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178 – What Happens When Courts Don’t Follow the Law

It seems everyone who has a complaint with government goes running to the courts to solve their problems. Not only is that a bad idea, but what happens when the courts don’t bother following the law anymore?

We the People really need to get out the the habit of running to government to fix the problems of government. It seems every infringement on our rights is met with a chorus of cries to take someone to court. While there is a time and a place to get the opinion of a court, we have changed them from powerless arbiters of fact and law into oligarchs dispensing their opinions with the force of law. However, the question still remains: What happens when the courts don’t bother to follow the law?

Let’s look at the request SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL. South Bay United Pentecostal Church applied to the court for an injunction against Governor Newsom. This injunction was to prevent the State of California from enforcing his order limiting the occupancy of the church.

The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency.

Chief Justice Roberts concurrence, South Bay United Pentecostal Church v. Newsom.

The church claimed that the governor’s order discriminated against places of worship by placing greater restrictions on them than on other businesses. The court, which denied the injunction, seemed to focus on the question of whether or not this was a violation of the Free Exercise Clause of the First Amendment.

First Amendment

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment.

Chief Justice Roberts concurrence, South Bay United Pentecostal Church v. Newsom.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Constitution, Amendment I

As I’ve said several times before on this blog, this is not a First Amendment issue. Governor Newsom is not an agent of Congress or the federal government. Since he is not acting under a law made by Congress, the First Amendment does not apply. But what about the Constitution of the State of California?

Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.
A person is not incompetent to be a witness or juror because of his or her opinions on religious beliefs.

California Constitution, Article I, Section 4

Since Governor Newsom has put the occupancy restriction in place to ensure the safety of the state, it is not a violation of this section of the Constitution of the State of California either. Which means this is where the problems with courts today begins.

I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

As I’ve already shown, since the law in question is not an act of Congress, it cannot be a violation of the First Amendment to the United States Constitution. This could be considered a violation of the California Constitution, Article I, Section 4, if it can be shown that the order was not necessary to maintain the safety of the state. Since so many of the American people genuflect to the opinion of these oligarchs in black robes though, let’s dissect their opinion.

In response to the COVID–19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

“Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?”

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

Justice Kavanaugh makes a very important point. The occupancy restriction is not being equally applied to everyone in California. While Justice Kavanaugh claims this is a violation of the First Amendment, it is actually a violation of Article I, Section 4 of the California Constitution.

In my view, California’s discrimination against religious worship services contravenes the Constitution. As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” McDaniel v. Paty, 435 U. S. 618, 639 (1978)

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

Not only is Justice Kavanaugh applying the First Amendment to a case where it plainly does not apply, he is using an opinion of another justice to supersede what the Constitution actually says. The First Amendment does not say anything about using religion as a basis of classification, only that the federal government cannot establish or prohibit its free exercise. The only language I can think of that comes even close is the prohibition of a religious test to hold office (Article VI, Clause 3). Justice Kavanaugh goes on to use another opinion to add language to the Constitution.

To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Lukumi, 508 U. S., at 531–532.

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

Nowhere in the Constitution is the government authorized to use discriminatory treatment of anyone under any circumstance without due process of law. There is nothing in the Constitution about a “compelling governmental interest”, much less using it as justification for discriminatory behavior. In fact, if we go back to the Declaration of Independence, we see the primary “compelling governmental interest” is in protecting the rights of the people.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

Declaration of Independence

Twisted Logic

That was the opinion of the dissenters. So what about those who prevailed?

Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Chief Justice Roberts concurrence, South Bay United Pentecostal Church v. Newsom.

In the opinion of Chief Justice Roberts and the others who concurred, our rights and liberties can be infringed upon as long as there are others who are equally or more severely restricted. He also claims that your rights can be discriminated against as long as those with more favorable treatment aren’t too similar. I wonder if they would feel the same if it was their rights being infringed upon? Can the government restrict your freedom of speech as long as they restrict someone else’s more? Can the government deprive you of your life, liberty, or property as long as those they protect are dissimilar enough? If so, then what you have is not an unalienable right endowed by your creator, but a privilege given to you by government.

Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905).

Chief Justice Roberts concurrence, South Bay United Pentecostal Church v. Newsom.

Again we see judicial opinion placed above the supreme law of the land. Nowhere in the Constitution does it “entrust the safety and health of the people” to the government. The only place the word “safety” even appears in the Constitution is the authority in Article I as a justification for the suspension of the Writ of Habeas Corpus (Article I, Section 9, clause 2).

My Opinion

If I were on the court, I would have voted in favor of the injunction, but not for any of the reasons given.

First, “occupancy caps” violate the California Constitution. Unless the state can prove that classifying religious gathering differently than any other is necessary to maintain safety, these caps violate the state’s free exercise clause. They also violate the right of the people to assemble.

The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good.

California Constitution, Article I, Section 3(a)

Since neither of those are federal issues, if they were the only question I would have to vote no. There is, however, a violation of the U.S. Constitution’s Privileges or Immunities and Equal Protection Clauses.

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Constitution, Amendment XIV

The state has clearly deprived its citizens of the liberty to act as they will and the property of both of their buildings and their rights. Furthermore, since this order restricts churches more severely than other organizations, the state has clearly denied their attendants equal protection of the law. For those reasons, and those reasons only, I believe a federal court should enjoin the state from enforcing this order.

Conclusion

Further proof that the courts can no longer be trusted to protect your rights, even the justices that believed the church should have gotten its injunction were horribly wrong.

California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices.

Justice Kavanaugh dissent, South Bay United Pentecostal Church v. Newsom.

Where in the Constitution are the people required to be trusted by the government for anything? It is the people who trust those in government to act in accordance with their oath to support the Constitution. And it is the power of the people, when that trust is broken, to remove the offending official, either directly through election or by proxy of their elected representatives by impeachment. The very idea that the people need the government’s trust in order to act is an inversion of the Constitutional Republic our Founding Fathers, along with millions of Americans, have fought and died for.

That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Declaration of Independence

When will the American people have enough of these usurpations? Not just the governors trampling on our rights, but of those on the courts rewriting our laws and constitutions to meet their ends. When will we have enough of suffering these evils? Will we come to our senses in time to alter our government at the ballot box? Or will we wait until the only option is to do so on the battle field?

Paul Engel

Like many of you, I am a product of the public schools. Like many of you I thought the Constitution was for lawyers and judges. One day I read the Constitution, and was surprised to find I didn't need a law degree to understand it. Then I read the Declaration of Independence, the Federalist Papers and even the Anti-Federalist Papers. As I learned more and more about our founding fathers and documents I saw how little we know about how our country was designed to work and how many people just didn't care. I started The Constitution Study to help those who also want read and study our Constitution.