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A RC priest is suing the state to force the state to allow houses of worship that can have social distancing to conduct services.
That lawyer won a similar case in Illinois .Explain how a) permitting some businesses to open for employees and customers but b) forbidding religions from opening their places of worship for ministers and congregants passes muster under the First Amendment to the Constitution.
Secondly, did New York even actually forbid places of worship from opening? Or did they just limit the number of people who can be there at the same time?
Dear Common,
He will win. There is no reason to bring the case. Maybe a wise judge will deny standing.Disclaimer: I am not licensed in New Jersey (just CT, MA, NY, FL)
That said states enjoy Sovereign Immunity and generally one needs to get permission to sue a state from the state.
I haven’t read the filings, but question if the State of New Jersey has agreed to waive Sovereign Immunity and allow this lawsuitBy the time a judge gets around to ruling on this (and similar) lawsuits, the case may be moot. Most state governors are operating under very broad emergency authority under their respective state laws to limit/suspend individual rights to protect public health and safety. Where they cross the line is when they cannot establish some reasoned basis for their decision-making or where it appears to be totally arbitrary with evidence of animus towards constitutionally protected rights. For example, a Virginia judge found the governor went too far by allowing outdoor gun ranges to stay open but closing an indoor gun range.. Conversely, several other federal and state judges have upheld limits on indoor religious services where there was provision for outdoor services with proper spacing. I would think De Blasoio’s selective enforcement is a bigger concern than closure rules that are applied uniformly across similarly situated religious/commercial activities.
CTL: Why would any State ever agree to waive sovereign immunity in any case against it (or for that matter against any city, county or municipality within the State, which effectively are all units of the State), if it could save itself from any lawsuits by not waiving it?
Additionally, regarding the OP here, is it not the case that when it comes to potential federal constitutional rights violations that a State cannot claim sovereign immunity? i.e. If a State outlawed the free press in the State, it couldn’t avoida lawsuit by refusing to waive immunity.
The Eleventh Amendment generally limits private actions brought against states in federal court. … A state may not be sued in federal court by its own citizen or a citizen of another state, unless the state consents to jurisdiction. However, where the claim relates to denial of a (federal) constitutional right, such claims often are heard in the federal appellate courts and SCOTUS (e.g. Heller decision striking down D.C. weapons law under Second Amendment, Oberefell (Bakers”) decision striking down Colorado civil rights law in the case of baker refusing to provide wedding cake for gay couple etc).
CTL, see the 6th circuit decision in Kentucky, dismissing the distinction between “life-sustaining” and “soul-sustaining” activities. Also see the multiple decisions requiring states that have banned elective surgery to make an exception for abortion. The right to the free exercise of religion is at least as constitutionally important as the right to murder ones baby, and the same considerations apply: Ditto for closing gun shops; states cannot do that unless they allow some other method of purchasing guns, such as allowing a dealer to set up a table outside the store.
A state may not substantially burden a constitutional right without allowing an alternative method for it to be exercised. Nor may a state decide what is an adequate fulfillment of a religious obligation. Thus it is illegal for a state to ban tefillah betzibur altogether, but it may impose reasonable restrictions on it, i.e. restrictions that are capable of being obeyed and thus don’t constitute a de facto ban.
@Joseph
States waive immunity for many reasons, often so an insurance company can be forced to pay.
The OP didn’t say this was filed in Federal court but said that in response to my first comment.@commonsaychel
I do not practice in Federal Court. My practice is limited to Family Law, wills estates, Trusts and some contract/real estate work for the trust. I was admitted before the First Circuit about 35 years ago, but have not appeared in decades.
We specifically have never expanded into a general practice firm, very happy in our niche.@Millhouse
BASIC RULE OF AMERICAN LAW
a ruling by the Federal Courts in one circuit is NOT binding on other circuits. Only SCOTUS decisions bind all circuits.
New Jersey is not in the 6th and is not bound by that decision. They may take it under advisement and decide to follow it but are not bound by it.CTLAWYER, You’re not correct on binding decisions. A recent disturbing trend is for a single district judge issuing national injunctions . Members of the Supreme Court gave expressed a dislike for the practice and have been overturning them on expedited appeals
Anon, CTL is correct. Injunctions and precedents are two completely different things. National injunctions are issued when the defendant is the USA; the Sixth Circuit couldn’t have issued an injunction against New Jersey because it wasn’t a defendant in the case.
However, the law here is not in any serious dispute. The third circuit would have reached the same decision as the sixth, because there really isn’t any other decision to reach. And Police v Newark IS a third circuit decision, which is directly on point.
Dear common,
All right I checked off that little list for you. But in between forging my HS diploma and passing the bar, I noticed that we are all being affected by the shutdown that is a generalized grievance. Of course, there is Joseph’s argument. But the religious groups should be required to hold up their end of separation. That will never happen. And so America is destined to keep losing it’s religious leaders. And if he wins in court, we will be told it is a victory for religious freedoms.Sorry, the OP got it WRONG.
The State of NJ is NOT being sued. Phil Murphy, in his official capacity as Governor is being sued. The suit seeks injunctive relief to an Executive Order.
YWN posted a news article about a Lakewood Rabbi joining the suit and posted the actual suit filed in US District Court.All my previous comments about needing the state’s permission to sue the state were a waste of my time, since the state was not being sued.
CTL: What’s the legal distinction between suing a State in state court versus suing an officer of the State in his official capacity?
We should all be makir tov,the person from Lakewood who joined the law suit.Otherwise bthis could ח”ו be a kitrug against us if goyim are more concerned with religious freedom bthan us.
See the DOJ “interested party” filing in the litigation brought in Virginia by a small church on Smith Island which had been issued a summons for violating the state’s guidelines limiting church gatherings to 10 individuals. In their case, they had 16 attendees in a building that seated over 200 and had taken other steps to follow CDC guidelines. While I’m a big supporter of the guidelines in general, some of their prescriptive rules make no sense, especially when you are dealing with constitutionally protected activities such as shooting ranges and religious services. I’m personally clueless as to why golf courses in many states were initially closed since I cannot think of a sport with greater social distancing when you walk the course (especially since I spend most of the time in the rough). However, golfing and getting a tattoo are not constitutionally protected. A bit more common sense would have made the rules go down a bit easier with most (but not all) those affected.
People are suing for the right to commit suicide. 🙁
Common, Police v Newark says that if the state has a rule, which is valid and it’s allowed to make, but it makes any exceptions to that rule, then it had better have a good reason why it can’t make the same exceptions for constitutionally protected activities such as religious exercise. Simply saying that it wants to keep the exceptions to a minimum, so it allows them only for what it regards as essential cases, is not good enough.
(Edited)
@Gadolhadorah
Our local municipal golf course was closed in March and has been reopened this week, It was not about social distancing of the players.
It was done because:
#1 it is within a municipal park, and all parks were closed and the entry gates locked. This closed the tennis, basketball courts, playgrounds and ball fields within that park as well.
#2 It was to protect the employees from exposure to Covid-19 carried by the golfers coming to play. There were shortages of masks and no requirement for people to wear masks in public. Since ordered by the Governor.
#3 The employees were put top work in more essential uses, such as sanitizing and deep cleaning, town hall, other government buildings and the schools, as well as DPW vehicles and equipment
#4 There was a shortage of PPE and cleaning materials and these were diverted to hospitals and first responders. Far more important than using them to sanitize each gold cart between foursomes.
#5 Keeping the golf course and parks closed help enforce stay at home orders. This is not a big city with people in high rise apartments or densely packed houses side by side. It is a small town with 1/2 or 1 acre zoning per house with everyone having private yards and gardens to enjoy. Our grandchildren, here since March 12 have been using our basketball and tennis court, riding bikes in our yard and drives, etc.Mow that supplies and cleaning materials are more readily available, our golf course has reopened. Carts may be used, but only allow 2 in one cart if their Identification proves they live in same household. Golfers may only tee off if the previous golfers are already on the green. Tee times by prior reservation only, and no out of town players permitted.
I agree with charliehall. In addition to suicide, people are suing for the right to be a rodef. It’s an embarrassment that a Rabbi joined the suit. I feel that Agudath should put out a letter that said Rabbi is speaking for himself and not the rest of the community.
The potential Chilul Hashem is allowing some incompetent bueracrat the power to decide how we practice our religion while some goyim are willing to fight for the right to decide that on their own.One can hold strongly that minyanim now are wrong and still should not want the govt making that decision.
Dear Common,
One component of bringing a case is that it affects you in a unique way. I cannot sue against traffic laws because they apply to everyone. (This keeps the courts out of legislation and budgets.) The shutdown was applied (mostly) across the board. The government could admit that disallowing certaIin functions were in error, or argue that the interest of containing the virus is being applied equally to everyone. Personally, I think the Governors are being overloaded with getting medical supplies, and so on. We are better served the less they have to parse their directives to address personal freedoms. My freedoms could wait for better times.Dear Daya,
Some practice their religion. Some are content with just having the right to practice.The government should not be able to decide when a Certain part of a religion is important. It is up to the members of that religion to decide that. I do believe we should not be starting regular minyanim, but I also believe that the government should not be deciding that.
funnybone, enough with the “rodef” nonsense. You have NO RIGHT to call someone a rodef just because they refuse to participate in some social experiment or follow the latest fad. A rodef is someone who knows he is infected, and nevertheless carries his infection to vulnerable people. Not someone who simply davens with a minyan without any reason to believe that he is harming anyone else by doing so.
Common, Police v Newark was a free exercise case, not a reasonable accommodation case.
n0m, you are wrong about standing. If you discover some defect in a traffic law you can and should sue over it, and the fact that you are not “uniquely” affected makes no difference. On the contrary, the fact that you are one of millions affected makes your case stronger. What keeps the courts out of legislation and budges is the separation of powers, and the fact that nobody is directly harmed by them.
By the way, the same principle explains why New York streets are filled with unlicensed vendors of books, art, etc. The city has a law requiring a license of anyone selling anything in the street, and naturally that would apply to these dealers too. However following the Civil War it made one exception: for wounded veterans. They are allowed to sell anything in the street and need no license. That seems very reasonable and limited, but once the city makes this one exception it must make the same exception for vendors of all constitutionally protected goods, such as printed matter, videos, art, etc. This also explains the legality of the arba-minim markets that crop up on the streets in the week before Sukkos. The city could get rid of all of these if it were to revoke the veterans’ exception, but it won’t do that.
No, those are illegal and when the cops come by they try to hide it. But those selling printed material, drawings, etc. are perfectly legal. So are the arba-minim dealers.
Dear Milhouse,
Rav Forschiemer of Lakewood started the rodef reference. He was talking about gatherings ending upon social media.Dear Common,
How about PayPal? I tried, but pay stub are not used anymore. You have not given an opinion about the ethics of bringing this case. I do not see a disagreement.Dear Doing,
The government is deciding what amount of traveling and congregating is allowed. Religion in America today has nothing to say about religion. That is why the youth today have all the sociall justice that is unjust and anti-social.@n0mesorah
Stop making absolute generalizations for things you are not the authority.
Many companies still issue paychecks with stubs, including my law firm.
I administer a trust that runs 14 McDonald’s (long tern non-Jewish client family) They issue more than 2,000 payroll payments every two weeks. Some employees chose direct deposit, some want checks. A checkstub is attached to the actual paychecks and those with direct deposit get a check marked non-negotiable without the micro-encoding but with a stub with full wages and tax deduction breakdown.Dear Common,
I could not get you a pay stub, only a paypal email. I see you call this a government overreach. It was not Governor Murphy’s intention to interfere with any rights, he was trying to govern the crisis. I knew that governing by the government is highly unpopular these days. I did not know it was unconstitutional.“people are suing for governmental overreach”
Coercive public health measures are not governmental overreach. See for example Jacobson v. Massachusetts in which the Supreme Court allows forced vaccinations, which is much more coercive than anything anyone has done in the coronavirus pandemic.
What distresses me more here is supposedly frum Jews whining about rights. Judaism is not about rights. Judaism is about obligations. And we have an obligation not to endanger others.
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