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Any librarian can tell you book banning never goes completely out of vogue. Even in quiet years they field occasional gripes about ribald DVDs or the more comprehensive guides on sex education in the young readers section.

This past year, however, was far from quiet. Book banning, in both public schools and public libraries, is having a moment. Uproar over Nobel laureate Toni Morrisons masterpiece Beloved was arguably a deciding issue in the 2021 Virginia governors race. Texas conservatives are in hot pursuit of pornography and other obscene content in school libraries, with plans to criminally prosecute whoever put it there.

Here in Arkansas, members of groups like Moms for Liberty in Northwest Arkansas, Safe Library Books for Kids in Jonesboro and Back to Basics in Conway are emailing, organizing and showing up to library and school board meetings to make their case for excising books about gender, sexuality, puberty and racism from any shelves children or teens could happen upon.

Consider the position of the Arkansas-based book banning group Safe Library Books for Kids with empathy, and youll find some genuine anguish at the root of their campaign. Afraid that children who read about sex, gender nonconformity and drugs will have sex, gender bend and use drugs, these parents and grandparents are trying to lock it all down.

If they are reading the inappropriate books being supplied by librarians in schools and public libraries, how can we expect them to then be good. They wont be, and that creates a shift toward evil for society, one of the groups four moderators lamented on their Facebook page, which has attracted more than a thousand followers since it started up in September of 2021. The page chirps and burbles throughout the day with gotcha-style alerts about books to look out for and notices about upcoming library board meetings. (Group moderator Deanne Copeland politely declined to be interviewed for this story, and other group leaders didnt respond to messages.)

One of the complaints that poured into the Craighead County library system about a Pride Month display in the childrens section.

Their arguments dont land for parents who would rather their kids learn about sex and drugs from books than from some guy behind a gas station. And when accusations of pedophilia enter the chat, as they inevitably do, its easy to roll your eyes and tune out.

And arguments from groups like Conways secretive Back to Basics that keeping books on racism in school libraries is the gateway to revolution and the downfall of the American way seem pretty far-fetched.

But this new wave of book banners in Arkansas and across the country is both loud and legion, with deep-pocketed backers, organizational know-how and the discipline to cause real headaches for defenders of First Amendment freedoms. In December 2021, the National Coalition Against Censorship put out a statement against the barrage of attempts to pull books from classrooms and school libraries. The list of co-signers, which includes authors, publishers, the American Civil Liberties Union and many others, is longer than the statement itself.

The law clearly prohibits the kind of activities we are seeing today: censoring school libraries, removing books and entire reading lists based on disagreement with viewpoint and without any review of their educational or literary merit. Some would-be censors have gone even farther, threatening teachers, school librarians, authors and school board members with criminal charges and even violence for allowing students access to books, they said.

Those censors are turning up the heat in community libraries, as well. The American Library Associations Office for Intellectual Freedom reports demands to scrub content from library shelves in 2021 eclipsed any other year in decades.

Anyone in Craighead County with a library card wont be at all surprised at the soaring uptick. A 2021 Pride Month display in the Jonesboro Librarys childrens section, with its seemingly anodyne books about two penguin dads and a bear who felt more like a bunny, set off a months-long battle over what content the library should offer, and where they should keep it. Tempers flared, lines were drawn, opposing Facebook groups sprung up. A political tug-of-war erupted over an open seat on the Craighead County library board, a vacancy that in normal times wouldnt draw much notice. The nascent Citizens Defending the Craighead County Library mobilized to defeat a proposal to give the library board the chore of micromanaging what books and displays the library offers. So far no books have been pulled out of circulation, although some got shuffled to new spots. And library Director David Eckert, wrung out from standing firm against the onslaught, announced in November he was skipping town to take a job in Waterloo, Iowa.

What happened in Craighead County is simply a new chapter to an old book. Works that drove defenders of morality to red-faced fits in the past warrant nary a rise anymore, a reflection of changing times. Holden Caulfields suicidal tendencies and juvenile raunch kept The Catcher in the Rye on banned book lists through the 80s and 90s, but cause few headaches for librarians today. Kate Chopins The Awakening met immediate scorn upon release in 1899, and the attacks didnt let up for decades. But now? Adultery is a yawner after the Trump era, and anyway, who cares if a fallen woman flings herself into the sea?

Book banners have always drawn down on content that reflected societys anxiety flashpoints at the time. Judy Blume sat in the hot seat in the 80s, when her books about the lived experiences and sexual curiosity of pubescent girls made parents squirm. J.K. Rowling came along in the 90s to rile parents who feared their ensorceled children would turn their backs on the church. Today, though, Blumes and Rowlings largely white, heterosexual, economically secure book characters who never scrape with police get a free pass, even as theyre getting their periods or practicing witchcraft.

Patty Hector, now the director of Saline County Libraries, weathered a few waves of censorship over her three decades in the library business in California and Arkansas. She notes a couple of key differences today. The furor over books about gender and homosexuality is a new development, largely because those books didnt exist a decade ago. The same goes for books by and about the hardships and systemic racism people of color experience in the 21st century.

There were very, very few (if any) books on LGBTQ or race issues for most of my career, she said.

The boogeymen have changed, and so has the strategy, Hector said.

People who challenged books werent organized until Focus on the Family came along. That has changed greatly. Now, Hector said, she and other librarians are seeing a lot of form emails and cut-and-paste talking points from groups mobilizing to bury schools and libraries under mounds of complaints.

I respect anyone who has an issue with a book theyve read, and I will read it and talk to them about it. But if an organization tells you that this list of books is bad youre going to have to read it yourself and tell me what it is thats wrong with it before I can consider your challenge. It should be personal, not the opinion of some politician in another state, she said.

Theres no question people from outside of Arkansas are influencing the censorship debate in The Natural State. In Conway, people who came out in October for a meeting of the Back to Basics group reportedly watched a video by a Heritage Foundation fellow and conservative darling whom The New Yorker accused of inventing the controversy over critical race theory. In it, foreboding music plays as Chris Rufo argues that schools are fomenting both racial tension and Marxist revolution by indoctrinating children.

Critical race theory has become a buzzword among conservatives like Chris Rufo, who want to gloss over the countrys racist foundations.

Tiffany Justice, a former Florida school board member and founder of the new group Moms for Liberty, echoed Rufos call for schools to focus on the basics and leave the rest up to parents. Arkansas had only one chapter of Moms for Liberty at the beginning of December, but Justice said three more were coming on line before the end of 2021, with the goal of advocating for parental rights. In Arkansas, school boards set policy on what students have access to. Justice said members of Moms for Liberty will play the long game, building relationships with their board members, rather than just showing up for occasional meetings.

A member of the new group Moms for Liberty speaks at a school board meeting in Fayetteville.

The group will push schools to home in on reading, writing and math, and ditch what Justice calls social-emotional learning, which she explained as both education as therapy and a vehicle for manipulating childrens identities. Public institutions are pushing parents aside and giving minors access to content on pedophilia, bestiality and incest without parents knowledge, she said.

Im shocked at the things being found in youth books, she said, instances of rape and incest and really pedophilia.

Its at this point where we veer over the line into QAnon conspiracy territory, or perhaps its where we drill down to the meat of the matter, depending on your point of view. This is not normal literature. Somethings going on here, Justice said. Theres a concerted effort to sexualize our children at a very young age, and parents are very concerned about that.

Turn off this spigot of information and young people are more likely to be chaste, she argues. If we dont want 12-year-olds having sex all the time, we should stop talking to 12-year-olds about sex all the time.

Claims that books in schools and libraries are the gateway to pedophilia or communist revolution dont fly with the likes of John McGraw, director of the Faulkner County Library System. A soldier in a quiet army of First Amendment defenders, McGraw said libraries serve the community by offering content for everyone. He cites Mark Twains quote: Censorship is telling a man he cant have a steak just because a baby cant chew it. And McGraw promises that if you look hard enough through the shelves, theres something for everybody to get pissed about.

The goal isnt to irritate, but to make sure the needs and interests of every person in the community are represented and addressed, he explained. Were not buying books just because it would be amusing to us for our enemies to be gnashing their teeth.

If the debate is really just about kids reading books their parents dont like, the solution is simple, he said. Parents can monitor what their children check out. If you dont like it, dont read it. Nobodys putting a gun to your head and making you read Fifty Shades of Grey.

If youre placing bets on who will win this fight over what belongs on library shelves, Id go with the librarians. Theyre well-informed, experienced in fending off the book banners, and fierce when it comes to protecting access to information.

Its bad enough that we have to self-censor because we cant buy everything published, but to only buy what appeals to a small segment of the community? And all other opinions are not represented? Have a library filled with stuff thats safe and offends no one? Saline County Library Director Hector said, incredulous. The recent dust-up over LGBTQ and racism content might be a little different from censorship attempts shes weathered in the past, but libraries hardly ever remove books from shelves, and she doesnt expect that to change. Its censorship, far more than any books and curriculum about systemic racism, that threatens the health of the nation. Fighting about it, though, is good, all-American fun.

Its not too grandiose to say that libraries are the last great bastion of democracy, is it? Hector mused. And that a democracy without dissent is not a democracy.

Long gone are the days when parents targeted Judy Blume books over chaste anecdotes about menstruation and breast development. And the ebbing of a satanic panic that gripped the country at the turn of the century means even sorcery and witchcraft get a pass. Materials by and about LGBTQ, Black and brown people are whats clogging up those banned books lists these days, although sex education, that old chestnut, continues to set Southern mamas hands to wringing.

Here are some of the titles Arkansass would-be book banners are fretting about.

Its Perfectly Normal by Robie H. Harris and Michael Emberley

Among the best sex education books out there for families pushing beyond heteronormativity, Its Perfectly Normal is public enemy No. 1 for the group Safe Libraries for Kids. The cartoon drawings of naked people and the frank information about oral and anal sex, masturbation and homosexuality have some people shook.

Wait, What? A Comic Book Guide to Relationships, Bodies, and Growing Up by Heather Corinna, Isabella Rotman, Luke Howard

This illustrated book works hard to reassure anxious young minds that masturbation is fine and normal, and that everyones genitals look pretty weird.

Beyond Magenta: Transgender Teens Speak Out

Real stories about young people coming to terms with their identity and sexuality. Sometimes fairly young kids have sexual experiences, and a few anecdotes are included herein.

George by Alex Gino

A fictional childrens book about a transgender girl struggling to establish her identity with family and friends, this book has ruffled feathers since its 2015 release.

The Hate You Give by Angie Thomas

Black people suffer systemic racism in the form of police brutality. Banners object to the anti-police sentiment.

How to be an Anti-racist by Ibram X. Kendi

Schoolchildren will not read this or any other books about systemic racism in the United States if the Conway-based group Back to Basics or Arkansass four chapters of Moms for Liberty have anything to say about it. They classify such works as indoctrination.

Jacobs New Dress

This childrens book about a boy who likes to wear dresses drew complaints this year from Arkansas parents uncomfortable with gender nonconformity.

And Tango Makes Three by Peter Parnell and Justin Richardson

Gay penguins in New York City (of course) attack the institution of family by hatching an egg and raising their daughter together. This was one of the books included in the Jonesboro Public Librarys 2021 Pride Month display.

Gender Queer by Maia Kobabe

The memoir of a nonbinary, asexual writer with nonconforming pronouns.

Whats Happening to Me? by Alex Frith and Susan Meredith

Run-of-the-mill book on puberty, or a pornographic masturbation fest? Clearly the latter, one Arkansas grandfather said. The attack on our children is relentless and we MUST STAND AGAINST THE EVIL FORCES THAT TRY TO DESTROY OUR YOUTH!!

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Book banning is back: Arkansans try to nix content on sex, gender and race - Arkansas Times

A federal judge is not buying the First Amendment argument that the Proud Boys are spinning in an attempt to evade criminal punishment for their alleged participation in the attack on the U.S. Capitol. U.S. District JudgeTimothy Kellyon Tuesday refused to throw out charges against four members of the far-right groupEthan Nordean,Joseph Biggs,Zachary Rehl, andCharles Donohoewho wereindicted in Marchon riot-related offenses, including conspiracy and obstructing an official proceeding. (All have pleaded not guilty.) Lawyers for the four men had sought to dismiss the charges by arguing, among other things, that the conduct they have been accused of engaging in is protected by the First Amendment right to free speech. But Kelly, an appointee of former presidentDonald Trump, argued thats not how that protection works.

Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on January 6, without resorting to the conduct with which they have been charged, Kelly, wrote in Tuesdays43-page opinion. That conduct includes trespassing, destruction of property, and interference with law enforcement,perBloomberg. Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests, Kelly wrote. Moreover, even if the charged conduct had some expressive aspect, it lost whatever First Amendment protection it may have had.

The four leaders of the Proud Boys are not the only riot defendantsthat the U.S. government has chargedwith obstructing an official proceeding. Prosecutors have relied on the statutewhich carries a maximum imprisonment of 20 yearsto charge hundreds of people involved in theJanuary 6 riot, many of whom have challenged its legality in court,accordingto CNN. Kelly on Tuesday became the fourth D.C. District Court judge toallowprosecutors use of the law to stand, writing that the Court is not persuaded by defendants claim that Congress certification of the Electoral College vote was not an official proceeding. The Proud Boys case is one of the most serious conspiracy cases against Capitol riot defendants, and Kelly siding with the Justice Department gives momentum to prosecutors as they prepare for the first wave of U.S. Capitol riot-related trials beginning in February, CNN notes.

The governments win comes a week after two members of a different right-wing group, the Oath Keepers, tried and failed to get JudgeAmit Mehta,also presidingin D.C.s federal court, to throw out the obstruction charge against them in another pivotal January 6 case. In that case, the defendants were alsounsuccessfulin arguing that Congresss certification of the electoral results was not an official proceeding and that their alleged activities were protected free speech.

As prosecutors win support for their use of the obstruction charge against January 6 defendants, Representative Liz Cheney(R-Wyo.) hasraised the prospectofDonald Trump himself facing possibleobstruction chargesdepending on what new evidence the panel finds. Cheney, the vice-chair of the House committee investigating the insurrection,referencedthe criminal statute earlier this month at a House panel hearing where she pushed forMark Meadows, Trumps last White House chief of staff, to be held in contempt for refusing to cooperate. (The Houseeventually did hold him in contempt.) Meadowss testimony, Cheney said, will bear on a key question in front of this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congresss official proceeding to count electoral votes?

Meanwhile, the panel has beenramping up in recent days and is potentially turning to other members of Trumps inner circle, such asRudy Giuliani, to gain more insight into Trumps involvement in the insurrection.

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Judge to Proud Boys: No, Violently Storming the Capitol Isnt a First Amendment Exercise - Vanity Fair

Last week, Jackson Mayor Scott Conger opened a minor can of worms when he shared a Christmas card quality photo of himself and his family in Downtown Jackson.

He opened the post by asking how we can honor the birth of Christ and then posted James 1:19-20 My dear brothers and sisters, take note of this: Everyone should be quick to listen, slow to speak and slow to become angry, because human anger does not produce the righteousness that God desires.

He then wished everyone reading a Merry Christmas.

By the time Christmas was over, there were more than 400 comments on the post with many of them wishing Merry Christmas back to the mayor and some even acknowledging their appreciation that he would mention Jesus Christs birth in his holiday message, something that many government officials opt not to do for varying reasons.

But among the more than 400 comments were a few that accused him of violating the First Amendment, specifically the part about freedom of religion.

Conger actually replied to a couple of them defending his statement with another part of the First Amendment, freedom of speech.

Now Im all for constructively criticizing Jacksons mayor as much as the next person when its warranted, but I dont think this is one of those times.

A lot of people seem to misunderstand the freedom of religion part of the First Amendment.

They seem to expect that when a person is elected to office or hired for a job within the government that theyre expected to leave their religion outside City Hall or the Courthouse or the White House or wherever theyre serving.

But thats not the case.

When the nations founding fathers wrote the Constitution and the Bill of Rights, they were trying to make a nation that was the exact opposite of the nation they were breaking free from in England.

And that country imposed a national religion and expected all citizens to follow that religion if they wanted to be a part of that country or its empire.

So freedom of religion keeps the United State of Americas federal government and every state and local government within its borders from forcing a certain religion or any religion for that matter on its citizens.

It doesnt keep religion out of government.

It doesnt mean that a person who claims to be a Christian and runs for mayor is to refrain from praying or going to church or reading the Bible or anything like that while he or she is in office for four years every time he or she is elected.

If were to use Conger in this example, he just cant make any executive orders or push the City Council to pass any resolutions forcing or prohibiting one particular religion on Jacksons citizens.

I can tell you that one of Congers early executive orders during the pandemic had a line that was difficult to decipher regarding churches meeting, and I had conversations with city officials on a specific Friday in the spring of 2020 letting them know we at The Sun were prepared to do appropriate reporting that weekend and the following week if the executive order did restrict gatherings at church and law enforcement did enforce it before I was assured that the order was not prohibiting religious gatherings.

Faith may play a role in decisions he makes. At the state level, Gov. Bill Lee isnt shy about how his Christianity influences him to make some of the decisions he makes. And of course that brings out similar accusations against Lee that Congers Merry Christmas post did.

Of course a Merry Christmas wish from a city mayor and a policy declaration by a state governor are two different things with different ramifications.

But the checks and balances system of our government is in place for when that gray area of religion in government tends to get too dark on the side of religion if a policy affects a person or group of people too much.

But checks and balances do not affect whether or not someone can say Merry Christmas. And no ones First Amendment rights were violated last week with Congers post.

Save that argument for when it matters.

Brandon Shields is the editor of The Jackson Sun. Reach him at bjshields@jacksonsun.com or at 731-425-9751. Follow him on Twitter @JSEditorBrandon or on Instagram at editorbrandon.

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First Amendment is freedom of religion, not from it | Opinion - The Jackson Sun

In the first reported interpretation of a 2021 amendment to CEQAs statute of limitations provisions, the First District Court of Appeal addressed whether an action against a lead agency must be dismisseddespite being filed within the limitations periodbecause of a failure to [timely name and serve] necessary third parties. Save Berkeleys Neighborhoods v. The Regents of the University of California (Collegiate Housing Foundation, American Campus Communities, et al.), 70 Cal.App.5th 705 (2021). Acknowledging that the Legislature sought to provid[e] a bright-line rule as to which persons must be named [and served] in the CEQA complaint, the Court nonetheless decided that Code of Civil Procedure Section 289(b)s equitable test for determining indispensability still applies to determine whether an incurable failure to timely name and serve real parties requires dismissal of the entire action.

The Regents of the University of California filed a notice of determination on May 17, 2019, regarding certification of a Supplemental Environmental Impact Report analyzing an academic building, campus housing and parking project approved by the Regents for the Berkeley campus. The NOD identified American Campus Communities and the Collegiate Housing Foundation as the parties undertaking the project. Save Berkeleys Neighborhoods June 13, 2019 petition for a writ of mandate failed to name either ACC or CHF. A first amended petition filed on September 18, 2019, added ACC and CHF as real parties in interest, and a first amendment to the first amended petition subsequently sought to add various ACC entities as real parties.

ACC and CHF argued that the incurable failure to timely name and serve persons identified on a NOD as undertaking a project requires dismissal. The First District rejected this argument, relying on legislative history to resolve textual ambiguities in Section 21167.6.5 and preserve the applicability of an equitable indispensable party analysis in CEQA actions.

Prior to 2012, Public Resources Code Section 21167.6.5(a) required that any recipient of an approval be named and served in CEQA actions as real parties in interest. However, then-applicable PRC Section 21108(a) did not require state agencies to identify the recipient of an approval on NODs. Courts enforced Section 21167.6.5(a) by 1) identifying the approval subject to challenge and the recipients thereof, and then 2) applying Code of Civil Procedure Section 389(b)s equitable balancing test to determine whether unnamed approval recipients were indispensable such that an incurable failure to name them requires dismissal of the entire action.

Assembly Bill 320 (2012) amended Section 21108(a) to require state agencies to identify on notices of determination those undertaking a project supported by contracts, grants, subsidies, loans, or other forms of assistance from one or more public agencies or that involves the issuance to a person of a lease, permit, license, certificate, or other entitlement for use by one or more public agencies. Public Res. Code 21065(b) and (c). AB 320 also amended Section 21167.6.5(a) to replace the phrase any recipient of an approval with the person or persons identified by the public agency in its notice filed pursuant to Section 21065(b) or (c).

The Court of Appeal held that amended Section 21167.6.5(a) does not require dismissal for failure to timely name and serve as real parties those identified on a NOD as undertaking a project. It ruled that the use of shall in 21167.6.5(a) (The petitioner or plaintiff shall name, as a real party in interest ) only requires that parties shall file and serve the real parties in interest within a limitations period Failure to do so excludes real parties in interest from the action. The statutory language does not expressly condition a petitioners ability to bring suit upon the inclusion of the real parties in interest.

Having found AB 320s amendments left Section 21167.6.5(a) silent as to the impact on a partys failure to name and serve the real parties in interest, the Court of Appeal concluded that the Legislature sought only to eliminate uncertainty arising from parties and courts independently assess[ing] which entities qualified as recipients of an approvalnotoriously complex inquiries often involving numerous sub-inquiries. The Legislature, however, did not address the courts use of CCP Section 389(b)s equitable balance test to determine indispensability. Reviewing the legislative history, the court noted that the Senate deleted a provision in the Assembly version of the bill that allowed a CEQA legal action to be dismissed for failure to serve the recipients of the lead agencys approval with the petition or complaint. The opinion also referenced the Legislatures expressed intent to prevent the dismissal of important and meritorious CEQA cases, observing that [t]he approach advocated by appellants would increase dismissal of CEQA cases.

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Failure to Timely Name and Serve Real Parties In Interest Does Not Warrant Dismissal Of An Entire CEQA Action if The Unnamed Parties Are Not...

Omicron is still raging across the country, but this holiday season it was houses of worship, not the state, that decided whether to gather or move celebrations online.

Governors and mayors are still issuing restrictions in the name of safeguarding the public, like requiring vaccine passports. But they are not shuttering houses of worship the way they did early in the pandemic.

That may be because last year, the U.S. Supreme Court erected a firewall around religious liberty. And that firewall appears to be holding.

In Roman Catholic Diocese of Brooklyn v. Andrew M. Cuomo, the court schooled the executive branch: (T)he Constitution cannot be put away and forgotten.

The high court overturned restrictions in California, Nevada and New York that regulated worship more harshly than economic activity. For instance, Nevada capped religious services at 50 people, while casinos could operate at 50% capacity. California even encroached on in-home worship, prohibiting more than three families from worshipping in a persons home or backyard.

Many people reflexively side with public health, for good reason. The coronavirus has yet to relinquish its grasp on society. But we cannot overlook the degree to which worship was relegat(ed) to third-class citizenship, as charged by the South Bay United Pentecostal Church, which twice reached the Supreme Court in challenging Californias orders.

In early 2020, South Bay simply wanted to open. California said no one could safely worship, even in the most cavernous cathedral. In May 2020, California allowed 100 worshipers. South Bay wanted to serve more. The church pointed out that California permitted factories and restaurants to reopen with safeguards; why couldnt the church?

That same month, the Supreme Court narrowly sustained Californias 100-person cap on worship gatherings, citing a century-old case holding that (o)ur Constitution principally entrusts (t)he safety and the health of the people to the politically accountable officials of the States.

But by February 2021, with vaccines becoming available, the court lost patience. Lacking sufficient justification, it struck the cap. Deference, though broad, has its limits, Chief Justice John Roberts noted.

Many ascribe the Supreme Courts intolerance of worship restrictions in 2021 to the addition of Justice Amy Coney Barrett, but the justices were simply applying precedent.

Singl(ing) out houses of worship for especially harsh treatment draws strict scrutiny, the Supreme Court held in 1993. This means that the government must show a compelling interest and no less restrictive means to achieving exceedingly important ends. Yet these orders read like edicts, Justice Neil Gorsuch would later say, because almost no explanation was given.

Californias orders are a prime example. In press conferences about the states 100-person cap, Gov. Gavin Newsom cited stock CDC guidance about the need to contain the contagion given spiraling case numbers. When asked by reporters why he was applying specific and different caps on places of worship and not schools, Newsom said, Perfects not on the menu.

He did not explain what factors guided Californias categories or why people mixing from far and wide in an enclosed space was a problem in church, but not in factories. The Constitution and the First Amendment were nowhere mentioned.

Two Californians sued over the restrictions on in-home worship. They challenged why they could watch John Legend sing outdoors ... (but not) host their faith community in their backyard.

True, worship gatherings had acted as super-spreaders early on. But so had factories, meatpacking plants and nursing homes. According to California, factories were safe because entry could be staggered. But the litigants offered to stagger the congregants entry and implement requirements for social distancing and masks.

Calvary Chapel in Nevada sued Gov. Steve Sisolak twice, asking to host worship services on the same terms as casinos at 50% capacity, not just 50 people.

Gorsuch skewered the disparity: (T)here is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Later, the federal courts struck Nevadas scheme as discriminatory, violating the First Amendment.

New York also violated a cardinal First Amendment rule. It created cluster zones, with the tightest restrictions in the center and looser ones moving outward. On CNN, then-Gov. Andrew Cuomo blamed the ultra-Orthodox community for creating clusters. Catholic schools happen(ed) to be in the zone, too.

In red zones, houses of worship could accommodate 10 or fewer people, yet essential businesses like warehouses faced no caps. In yellow zones, places of worship were capped at 50% capacity; restaurants in yellow zones at that time had no cap on the total number seated.

Agudath synagogues and Brooklyns Roman Catholic Diocese both sued Cuomo, charging that he was targeting religion.

During litigation, the governors experts could cite no evidence of spread from the Orthodox community and admitted that the Brooklyn diocese was in fact taking the necessary precautions, just as essential businesses do.

The Supreme Court struck New Yorks policy, finding that it discriminated against people of faith.

Adding insult to injury, all three states permitted places of worship to reopen only after services deemed essential, like liquor stores and bike shops.

These ill-constructed orders were expensive. All three states paid hundreds of thousands of dollars in attorneys fees. Thankfully, during this holiday season, governments have not retread these orders.

If omicron or another variant forces more restrictions, governors and mayors would do well to construct coherent policies and transparently explain them from the beginning. Asking people to forego worship, an important source of support during crisis, should only happen when governments articulate the criteria for restricting core liberties in such a way that all of us can understand the need.

Robin Fretwell Wilson holds the Mildred Van Voorhis Jones Chair in Law at the University of Illinois College of Law and is a Public Voices fellow with The OpEd Project.

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COVID and churches: Can the government force churches to close? - Deseret News