel notes that “[t]he Governor does not dispute that [it] ha[s] rigorously implemented and adhered to allhealth protocols and that there has been no outbreak of COVID–19 in [its] congregations.” Application in No.20A90, at 36. Not only is there no evidence that the applicants havecontributed to the spread of COVID–19 but there are manyother less restrictive rules that could be adopted to mini-mize the risk to those attending religious services. Amongother things, the maximum attendance at a religious ser-vice could be tied to the size of the church or synagogue. Almost all of the 26 Diocese churches immediately affected —————— 2See Calvary Chapel Dayton Valley v. Sisolak, 591 U. S. ___ (2020) (di-rective limiting in-person worship services to 50 people); South Bay United Pentecostal Church v. Newsom, 590 U. S. ___ (2020) (ExecutiveOrder limiting in-person worship to 25% capacity or 100 people, which-ever was lower). 5 Cite as: 592 U. S. ____ (2020) Per Curiam by the Executive Order can seat at least 500 people, about14 can accommodate at least 700, and 2 can seat over 1,000. Similarly, Agudath Israel of Kew Garden Hills can seat up to 400. It is hard to believe that admitting more than 10 people to a 1,000–seat church or 400–seat synagogue would create a more serious health risk than the many other ac-tivities that the State allows.
That's an excerpt of the majority opinion written by the new Supreme Court Justice who is a conservative Catholic, and has a strict constructionist view of the Constitution similar to Scalia's.
The dissent?
CHIEF JUSTICE ROBERTS, dissenting. I would not grant injunctive relief under the present cir-cumstances. There is simply no need to do so. After the Diocese and Agudath Israel filed their applications, theGovernor revised the designations of the affected areas.None of the houses of worship identified in the applications is now subject to any fixed numerical restrictions. At these locations, the applicants can hold services with up to 50% of capacity, which is at least as favorable as the relief theycurrently seek. Numerical capacity limits of 10 and 25 people, depending on the applicable zone, do seem unduly restrictive. And it may well be that such restrictions violate the Free Exercise Clause. It is not necessary, however, for us to rule on thatserious and difficult question at this time. The Governor might reinstate the restrictions. But he also might not.And it is a significant matter to override determinations made by public health officials concerning what is neces-sary for public safety in the midst of a deadly pandemic. If the Governor does reinstate the numerical restrictions the applicants can return to this Court, and we could act quickly on their renewed applications. As things now stand, however, the applicants have not demonstrated their entitlement to “the extraordinary remedy of injunction.”
And
JUSTICE BREYER, with whom JUSTICE SOTOMAYOR and JUSTICE KAGAN join, dissenting. New York regulations designed to fight the rapidlyspreading—and, in many cases, fatal—COVID–19 viruspermit the Governor to identify hot spots where infectionrates have spiked and to designate those hot spots as red zones, the immediately surrounding areas as orange zones,and the outlying areas as yellow zones. Brief in Opposition in No. 20A87, p. 12. The regulations impose restrictions within these zones (with the strictest restrictions in the redzones and the least strict restrictions in the yellow zones)to curb transmission of the virus and prevent spread intonearby areas. Ibid. In October, the Governor designated red, orange, and yellow zones in parts of Brooklyn and Queens. Brief in Opposition in Agudath Israel of America v. Cuomo, O. T. 2020, No. 20A90, pp. 10–11 (Brief in Oppo-sition in No. 20A90). Among other things, the restrictionsin these zones limit the number of persons who can be pre-sent at one time at a gathering in a house of worship to: thelesser of 10 people or 25% of maximum capacity in a red zone; the lesser of 25 people or 33% of maximum capacity in an orange zone; and 50% of maximum capacity in a yellow zone.
Id., at 8–9. Both the Roman Catholic Diocese of Brooklyn and Agudath Israel of America (together with Agudath Israel of
2 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO BREYER, J., dissenting Kew Garden Hills and its employee and Agudath Israel of Madison and its rabbi) brought lawsuits against the Gover-nor of New York. They claimed that the fixed-capacity re-strictions of 10 people in red zones and 25 people in orange zones were too strict—to the point where they violated the First Amendment’s protection of the free exercise of reli-gion. Both parties asked a Federal District Court for a pre-liminary injunction that would prohibit the State from en-forcing these red and orange zone restrictions.After receiving evidence and hearing witness testimony, the District Court in the Diocese’s case found that New York’s regulations were “crafted based on science and forepidemiological purposes.” ___ F. Supp. 3d ___, ___, 2020WL 6120167, *10 (EDNY, Oct. 16, 2020).
It wrote that they treated “religious gatherings . . . more favorably than simi-lar gatherings” with comparable risks, such as “public lec-tures, concerts or theatrical performances.” Id., at *9. The court also recognized the Diocese’s argument that the regu-lations treated religious gatherings less favorably than what the State has called “essential businesses,” including,for example, grocery stores and banks. Ibid. But the court found these essential businesses to be distinguishable from religious services and declined to “second guess the State’s judgment about what should qualify as an essential busi-ness.” Ibid. The District Court denied the motion for a pre-liminary injunction. The Diocese appealed, and the District Court declined to issue an emergency injunction pending that appeal. The Court of Appeals for the Second Circuitalso denied the Diocese’s request for an emergency injunc-tion pending appeal, but it called for expedited briefing and scheduled a full hearing on December 18 to address the merits of the appeal. This Court, unlike the lower courts,has now decided to issue an injunction that would prohibit the State from enforcing its fixed-capacity restrictions on houses of worship in red and orange zones while the partiesawait the Second Circuit’s decision. I cannot agree with 3 Cite as: 592 U. S. ____ (2020) BREYER, J., dissenting that decision. For one thing, there is no need now to issue any such in-junction. Those parts of Brooklyn and Queens where the Diocese’s churches and the two applicant synagogues arelocated are no longer within red or orange zones. Brief in Opposition in No. 20A90, at 17. Thus, none of the appli-cants are now subject to the fixed-capacity restrictions thatthey challenge in their applications. The specific applicanthouses of worship are now in yellow zones where they can hold services up to 50% of maximum capacity. And the ap-plicants do not challenge any yellow zone restrictions, as the conditions in the yellow zone provide them with more than the relief they asked for in their applications.
Instead, the applicants point out that the State might re-impose the red or orange zone restrictions in the future.But, were that to occur, they could refile their applications here, by letter brief if necessary. And this Court, if neces-sary, could then decide the matter in a day or two, perhapseven in a few hours. Why should this Court act now without argument or full consideration in the ordinary course (andprior to the Court of Appeals’ consideration of the matter)when there is no legal or practical need for it to do so? I have found no convincing answer to that question.For another thing, the Court’s decision runs contrary toordinary governing law. We have previously said that an injunction is an “extraordinary remedy.” Nken v. Holder, 556 U. S. 418, 428 (2009) (internal quotation marks omit-ted). That is especially so where, as here, the applicants seek an injunction prior to full argument and contrary to the lower courts’ determination. Here, we consider severe restrictions. Those restrictions limit the number of persons who can attend a religious service to 10 and 25 congregants(irrespective of mask-wearing and social distancing). And those numbers are indeed low. But whether, in present cir-cumstances, those low numbers violate the Constitution’s Free Exercise Clause is far from clear, and, in my view, the
4 ROMAN CATHOLIC DIOCESE OF BROOKLYN v. CUOMO BREYER, J., dissenting applicants must make such a showing here to show thatthey are entitled to “the extraordinary remedy of injunc-tion.” Ibid. (internal quotation marks omitted).COVID–19 has infected more than 12 million Americans and caused more than 250,000 deaths nationwide. At least 26,000 of those deaths have occurred in the State of New York, with 16,000 in New York City alone. And the number of COVID–19 cases is many times the number of deaths.The Nation is now experiencing a second surge of infections. In New York, for example, the 7-day average of new con-firmed cases per day has risen from around 700 at the end of the summer to over 4,800 last week. Nationwide, the number of new confirmed cases per day is now higher thanit has ever been. Brief in Opposition in No. 20A87, at 1;COVID in the U. S.: Latest Map and Case Count (Nov. 24,2020), http://www.nytimes.com/interactive/2020/us/corona-virus-us-cases.html#states; New York COVID Map and Case Count (Nov. 24, 2020), http://www.nytimes.com/inter-active/2020/us/new-york-coronavirus-cases.html.At the same time, members of the scientific and medical communities tell us that the virus is transmitted from per-son to person through respiratory droplets produced whena person or group of people talk, sing, cough, or breathenear each other. Brief in Opposition in No. 20A87, at 3 (cit-ing the World Health Organization); Brief of the American Medical Association as Amici Curiae 5–6. Thus, according to experts, the risk of transmission is higher when people are in close contact with one another for prolonged periods of time, particularly indoors or in other enclosed spaces. Id., at 3–6. The nature of the epidemic, the spikes, the un-certainties, and the need for quick action, taken together,mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges."
My take? It's not a happy court.
Although I get why folks are confused. COVID is an unpredictable virus. And there's a lot of misinformation out there. Also the State may be overreacting - but then again, the State had to deal with corpses in freezer trucks on city streets, overrun hospitals, and sirens blaring all night long. If you did not live through that - it may be hard to grasp. Also the religious deal with this stuff by worshiping in their houses of worship. Their faith keeps them sane. OTOH, their faith also puts others at risk, and they have not necessarily practiced mindfulness. Nor are they aware of nor care about the houses of worship that have resulted in outbreaks. Just those that haven't.
Here's the thing? Since the decision was not anonymous, and it was five to four, which means it was slim, this means it doesn't have a lot of weight. It can and most likely will be overturned later. Grousch barely agreed with Barret, and only as a technicality. All Cumo has to do is refine his law, which he's already done, and that case no longer bares a lot of weight. (ie. Change it to say no more than 50% capacity, unless a case can be traced to any house of worship following the guidelines, then back to 25% or something like that. It's not hard - he can find a loophole. )
Also Roberts is furious - and Roberts is the Chief Justice and conservative and wants a non-partisan court. Expect Roberts to crack down on the newbies.
The lower courts in the end review and analyze whether the Supreme Court's decision pertains to them, and often can use dissenting agreements to argue against it. Also, this could lead to Congress ratifying to change the First Amendment, to restrict religious freedoms due to health crisis or emergencies. Who knows.
At any rate, I foresee fun times ahead. Also this virus isn't through with us yet, and there are others out there. And there's a lot of conversations in the works about changing the makeup of the Supreme Court and establishing term limits. But on a personal level? I'm fine. I'm Unitarian Universalist - that religion is sane and knows how do great Zoom services. Also we're not into the rituals that the others are. (Thank God. The appeal of religious rituals is kind of lost on me. ) Also no one I know is at risk because of this. I just hope the hospitals don't get overrun.
The problem in the US, is religious freedom is put above all else. I don't understand it myself. From my perspective the right to practice religion is the least important right. Also one you can do without hurting people, which a lot of folks seem incapable of for some reason. Note if you can't practice your religion without hurting others, then maybe that right should be taken from you?
As a result the US has become a sanctuary for religious cultists often to its own detriment. Its impossible to fix - because that's how the country was founded - as a sanctuary for religious cultists, also for tax evaders.
2. More on the whole Whedon is Leaving HBO Show - Read His Statement
It doesn't tell you a lot - except it appears to have been Whedon's decision.
I know that Whedon has been cohabiting with a Canadian Artist named Heather Horton, who he appears to have fallen in love with. He keeps posting about her in Twitter. Actually for a while that was all he was posting, video clips with her, video clips of her art, and pictures of her art. He's even changed his tagline to "painter's fella". Why the media hasn't picked up on this - I've no idea. I wasn't exactly paying close attention and noticed it.
He's one of about 200 people that I've been following on Twitter, where I mainly lurk, because I find Twitter scary. It's very easy to be misread or misunderstood on Twitter, and easier still to misread and misunderstand others.
3. Watched the Netflix Christmas musical Jingle Jangle. It's notable for it's mainly all black cast, crew, and creative team. There's only one white guy in it - a banker, played by Hugh Bonneville (of Downton Abbey fame). The musical composition is by John Legend, who is everywhere at the moment. (I'm not crazy about Legend's music - so the musical compositions and songs didn't exacly wow me. There are two very good numbers in it, but neither are really memorable.) The other thing it is notable for is the stop motion wooden and mechanized puppetry, which I adored.
The animation - is quite marvelous, it's intricate, realistic, and well woven into the live action and plot. The movie is worth seeing for that alone.
The plot? Kind of derivative, except for the fact that it's an all black cast playing roles that you usually see white folks in. That is another reason to watch it. We have token white casting instead of token black casting, reminiscent of Black Panther. I honestly think Black Panther was a game changer in that regard.
It's about a toy maker whose designs are stolen by his apprentice. He loses everything including all hope and creativity, until his granddaughter visits years later and helps him rediscover all of it. (Kind of similar to the plot of Babes in Toyland...or Chitty Chitty Bang Bang). Kind of innovative in the sense that it is his granddaughter and daughter who help him rediscover his gifts. And his granddaughter who inherits his abilities and carries it forward.
The casting? Nice to see Forrest Whittacker and Phyllisha Rashid pop up. Ricky Martin does one of the voices. So overall pretty good. Also, again all black casting with one minor exception!
The musical bits? Eh, two good numbers. The rest not so much, and hard to hear. Also it was bit jarring and seemed to come out of nowhere. I'd have preferred it if they hadn't done the numbers for the most part. I'm not sure they are needed.
4. Also watched, yesterday, Family Stone on HBO. I don't get the appeal of this film. I spent most of wanting to smack Dylan McDermott upside the head. I can't think of one film that stars that actor in which I don't spend the majority of the film wanting to smack him upside the head.
Also oddly, we're supposed to hate Sarah Louise Parker's Meredith, but I disliked everyone but her for most of the film. She plays a nervous uptight New Yorker - who needs to let her hair down and have fun. Except I got the impression that the only reason she was uptight is the idiot who brought her to his family for Christmas with the intent of proposing marriage (Dylan McDermott), forgot to tell her anything about himself or his family. Or he told her all the wrong things. She proceeds to put her foot in her mouth repeatedly, with various family members treating her like an ogre, and deliberately misunderstanding. Worse, the family members like to play the victim.
I'm amazed she stays. I'd have called the bus service and found a way out of there. Instead she phones her sister, portrayed by Claire Danes, who comes up and immediately charms everyone. I spent half the movie wanting to smack Claire Danes (who is another actor who I can't seem to make it through any of their films without wanting to smack them).
Some of the humiliation is so cringe inducing I fast-forwarded or wanted to leave the room. I have an embarrassment squick - I can't watch it.
Diane Keaton, we find out, is dying of Breast Cancer. I'd care but it's become so cliche in these films - it's hard too. Also Keaton's character is not likable and kind of wispy and whiny. Also, we're not really given much chance to get to know her. I spent half the film wanting to smack her as well - which to be honest, is true of most Keaton films. I don't know why.
The saving grace in the film is Craig T Nelson, Sarah Louise Parker and Luke Wilson. Rachel McAdams is okay, and kind of redeems herself for being hateful. But Thad, who is gay and death, is more of a 1990s cliche for both.
In fact it feels a bit too much, Thad is gay, death, and married to a black man, adopting a kid. And he plays up the sensitive incredibly nice victim throughout. Which would have worked better if the actors remembered he's death - they talk to him with their backs to him, and he seems to understand. And when she shouts - he asks why she's shouting, if he's death, how would he know? Can he hear her - is he partially death? The actor actually kind of saves the character - the little we see of him. But unfortunately he's written more as a catalyst for conflict. All of Meredith's faux pas center around Thad and his boyfriend. He feels more like a social issue the writer wanted to address than a character. The problem with doing it that way - is it becomes more tell than show. I've seen this done far better elsewhere.
I first saw this movie ages ago - in the 1990s, with a woman who was on welfare. She disliked the movie - mainly because it depicted a lot of whiny rich people. (Her words not mine.) But I couldn't remember it that well.
And kept seeing it on all these critics and bloggers best Holiday film lists - it was the film they re-watched every year.
I don't know why. Love Actually makes more sense to me. OR It's a Wonderful Life. Or the Grinch. This...okay.
Note - I've realized while writing this that there are a couple of actors whose films never quite worked for me. Claire Danes, Diane Keaton, and Dylan McDermott. I've no clue why.
As a palate cleanser - I watched Buffy the Vampire Slayer S4 Episode "Pangs" which after all this time, still holds up pretty well. It's hilarious in places, even more so now that I'm not shipping anyone nor care who Buffy ends up with. Also, say what you will about Buffy, it has great one liners and dialogue. The dialogue and the actors delivery of it is spot on.
no subject
Date: 2020-11-28 07:40 pm (UTC)no subject
Date: 2020-11-28 10:44 pm (UTC)All my lawyer friends hated that decision.
It's not going to hurt NY but it will hurt the rest of the country.
As the nurse at my doctor's office stated - "we're going on lockdown again." I'm willing to bet the entire country does in January, and even more jobs are lost. The people who made the decisions that led us here - have a lot to answer for.
no subject
Date: 2020-11-28 11:20 pm (UTC)no subject
Date: 2020-11-29 12:06 am (UTC)They don't want to shut down the restaurants, bars, and gyms - because it will put them all out of business. Or the retail establishments. Or the healthcare/medical places. Or the beauty salons. All of that real estate, property and payroll tax revenue for the State that goes by-by.
I mean how do you keep people safe without causing businesses to go under at the same time? I've been watching NY try to navigate this problem since March. I remember thinking in a blind panic back in February - "how can you possibly shut down NYC?" Answer? Very carefully and in phases. I mean NYC's lifeblood is its entertainment/tourist industry - the nightclubs, theaters, restaurants, bars, tourist attractions, shopping, stores, office space, etc. All of which can't continue with a virus. So it's kind of navigating around it. Stores are open, but with limited capacity. SAKS still has it's window light show, they are doing a Rockerfeller Christmas Tree Lighting Ceremony Live (just not with any onlookers), and people are shopping and wandering about with masks.
We're at 3% infection right now - so not too bad, but I suspect it will get worse soon.
no subject
Date: 2020-11-29 12:17 am (UTC)