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On Dec.16, 2020, in Midway Venture LLC v. County of San Diego, the San Diego Superior Court preliminarily enjoined enforcement of two COVID-19-related California public health restrictions as applied to two adult entertainment businesses and all other San Diego County businesses with restaurant service.

The California Court of Appeal did not take long to weigh in.

On Jan. 22, in the first published court of appeal opinion regarding the constitutionality of California's COVID-19 public health restrictions as applied to businesses, the Fourth Appellate District of the California Court of Appeal reversed.[1]

The court of appeal's opinion illustrates the steep and narrow path to challenging California's COVID-19-related public health restrictions, even in connection with activities protected by the First Amendment, albeit in its outer ambit.[2]

The Trial Court's Opinion

Pacers and Cheetahs two San Diego adult entertainment businesses with restaurant service alleged that enforcement of California's regional stay at home order[3] and Blueprint for a Safer Economy infringed their First Amendment right to expressive conduct. The plaintiffs had been barred from staging live performances for most of the pandemic and attempts to restart performances had been met with cease-and-desist orders from local authorities.

The trial court found that the plaintiffs were likely to succeed on their claims and issued a preliminary injunction. It noted that nude dancing constitutes expressive conduct warranting First Amendment protection.

Moreover, citing a statement by a San Diego County public health official that "penalizing sectors like restaurants and gyms for the case increase is wrong," the court determined that the county had offered no evidence that San Diego restaurants present any health risk.

The court also questioned whether any rational nexus existed between restaurants offering live entertainment and hospital capacity in the Southern California region the metric that triggered more stringent restrictions under the regional stay at home order.

Finally, although the plaintiffs had focused on the First Amendment protection applicable to nude dancing, the trial court extended the injunction to all San Diego County businesses with restaurant service.

The Court of Appeal's Reversal

The court of appeal reversed on three principal grounds.

First, the court of appeal found that extending the injunction to all San Diego County businesses with restaurant service violated due process. The plaintiffs had only challenged the public health restrictions with regard to live entertainment, and the government defendants had been given no notice that the broader restaurant service restrictions were being challenged.

Second, the court of appeal determined that neither of the public health restrictions ran afoul of the First Amendment.[4] In fact, the court held that the regional stay at home order, which prohibited restaurant service beyond takeout and delivery, did not even implicate the First Amendment.

Applying theU.S. Supreme Court's 1986 opinion, Arcara v. Cloud Books Inc.,[5] the court concluded that the First Amendment applies only when "it was conduct with a significant expressive element that drew the legal remedy in the first place," or "where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity."

The Fourth District concluded that it was the threat of COVID-19 that prompted the regulations; there was no showing that conduct with a significant expressive element drew the restrictions. The court further found that the breadth of the regional stay at home order was inconsistent with any singling out of expressive activity.

Exceptions for religious and political gathering did not demonstrate discrimination against live adult entertainment because the restrictions on entertainment were triggered by the plaintiffs' restaurant service not by the expressive conduct and applied equally to all restaurants.

Because the First Amendment was inapplicable, the court of appeal held that only rational basis review applied to the regional stay at home order. Although it did not determine whether that standard had been met it had not been argued in the trial court the court confirmed that rational basis is an "exceedingly low standard."

A statutory classification survives rational basis review if "there is any reasonably conceivable state of facts that could provide a rational basis for the classification."[6]

The court of appeal determined that the First Amendment did apply to the Blueprint for a Safer Economy order, likely because the blueprint expressly regulated live entertainment at restaurants. Nonetheless, the court found that the blueprint met First Amendment requirements.

Because the state's purpose in regulating live entertainment through the blueprint was unrelated to the suppression of expression, the court applied the U.S. Supreme Court's less stringent four-part test from U.S. v. O'Brien,[7] decided in 1968, rather than the more demanding standards that apply if the government's interest related to expression.

Under O'Brien, courts inquire whether: (1) the regulation is within the government's power; (2) the regulation "furthers an important or substantial government interest"; (3) "the government interest is unrelated to the suppression of free expression"; and (4) "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."

The Fourth District determined that the blueprint met this test. The plaintiffs had conceded the first and second factors in the trial court. The court noted that the government's interest was in preventing the spread of disease not in the suppression of expression.

The court quoted the U.S. Supreme Court's 1989 decision Ward v. Rock Against Racism[8] to elaborate on what sorts of restrictions on First Amendment freedoms are no greater than essential: "So long as the means chosen are not substantially broader than necessary to achieve the government's interest ... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech-restrictive alternative."

The blueprint's restrictions on live entertainment at restaurants met this standard because the state and county parties had shown that public gatherings create a high risk of COVID-19 transmission and the restrictions only limited live entertainment to the same extent they limited restaurant service.

The lack of COVID-19 cases traced to the establishments was not dispositive: "It is the risk of COVID-19 transmission that prompted the restrictions on the adult entertainment businesses. The state and county need not wait until an outbreak has actually occurred at a specific business location."[9]

Third, the court of appeal found that the trial court's preliminary injunction order was overly vague. The injunction purported to allow restaurants to continue operation "subject to protocols that are no greater than is essential to further Defendants' response to control the spread of COVID."

Because the trial court's order did not provide guidance regarding which COVID-19 protocols are essential, it did not provide sufficient guidance to either businesses or the government.

Takeaways

While the court of appeal's opinion in Midway reflects the unique injunction at issue, it also illustrates the narrow grounds upon which businesses might challenge public health restrictions designed to combat the spread of COVID-19.

Even businesses plausibly engaged in conduct protected by the First Amendment will face significant challenges. It is not enough that no COVID-19 cases have been traced to the business, nor is it enough that the government did not use the least restrictive means possible to prevent the spread of COVID-19.

Instead, the public health restrictions related to COVID-19 that have been overturned on First Amendment grounds have singled out protected First Amended activity. For example in November 2020, in Roman Catholic Diocese v. Cuomo,[10] the U.S. Supreme Court invalidated New York state public health restrictions on religious services because "they single[d] out houses of worship for especially harsh treatment."[11]

Other California businesses have challenged California public health restrictions on a variety of other grounds, including under the U.S. Constitution's equal protection, takings and due process clauses, and the California Constitution's right to liberty clause. Success has been elusive.

For example, in May 2020, theU.S. District Court for the Eastern District of Californiain Best Supplement Guide LLC v. Newsom[12] recognized "neither the Supreme Court nor the Ninth Circuit has ever held that the right to pursue work is a fundamental right, entitled to heightened constitutional scrutiny."[13]

While the court of appeal in Midway did not consider these alternative grounds, courts in these cases have made it clear that the path to a successful challenge on non-First Amendment grounds is also narrow. Time will tell whether courts are more receptive to constitutional challenges to California's COVID-19-related public health restrictions as the public health crisis dissipates.

[1]Midway Venture LLC v. Cty. of San Diego, 60 Cal. App. 5th 58 (2021).

[2]Krontz v. City of San Diego, 136 Cal.App.4th 1126, 1132 (2006).

[3] The Regional Stay at Home Order was so called because it broke the state into regions and set restrictions based on the hospital bed capacity in a given region.

[4] The opinion does not address whether the result would differ under the California Constitution's free speech protections, but past cases analyzing restrictions on nude dancing rejected "arguments [that] the California Constitution grants broader protection." Krontz, 136 Cal. App. 4th at 1140.

[5]Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

[6]F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).

[7]U.S. v. O'Brien, 391 U.S. 367 (1968).

[8]Ward v. Rock Against Racism, 491 U.S. 781 (1989).

[9] Midway at 59.

[10]Roman Catholic Diocese v. Cuomo, __ U.S. __, 141 S. Ct. 63 (2020).

[11] On February 5, the U.S. Supreme Court also enjoined enforcement of the Blueprint's ban on indoor religious services in the counties most affected by COVID-19 while the Court considers hearing the case. S. Bay United Pentecostal Church v. Newsom, No. 20A136, 2021 WL 406258 (U.S. Feb. 5, 2021). The Court allowed capacity restrictions and bans on singing and chanting to stay in place. Id.

[12] Best Supplement Guide LLC v. Newsom, No. 2:20-CV-00965-JAM-CKD, 2020 WL 2615022 (E.D. Cal. May 22, 2020).

[13] 2020 WL 2615022 at *6 (quoting Sagana v. Tenorio, 384 F.3d 731, 743 (9th Cir. 2004)) (rejecting constitutional challenges by a gym to state public health restrictions).

The rest is here:
Pandemic Restriction Challenges Face Uphill Battle in California - JD Supra

SALT LAKE CITY (KUTV)

Rep. Chris Stewart reintroduced the Fairness for All Act (FFA) on Friday and is getting support from The Church of Jesus Christ of Latter-day Saints.

Stewart's legislation "harmonizes religious freedom and LGBT rights by amending the Civil Rights Act, protecting religious freedom in the workplace, protecting the rights of LGBT individuals, and preserving 1st amendment rights."

On Thursday, Feb. 25, 2021, the House of Representatives in the United States passed H.R.5, also known as the Equality Act. The bill would prohibit discrimination based on sexual orientation or gender identity. The bill is heavily supported by Democrats but opposed by most Republicans, who have raised concerns over the impact the bill would have on biological women as well as religious freedom.

Amid the legislation, Church Spokesperson Doug Anderson released a statement on Saturday:

Stewart originally introduced the FFA in December 2019 to require fairness in housing and the hiring of gay and transgender Americans. He said in a prepared statement:

MORE ABOUT FAIRNESS FOR ALL

FFA is the largest expansion of religious freedom and LGBT civil rights under federal law in a generation. It continues what began in Utah and builds upon existing protections for both religious and LGBT Americans in federal, state, and local law.

No American should lose their home or job simply for being lesbian, gay, bisexual, or transgender. All religious persons should be free to live, work or serve their community in ways that are consistent with their faith.

FFA preserves the Religious Freedom Restoration Act so it can continue to protect the First Amendment right of all persons to freely exercise their religion.

FFA protects LGBT people from discrimination in employment and housing. It also prohibits LGBT discrimination in a place of public accommodation and significantly expands the definition of public accommodation under federal law.

This bill protects the tax-exempt status of religious organizations and religious colleges and universities. It also protects the right of religious colleges and universitieslike Brigham Young University, Bethel University, and Catholic Universityto uphold their religious standards without jeopardizing the ability of their students to get Pell Grants or of their professors to compete for federal research contracts.

FFA protects the owners of small businesses whose religious and moral principles prevent them from participating in activities that are contrary to their conscience and beliefs.

It protects LGBT Americans from discrimination in jury selection, credit, and federally assisted programs.

Lastly, this legislation protects religious adoption and foster care agencies so they can continue to serve vulnerable children and willing couples, while at the same time ensuring the ability of LGBT persons to adopt and foster children too. Putting the interests of needy children first, the FFA Act expands adoption and foster care by including all qualified potential parents.

Alliance for Lasting Liberty Coalition: The Church of Jesus Christ of Latter-day Saints, American Unity Fund, Center for Public Justice, 1st Amendment Partnership, The Seventh-day Adventist Church, Council for Christian Colleges & Universities, and others.

Cosponsors: Rep. Fred Upton (MI-06), Rep. Elise Stefanik (NY-21), Rep. John Curtis (UT-03), Rep. Mark Amodei (NV-02), Rep. Brian Fitzpatrick (PA-01), Rep. Adam Kinzinger (IL-16), Rep. Andrew Garbarino (NY-02), Rep. Blake Moore (UT-01), Rep. Burgess Owens (UT-04), Rep. Carlos Gimenez (FL-26), Rep. Chris Jacobs (NY-27), Rep. Claudia Tenney (NY-22), Rep. Jeff Van Drew (NJ-02), Rep. Jennifer Gonzalez-Colon (R-PR), Rep. Maria Salazar (FL-27), Rep. Mario Diaz Balart (FL-25), Rep. Mike Simpson (ID-02), Rep. Nicole Malliotakis (NY-11), Rep. Steve Stivers (OH-15), and Rep. Tom Reed (NY-23).

Click here to read the original press release and statements of support.

See the article here:
LDS Church supports Fairness For All Act reintroduced by Rep. Stewart that protects LGBT - KJZZ

In the past 22 years, by working together with our thousands of heroic supporters, weve qualified 17 statewide initiatives for a public vote. They all limited the governments power over us and have saved taxpayers $46.9 billion. And our four two-thirds-vote-to-raise-taxes initiatives have saved taxpayers billions more by stopping and deterring tax increases.

After two decades of effort, vehicle tabs and property tax increases are dramatically lower than they used to be (liberal judges vetoed those initiatives, but the publics overwhelming vote pushed politicians to adopt them anyway), government affirmative action is prohibited, the state auditor conducts performance audits of state and local governments, the King County Council was reduced from 13 politicians to nine, red-light ticketing cameras were banned in numerous cities, and tax advisory votes allow voters to vote each November on tax increases imposed by the Legislature and inform voters which taxes were increased, their costs, and how legislators voted on them.

These amazing accomplishments happened despite fierce opposition from liberals controlling the Legislature, governor, judges and media.

Because I led those efforts and constantly kick the hornets nest of big government, politicians and the press has been gunning for me.

So in 2012, when a reporting complaint was filed against me by a disgruntled former vendor, I knew what was coming: a witch hunt. And because the government had unlimited resources and I didnt, I knew Id never survive it without assistance.

As my attorney (former state Supreme Court Justice) Richard Sanders said: Thousands of people voluntarily chose to help Mr. Eyman and his family there is nothing unlawful about that. People and businesses entered into voluntary business relationships with Mr. Eyman all of them were legal. Mr. Eyman never took money from anyone he wasnt a signer on anyones bank account except his own. In every instance, the money he received came from people who chose to voluntarily give it to him. And he consulted with professionals why wouldnt he? to ensure he was following state and federal laws.

Democrat state Attorney General Bob Ferguson spent nearly $2 million of taxpayer money going after me, my family, friends and supporters. Thats more than all other reporting cases in the last eight years combined!

Generous people responded to my pleas for help, recognized this injustice and abuse of power and helped me fight back. None were campaign donations. Their voluntary assistance, plus our own savings, went toward paying the lawyers and financially surviving this brutal eight-year onslaught.

A year ago, Richard Sanders wrote: During the recent mediation conference, the AG made clear their priority: the lifetime ban. They dont care about the money, they want to shut you down. When you told the mediator it was blackmail, you were exactly right. This whole thing is about breaking you so you give up and agree to the ban. But you refused. Good for you! After hundreds of hours of examining the facts and researching the AGs case against you, its clear to me you didnt violate any laws. You were never the committees treasurer professional CPA Stan Long was your committees treasurer and he did not believe these transactions needed to be reported. He was right, the AG is wrong. Tim, in all my years on the court, Ive never seen such a miscarriage of justice. Seven years of investigation? Harassment of your wife? Frankly, Im astounded youre still functioning. Anyone else wouldve given up a long time ago. I admire your commitment.

As predicted, a Gregoire-appointed judge in Thurston Countys court rubberstamped the AG, ignoring the law and the Constitution. Go to tinyurl.com/FergusonHypocrisy to learn how the AGs bizarre claims are fundamentally flawed and reek of hypocrisy. (How Much Has Democrat Bob Ferguson personally profited from politics? Over $2.8 million!)

While it gets appealed, despite the risks, I will continue fighting for taxpayers because our efforts are needed now more than ever. Politicians have an insatiable tax appetite and are hell-bent to impose income taxes, carbon taxes, and other taxes this session.

Fergusons eight-year jihad has cost me everything I have. But Im not going to let him slow me down. Because like President Trump said: Theyre not after me, theyre after you, Im just in the way.

Tim Eyman is a longtime political activist, born and raised Yakima, WSU graduate, who now lives in Bellevue tim.eyman@gmail.com 425-590-9363

Link:
Eyman committed to appealing unconstitutional restrictions on the First Amendment - Walla Walla Union-Bulletin

Reprinted fromMarch 4, 2000

Tim Crews, a rough and ready publisher of a small weekly in Northern California, got out of jail this week.

Tim has a natural suspicion of most governmental agencies and bureaucrats, and he keeps the pot stirred in the small communities he serves.

Hes also an ardent supporter of freedom of the press, free flow of information and openness in government, and thats what got him into jail.

Feisty, probing and suspicious he delights in exposing wrong doing in sacred places. In doing so he steps on many toes, some of them belonging to powerful people.

Tim Crews went to jail last Saturday because he challenged the judicial system on the First Amendment rights of the press. His case hinges on the right of reporters to protect their sources so that they might have continued access to information important to their readers.

In this particular case, Tim was protecting informants who told him about the theft of a gun from evidence, by a Highway Patrol officer. It wasnt the prosecution who put the squeeze on Tim, it was the defense. The officers attorney needed Tims informants to prove that the statute of limitations had expired. The judge sided with the defendant, saying that an individuals right outlined in the Sixth Amendment to have compulsory process for obtaining witnesses in his favor superseded the right of a reporter to protect his sources, as might be implied in the First Amendment.

The California Shield Law for journalists doesnt apply, the court said. Tims defense, which has proven valid in other cases, was that the defendant had access to many other witnesses who could have testified to the matter.

The local court decided to pick on him anyway. The appellate courts wouldnt overturn his contempt citation. The state supreme court wouldnt stay his jail sentence.

Tim, a white haired, white bearded bear of a man, wasnt afraid to go to jail. "You guys are next," he cautioned a group of reporters who covered his trip to the pokey.

Tim will probably have plenty to write about the experience. But in taking him away from his newspaper, the Sacramento Valley Mirror, for five days, the courts could have jeopardized its publication.

The Mirror is a 12-page twice-a-week paper published in the obscure town of Artois, home of 250 residents just east of the I-5 between Willows and Orland.

In recent months he has accused the Willows school district of bullying the Valley Mirrors advertisers, reported that the mentally ill faced primitive treatment by being placed in jail, and written that an Orland school trustee was trying to oust the controversial superintendent. Last weeks paper reported that two local judges, including the one that cited him, carried concealed weapons without an appropriate permit.

Tim is not only the publisher and editor, but the lead reporter, the ad salesman and general all-around flunky. He had to leave the work to his companion, Donna Settle, and a handful of columnists, correspondents and volunteers.

Attorney fees and costs of fighting his incarceration have left him strapped. If the powers-that-be had wanted to put him out of business for the unkind things he said about them, they couldnt have found a better way.

His jailing upset the journalism community statewide. First Amendment banner bearers have rushed to Tims aid with money and support. Newspaper people feel the courts have thrown down the gauntlet on a right generally upheld by the judiciary--to be free from coercion and intimidation in reporting and commenting on the news.

One could easily agree with the courts that in criminal cases, the right of an individual to a fair trial, proclaimed by the Sixth Amendment, should have a higher priority. But there is a corollary established by the federal courts: that defendants (or prosecutors) must show serious need for the information and that other sources or witnesses cant be found. Tim argued that there were numerous witnesses who could have shed light on when the theft took place.

Local law enforcement officers claimed they knew nothing about the theft until the gun turned up last spring in the possession of a high school student, who told officers he got it from his girlfriends father, the defendant, the former highway patrolman.

Any remaining recourse apparently lies with the federal court of appeals, which has agreed to hear it in the spring but refused to stay the sentence.

Read the original:
A clash between the 1st and 6th | Rolltop Roundup | championnewspapers.com - Chino Champion

It is remarkable we still have to discuss this question, but we do. Can a person believe the faith of their choice or can they only believe the faith of the "in" group?

One of my favorite paintings is in the Capitol Rotunda, the Embarkation of the Pilgrims by Robert Weir. It depicts a group of Pilgrims on the deck of the Speedwell July 22, 1620, before its departure from Delfs Haven, Holland as it prepares to sail to England to join the Mayflower.

The painting shows how America began: a small group of people, gathered around an open Bible, praying. Five months later, the Pilgrims settled Plymouth Colony in present-day Massachusetts with the hope that they could live their faith free from government imposition.

As many people know, Massachusetts Colony allowed people to live the accepted faith, but not any faith.

WEST VIRGINIA CITY'S EVANGELICAL CHRISTIANS TORN OVER RELIGION'S ROLE IN POLITICS

Not until 1636, when Roger Williams was kicked out of the colony and set up life in Providence, Rhode Island, did America have a place where people could live any faithso began the American experiment of religious liberty.

Oddly enough, what we call our "First Freedoms," were not included in the original Constitution and they were not even first in the Bill of Rights.

Originally, the Bill of Rights was actually 12 Amendments, with the first amendment concerning apportionment in the U.S. House and the second about congressional pay.Thankfully, after final ratification, we made our first priority, first.

The First Amendment reads: "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."

In the words of founder James Madison, religious opinions are a "property of particular value." Our nation respects the right of everyone to have a faith, live that faith, change their faith, or have no faith at all.

JUDGE ANDREW P. NAPOLITANO: THE CONSTITUTION IS NOT FOR SALE

As a Christian, my faith isnt just a hobby I practice on weekends. My faith impacts my daily life whether Im in Washington, D.C., or my back yard.

Elected officials have the same right as every other American: to have a faith and live their faith. I cannot and should not impose my faith on others, but neither can others impose their faith or lack of faith on me.

Houses of worship, parochial schools, faith-based nonprofits, and others serve our communities and the hungry, hurting, and homeless. However, they are continually scrutinized under the misguided notion that faith-based entities in our nation should not be able to compete for public funding or federal or state programs under the guise that doing so would violate the Establishment Clause. But, the Supreme Court has rightfully held that Americans should be allowed to participate in their government and not be required to surrender their faith.

In 2012, a preschool operated by Trinity Lutheran Church in Missouri applied for a state grant to resurface its playground with recycled scrap tire to replace its pea-gravel playground. Though Trinity Lutheran ranked in the top-5 applications, the Missouri Department of Natural Resources denied Trinity Lutherans grant solely because the preschool was operated by a church. In other words, they could get the tire scraps for their playground, if they surrendered their faith.

The Church brought its case all the way to the US Supreme Court, and the Court ruled 7-2 that the government cannot exclude churches and other faith-based organizations from a generally available benefit simply because of their religious identity.

HUME: LIBERALS CALLING FOR FREE SPEECH CRACKDOWN 'DON'T UNDERSTAND THE CONCEPT'

In 2020, a mom in Montana tried to utilize a state scholarship program to send her daughters to a Christian school, but the state specifically stipulated that the program could not be used at religious schools.

In a 5-4 decision, the Supreme Court held that Montana violated the free exercise clause of the Constitution when it disallowed the use of the scholarship at faith-based schools. The state of Montana did not have to create a scholarship program, but if it did. It could not discriminate against people of faith.

Oklahoma, like Montana, is one of more than 30 states that have language in statute, or in their state Constitution, that specifically targets people of faith for discrimination. These "Blaine Amendments" were highly prejudicial 19th-century attempts to prevent Catholic entities from receiving any government benefits.

The original Blaine Amendment, which thankfully failed in the U.S. Senate, read: "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations."

CLICK HERE TO GET THE OPINION NEWSLETTER

Blaine Amendments were not about protecting the First Amendment. They were, and still are, antiquated, anti-faith provisions that masquerade as preventing the establishment of a religion. They actually tell people that their school, charity, or nonprofit is less valuable because of their faith and that they are not welcome to interact with their government, unless they first give up their faith.

That is not who we are as a nation. We should encourage any and all faith groups to participate in and compete for publicly available programs just like any other business or group. That is the opposite of establishing a religion.

I was successful in securing an amendment to the Senate Budget Resolution to ensure churches and houses of worship are treated the same as secular organizations regarding COVID health restrictions.

The same gathering and health rules should apply regardless of the organizations message or faith.I also ensured faith-based organizations were eligible for the Paycheck Protection Program and for FEMA disaster aid the same as any other small business.

We should be neutral to faith.

In America, we have the free exercise of religion. You can choose any faith or no faith and still be a great American.

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You dont have to choose between your faith and serving in public office or partnering with your government to serve your community.

You can literally have your faith and live it too.

See more here:
Sen. James Lankford: Our American experiment of religious liberty you can have your faith and live it, too - Fox News