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https://www.reuters.com/article/us-health-coronavirus-usa-court/u-s-supreme-court-backs-religious-groups-over-new-york-virus-curbs-idUSKBN2860CK

NY State sought to limit in person worship to 25 in general, 10 in covid hot spots.

From the BBC's coverage

"even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here... strike at the very heart of the First Amendment's guarantee of religious liberty."

Now, I totally get that limiting worship in normal times is explicitly a no-no by the constitution. I also don't want to debate whether or not this particular limitation on churches is justifiable compared to restrictions on other activities.

My question is solely limited to: is there a mechanism under which temporary suspensions/limitations of certain constitutional guarantees can be put in place in case of national emergencies? Whether or not they should be applied in this particular case, is another question, which would likely devolve into opinions.

I don't really see this as a legal question, rather it is a question about the politically-decided operational framework under which US law gets administered.

Edit: To be clear temporary is a key point in my question. Normal, established permanent limitations on any of the rights - "You can't shout fire in a crowded theatre without a reason" - are out of scope.

I'm asking about mechanisms that allow adjusting/limiting/suspending normally constitutionally-protected rights, that can be put in place, on a time-limited basis, whether regionally or nationally, on the basis of an emergency.

And, just to be clear, also waaay short of the nuclear option of "declaring martial law".

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  • I don't know if it's an answer, but the plain text of the first amendment specifically prohibits Congress from making laws that interfere with religion. There's nothing in it that directly prohibits the executive branch from issuing orders that happen to do so. Of course, there needs to be a law authorizing said orders to be issued, but if the law simply says "Governor may order closures in case of public emergency", then neither the law nor the governor is in direct violation of the First. Whether the courts would back that, or whether anyone else has made that argument, I don't know. – Bobson Nov 26 '20 at 19:42
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    I’m not sure I agree that “limiting worship in normal times is explicitly a no-no”. After all, at least until now, no one has a problem with the fact that churches are bound by the maximum occupancy set by the fire code. – divibisan Nov 26 '20 at 23:54
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    @Bobson it is well established that the restrictions imposed on congress by the bill of rights also apply to the executive. Furthermore, the first amendment explicitly only proscribes laws that establish a religion or prohibit the free exercise of religion, but it is also well established that this results in a wider prohibition against discriminating against religions, for example if rules regarding closure have a discriminatory effect, despite being facially neutral, because of how they are applied. – phoog Nov 27 '20 at 20:37
  • @divibisan IANAL but it would seem relatively trivial to argue that was is being limited in that case is not the act of worship but rather the purposes for which a given building can be used. – Italian Philosophers 4 Monica Nov 27 '20 at 21:53
  • @ItalianPhilosophers4Monica But that’s exactly what is happening in this case as well. The case was about limits on occupancy during the pandemic, there were no bans on worship, just a temporary occupancy limit of 10 or 25 people depending on pandemic severity – divibisan Nov 28 '20 at 18:00
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Does the Constitution/Bill of Rights allow for temporary restrictions in case of emergencies?

Yes. Such restrictions must meet certain tests, among which are "appropriately tailored to achieve a sufficiently important government interest", taken in good faith and have a factual basis that the restrictions are necessary to maintain order.

It doesn't matter whether the emergency is national, state, or local. If it is recognized as an emergency, then temporary restrictions may be applied.


In the Congressional Research Service report, Freedom of Association in the Wake of Coronavirus, April 15, 2020,

Government regulations of speech are often subject to heightened levels of scrutiny, meaning that a state must show that its regulation is appropriately tailored to achieve a sufficiently important government interest. At the same time, states have broad “police powers” to adopt measures that are “essential to the public safety [and] health,” so long as the state (1) acts in “the interests of the public generally” as opposed to “those of a particular class,” and (2) uses “reasonably necessary” means that are “not unduly oppressive upon individuals.” The question becomes how to reconcile these two disparate standards during a pandemic.

The Supreme Court has said that “[e]mergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved,” by the Constitution. But “emergency may furnish the occasion for the exercise of power.” [...] Reasoning that courts should grant governing officials “the proper deference and wide latitude necessary for dealing with the emergency,” these courts have applied flexible standards in reviewing alleged infringements of civil liberties that echo the “reasonably necessary” police powers standard. For example, in upholding a county curfew following Hurricane Andrew, the Eleventh Circuit asked only whether the government (1) took that action in “good faith,” (2) with “some factual basis” that the restrictions were “necessary to maintain order.”

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  • Furthermore, permanent restrictions that meet these tests are permitted in situations that are not emergencies. This is implied in the last paragraph of the quoted material. – phoog Nov 27 '20 at 20:14
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There are only a few parts of the constitution that can expressly be temporarily suspended. For example Art 1 Sec 9:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

So in a war, Habeas Corpus may be suspended (as it was in the Civil War). But not otherwise.

More generally, interpretations of the Bill of Rights understand all the enumerated rights to be limited. The right to free assembly does not mean any number of people can assemble at any place at any time and for any reason. The exercise clause does not allow any action to be legitimised by the claim it is the exercise of a religion. If one sincerely believes in human sacrifice, that's okay, provided you don't actually do it. That is a clear restriction on religious practice, but the exercise clause is not understood to permit human sacrifice. More practically, the court has on several occasions established that anti-polygamy laws are legal. Laws that denied unemployment benefits to Indians who were fired for taking peyote were legal (even though peyote was claimed to be part of a religious rite).

So common law, that underpins the interpretation of the constitution, allows for restrictions on rights when such restrictions are necessary, and the court has, over the years developed case law on what practices are unrestricted and what practices may be restricted. The key here is "necessary".

In an emergency, it is possible that an activity that was unrestricted normally may necessarily be restricted. This is always a balancing act, since "necessarily" is hard to Judge. This is the role of the courts: to look at precedent make judgements in accordance with the Law. However in any a particular situation, the decision of the court may be hard to prejudge.

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  • To be clear, temporary, is a key point in my question. The fact that human sacrifice or poygamy not allowed, notwithstanding freedom of religion, has limited bearing to my question considering that it is established law and not temporary. I'm asking about mechanisms that allow adjusting/limiting/suspending normally constitutionally-protected rights, that can be put in place, on a time-limited basis, whether regionally or nationally. And, just to be clear, also waaay short of the nuclear option of "declaring martial law". – Italian Philosophers 4 Monica Nov 26 '20 at 20:25
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    The point Im making is that necessary restrictions have been allowed. But what is "necessary" is a moving target. Something may become necessary due to changing events. If that state is temporary then there is a common law justification, if not a Constitutional one. – James K Nov 26 '20 at 20:39
  • Seems kinda circular reasoning. The state order on limiting attendance in person is thrown out on basis of being unconstitutional, but you're telling me that being temporary, it is not a constitutional, but common law issue. – Italian Philosophers 4 Monica Nov 26 '20 at 20:44
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    I wasn't talking about the particular case. Your question says not to consider this case. There is no mechanism in the Document of the Constitution. However the courts have repeately judged that necessary and reasonable restrictions can be made to the enumerated rights. That can be temporary or not. The temporary aspect is a total red herring. If the restriction is reasonable it can be upheld. In this case the court decided that it wasn't neccessary or reasonable and so struck it down. All normal US court stuff – James K Nov 26 '20 at 21:01
  • I may have been unclear. I meant that I did not want to debate whether or not this particular case merited government intrusion from a health standpoint. However, the BBC comes across as "sorry, no dice. 1st Amendment". My question is very much whether the government can override 1st amendment, in this and similar cases. Not whether it is justified to actually do so - that's the debate I dont want too get into. In any case, previous SC referrals re. Covid and worship limits did not result in injunctions. – Italian Philosophers 4 Monica Nov 27 '20 at 0:11
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In cases of governments being allowed to infringe on constitutional privileges the doctrine of strict scrutiny is generally applied. This is especially the case for first amendment issues. The requirements of strict scrutiny must satisfy three requirements.

  1. The government must show a compelling interest which generally means national security, preserving life, or preventing worse infringement.
  2. The law must be narrowly tailored so that all parts of it relate to the compelling interest.
  3. The law must be the least restrictive means of accomplishing the above compelling interest.

In most cases laws held to this are struck down, in the case of Covid restrictions it would likely come down to showing less restrictions in place on equivalent places of gathering similar to places of worship in order to overturn such a rule.

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  • I haven't read the decision, but from what I've read about it it seems that the second and third prongs of the test may have been implicated here. It's not clear to me which part of the test would be susceptible to evidence of "fewer restrictions in place on equivalent places of gathering," but if anything such places are subject to greater restrictions, not fewer (that is, they're not allowed to open at all). – phoog Nov 27 '20 at 21:05
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Let's be clear: The US government (on any level) does not need an emergency of any sort to abridge the rights and liberties of individual citizens. The fact that we have laws, courts, and jails is all the evidence we need for this. A government passes laws to restrict certain kinds of behavior — for the benefit of all citizens — and then punishes individual citizens who refuse to comply by restricting or removing some of their rights, liberties, and freedoms. The federal government and many state governments reserve the right to put citizens to death under certain circumstances, taking away those citizens' fundamental right to life; if a government can take away that right, why would any lesser right be sacrosanct?

The Bill of Rights isn't meant to dictate what the government cannot do, despite its strong declarative language; it is not written out in stone like the Old Testament commandments. The Bill of Rights is meant to outline what the government should not do, and to give citizens legal remedies against the government if the government does it anyway. The nature of this legal remedy is that citizens can force the government to justify its actions in court, where the court can then weigh the benefits of the government's actions against the harm done to the citizen. Any governmental action might pass judicial scrutiny if the reasons presented are compelling and the harm expressly minimized. But the Bill of Rights allows those reasons and harms to be forced out into the light of day, where they can be examined and evaluated.

The Bill of Rights could not preclude slavery or Jim Crow; the deep south states went ahead and passed laws that discarded or delimited the rights of African Americans regardless. But the Bill of Rights was the fundamental wedge that brought slavery and Jim Crow to an end, because it was the Bill of Rights that African Americans leaned on to make their voices heard.

Like everything else in US politics, the process is far from pretty. Generally it ends up pitting the selfish interests of one group against the selfish interests of another, all with the general public interest as a backdrop, and involves all sorts of shouting and keening and moaning. Some poor, put-upon judge has to create a credible balance between the interests of this one and that one and everyone, and doesn't always do it well. But there are no hard and fast rules to it. Any behavior that is contrary to the public good can be suppressed — religious expression, freedom of speech, and the right to assemble notwithstanding — so long as the public need is significant and the harm done is neither permanent not excessive. Those who think their group has blanket immunity from governmental interference just because they are a religion are as blindly authoritarian as those who think the government can impose harsh restrictions just because it is the government. In the end, the Bill of Rights forces both to justify themselves before their fellow citizens.

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    this does remarkably little to address the actual question. – Italian Philosophers 4 Monica Nov 27 '20 at 19:29
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    The statement "the Bill of Rights isn't meant to dictate what the government cannot do" is directly contradicted by the first sentence in the bill of rights (as adopted): "Congress shall make no law..." – phoog Nov 27 '20 at 20:21
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    @phoog: apologies, but please on't be naïve. The amendment says 'Congress shall make no law that..." without specifying what constitutes 'a law that...'. Congress can pass any law it likes, and then it is up to someone else to assert in court that the law Congress passed is in violation of the constitution. Generally, state and federal legislatures don't test the system too directly; they all have a good idea what will and will not pass judicial muster. But that isn't prevention ab initio; that is a recognition of potential ex post facto reversals. – Ted Wrigley Nov 27 '20 at 20:39
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    @TedWrigley I don't understand why you think this is naïve. If congress were to make a law that restricted the free exercise of religion, it would be struck down in court precisely because it had been made contrary to the first amendment's prohibition on making such laws -- in other words, because the amendment "dictates what the government cannot do" and the law purporting to do the prohibited thing is therefore invalid. The fact that someone has to bring the case before a court in order for that to happen does not change the fact that the bill of rights restricts the government. – phoog Nov 27 '20 at 21:12
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    "Yes, that's what I mean by naïve" explains nothing. To your points: (1) is a fundamental misunderstanding of what it means for something to be forbidden. I am "perfectly capable" of stealing from a store, but that doesn't mean that the law doesn't "dictate what I cannot do"; (2) a court cannot punish me for stealing unless a prosecutor first indicts me, but that doesn't mean that the law "doesn't dictate what I cannot do"; and (3) arguments from both sides do not change the fact that the law says what it says: I can't steal, and the federal government can't prohibit free exercise of religion. – phoog Nov 28 '20 at 7:25

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