Deriving Moral Principles from Our Ethical Intuitions
Rick Garlikov

People tend to have fairly strong ethical intuitions about whether an act is right or wrong, but find it difficult to know or state specifically what makes it right or wrong without running into counter-examples of acts that meet their stated criteria but which they intuitively feel has the opposite moral value.  For example, many people cite a version of the Golden Rule and say something like "Well, that is how I would want someone to treat me."  But if you ask whether that then means if you wanted someone you don't even know but have just seen across the street to come over and grab and kiss you, you should just go grab and kiss them, the answer ought to be "no".  Not everyone wants the same things.  And even what someone wants may not be right for them to do or have.

It can be extremely difficult to get at the root of our intuitive ideas, let alone put it into words that will stand scrutiny. 
The history of moral philosophy is filled with ethical principles formulated by intelligent, thoughtful people -- principles which are flawed and will not stand up to scrutiny.  Laws have the same problem.  That is in part why insensitive or malevolent people can find loopholes in laws that allow them to follow their letter while clearly transgressing their spirit.  It also allows for honest misunderstanding.  When I was a child, we visited distant older relatives and at dinner at their home on the first night, my great aunt asked me if I would like seconds of one of the dishes and I declined by saying "No, thank you" but adding that it was because I didn't like the way it tasted or that it did not taste good.  My father was embarrassed and incensed and told me privately shortly thereafter that you "never complain about food someone has been kind enough to serve you; you eat it and be grateful for it.  Otherwise you hurt their feelings and that is not nice." A few years later, we were having a family gathering at the small farm one of my aunts and uncles lived on, and I was given a glass of milk that tasted really terrible, but I dutifully drank it without complaint and just figured that was the way farm milk tasted.  A short time later an older cousin held up his glass of milk and announced it tasted terrible.  I knew he was about to be severely reprimanded and punished because he should have known better.  But to my astonishment, my father took the glass from him and smelled it, recoiled, and said the milk had turned and was spoiled and not to drink it.  Uh oh; this is not looking good for me because my dad knows I already drank a glass of it.  I was sitting next to him at the table, but I tried to make myself invisible.  It didn't work.  He turned to me and said "You drank a whole glass of this before and didn't say anything was wrong with it.  What is the matter with you!"  The best I could think of at that age was "But you said never to complain about the taste of food someone gives you" which now clearly seemed to have at least one exception, but I immediately suspected he would take that as my blaming him for whatever this disastrous thing I had done was, so I just lied that "It tasted okay to me."  I was not old enough to have simply been able to point out I must have an intellectual deficit that was likely genetic from the male side ....

Now, there are many elements involved in what makes an act ethically right or wrong and that need to be considered:
  • its having better or worse consequences than other available options,
  • the  likelihood/probability of the different consequences happening,
  • the fairness and reasonableness of distribution of burdens and benefits,
  • goods and harms of the consequences,
  • rights that might be violated,
  • incurred obligations that need to be met,
  • necessity or value of risk of possible harm versus the potential benefits,
  • fair and reasonable expectations of people to be able to do,
  • deservingness of people affected,
  • negligence,
  • failed attempted harm, etc. 
But people tend to intuitively selectively focus on one or more that seem to be definitive to them about an issue under consideration and ignore the potential significance of the others.  Ask military people about the duty to obey lawful but clearly wrongheaded orders and they will generally say it is obligatory to follow them because one should be obedient to the orders of superior officers who must know what they are doing, and that it is imperative for any operation that everyone does what they are told because everyone's well-being is dependent on that.  And yet 1) we condemned Nazis at the Nuremberg trials whose defense was they were following orders, because we think they should have known better and shown more personal responsibility for their actions, and 2) soldiers often have PTSD based on a deep, hidden understanding that orders they followed were wrong while simultaneously believing they had no choice but to follow them because it was their duty and, yet, that they shouldn't have obeyed them; that they did the right thing but somehow it wasn't right.  It sets up a serious moral, stressful cognitive dissonance they cannot resolve and that haunts and plagues them -- a terrible sense of guilt for having done the right thing, which is contradictory, since guilt implies doing something wrong.

The problem of flawed, narrow selective focus on one or two underlying moral (or similar underlying legal) elements can be demonstrated by examining: 1) the executive order to prevent spread of COVID-19 promulgated by New York's Governor Andrew Cuomo,  2) the concurring opinion rendered by Justice Neil Gorsuch about that order, which is not that different in substantive points (or reasoning) from the majority opinion, but which makes them in more pointed ways, 3) this article in The New York Times about Gorsuch's opinion by Bret Stephens, "Thank You, Justice Gorsuch: Liberals will one day cite and celebrate this defense of religious liberty", and 4) The New York Times "picks" of response comments to Mr. Stephens by readers -- comments that tend to encapsulate public and political opinion about government restrictions in general to try to end the pandemic.  As I will explain below, these four sources collectively and individually exemplify how we do ethical and/or legal, reasoning poorly, often reflecting what opponents view as intentional and malevolent hypocrisy, though it may only be unintentional logical inconsistency. 
[Slight digression here: In some cases it is only apparent inconsistency because those who think it hypocritical or inconsistent either read more into at least one of the statements than was intended or is reasonable to infer and/or they mistakenly believe significant distinctions are only hair splitting, trumped up devices to barely avoid inconsistency in some merely technical, minimal way.  I will leave it to the reader who is interested in pursuing this to notice in the opinions rendered in Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York such a disagreement between Justice Gorsuch and Chief Justice Roberts, over whether Roberts was inconsistent in the importance of Jacobson v. Massachusetts in his South Bay decision compared with his opinion in this case. 

On the other hand, selective focus can also cause unnecessary hypocrisy, as when the Republican Senate during President Obama's second term refused to consider his nominee for the Supreme Court with the publicly stated reason that a president should not be able to make such a Court appointment within a year prior to a presidential election but then, four years later, rushed through President Trump's appointment to the court a month before the 2020 election.  On the face of it, that was hypocritical, but they could have avoided the hypocrisy by just saying they were not going to appoint another justice to the Supreme Court they thought would be too liberal and that they prefer to take their chances that a more conservative president would be elected who would submit a more conservative nominee for the Court.  That reasoning, even if it would have been against the spirit of the Constitutional requirement of advice and consent of the Senate would have been consistent with their confirming the conservative nominee President Trump named, in case he would lose his bid for re-election.  By invoking an unnecessary, supposed principle that was ludicrous, probably unintended by the framers of the Constitution, and likely counterproductive, as it turned out to be, they unnecessarily laid themselves open to obvious hypocrisy.  And the fact the Democrats had given the same hypocritical reason, when the nominee didn't suit them, doesn't justify the Republican's using it.  Both sides were openly hypocritical when the mere selfish, power hungry greed they were ineptly and futilely trying to hide would have sufficed for their purposes and suited them better.]

Now, most people are able to see much more clearly, as Jesus pointed out in Matthew 7:3, the tiny speck in other people's eyes than they see the log in their own, though that does not mean one's criticisms of others cannot be unreasonable or even ridiculous.  But it is generally far easier to criticize correctly the ideas of others than to see the errors in one's own ideas.  And particularly in arguments where there may be many pros and cons, advocates for opposing conclusions, particularly when both conclusions are wrong, pretty much talk "past each other" by repeating their own believed "pros" and the other side's "cons", instead of seeking ways to eliminate or avoid the problems with each position while incorporating, preserving, and building on the good ideas in both.  They attack the most extreme positions or implications of the other person's ideas while ignoring the most extreme ones of their own.  In some cases all it would require is qualifying the proposals of both sides, but people seem reluctant or psychologically unable to do that.  They tend to demand more than is reasonable in order to prevent getting less than they should have or need.  So they tend to pursue policies that precariously ping pong back and forth depending on the vagaries of who has more political power at any given time.  Such policies are generally likely to be poor or problematic because they ignore the other ethical elements involved, especially those which reflect or encompass the other side's legitimate concerns and needs.

I am not advocating compromises, but reasonable accommodations.  Compromises often disappoint both sides and sometimes keep more of the bad of each than doing any good.  The cliche that "I have upset both sides by my proposals shows I must be doing something right" is a really sad goal, rather than finding ways to please both sides by "accommodating" their needs and desires, even if that means showing them that they have different, more basic, underlying goals, then they realize or are asking for.  The most absurd example of compromising would be to for two people to drive to a washed out bridge and after disagreeing whether they should take the road to the right or the road to the left to get to their destination, they decide to compromise and go straight -- over the washed out bridge.  But that is often what compromises, rather than reasonable accommodations, achieve, though the results are not as obvious, immediate, or dramatic.

Putting All This In Light of the Case of the initial Cuomo Executive Order Intended to Prevent the Spread of COVID-19 -- not in order to take a side or resolve this issue, but to point out what is wrong and missing in the considerations,  thus causing the problem to be more difficult or impossible to address adequately or resolve

The significant parts of the Cuomo order in question are (with my own comments about it being given in red):

o   Based upon the severity of the cluster activity, the Department of Health shall adopt in the most severe, or “red zones,” the following mitigation measures:

§  Non-essential gatherings of any size shall be postponed or cancelled; all non-essential businesses, as determined by the Empire State Development Corporation based upon published guidance, shall reduce in-person workforce by 100%; houses of worship shall be subject to a capacity limit of 25% of maximum occupancy or 10 people, whichever is fewer [the giving of an absolute number (in this case 10, and in the next section, 25,) seems to me to be a terribly mistaken, unnecessary flaw in the wording or design of the order -- one that should be corrected, could easily be corrected, and which was corrected in a revision of the order that accompanied other updated information; and I don't understand why it is worded this way or where the limit of 10 comes from or why any number needs to be stated specifically if the point is to have no more than 25% occupancy, leaving room for "social distancing".  Clearly, a huge room (or large religious sanctuary) can allow far more people to be at a (supposed) safe distance from each other than a small room.   The inclusion of an absolute number makes no sense if the point is safety by distance between and among individuals.  The court was right to criticize (the inclusion of) that specific, or any specific, absolute number but that part could have been struck down without necessarily invalidating the rest, if the rest was considered okay.  But the majority of the Court did not consider the rest to be okay.]; any restaurant or tavern shall cease serving patrons food or beverage on-premises and may be open for takeout or delivery only; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.

o   In moderate severity warning areas or “orange zones” the following mitigation measures:

§  Non-essential gatherings shall be limited to 10 people; certain non-essential businesses, for which there is a higher risk associated with the transmission of the COVID-19 virus, including gyms, fitness centers or classes, barbers, hair salons, spas, tattoo or piercing parlors, nail technicians and nail salons, cosmetologists, estheticians, the provision of laser hair removal and electrolysis, and all other personal care services shall reduce in-person workforce by 100% I am not sure I understand this provision, but it seems to close or prohibit these businesses/activities/services; houses of worship shall be subject to a maximum capacity limit of the lesser of 33% of maximum occupancy or 25 people, whichever is fewer [again, the unnecessary use of some, seemingly arbitrary absolute number that could be significantly less than that determined by the percent of capacity needed for the sought social distancing]; any restaurant or tavern shall cease serving patrons food or beverage inside on-premises but may provide outdoor service, and may be open for takeout or delivery, provided however, any one seated group or party shall not exceed 4 people; and the local Department of Health shall direct closure of all schools for in-person instruction, except as otherwise provided in Executive Order.

The wording of the conditions in this order does leave it subject to the criticisms given by the U.S. Supreme Court majority and by the concurring opinion discussed below.  But that wording is a shortcut description for two complex concepts or measures that would escape the Court's objections as those objections are stated, and those shortcuts should have been recognized in a way that then would have allowed and required further consideration by the Court.  That further consideration might or might not have yielded the same result, but the result could then be more reasonable.  While the Court is not required to salvage the arguments meant by the litigants, it is also not right for them to clearly misconstrue them in the way they did.  Attorneys for the governor's office should not have been expected to anticipate the Court's misunderstanding of the criteria stated in the executive order or to have made the order or its rationale more explicit to prevent the Court's cavalierly, carelessly, or at best, uncharitably, doing that. More about this in the relevant place below.

The U.S. Supreme Court ruled the order pertaining to religious service attendance capacity to be unconstitutional because they said it violated the first Amendment free exercise of religion clause.  Justice Gorsuch wrote an independent concurring opinion [following the main opinion in the document in this link].  In it he stated (in black font here, with my comments in red font):
"Government is not free to disregard the First Amendment in times of crisis.  A case could be made the executive order does not disregard the First Amendment's requirement to "make no law respecting an establishment of religion, or prohibiting the free exercise thereof", but takes into account a legitimate exception to it for public safety, not unlike the exceptions to freedom of speech or freedom of the press.  There is no reason to believe freedom of religion and the free exercise thereof is absolute.  Clearly any religion which required human sacrifice would not be protected in that exercise by the Constitution.  Given that group activities present some risk of public endangerment from the spread of COVID, the question is whether there is an unacceptable risk factor threshold that should be an exception to the First Amendment and what it is and why.  At a minimum, that Amendment prohibits government officials from treating religious exercises worse than comparable secular activities, unless they are pursuing a compelling interest and using the least restrictive means available."  The use of the absolute maximum numbers clearly violates the "least restrictive" condition for large sanctuaries, but the "comparable secular activities" condition depends on the criteria for essential versus non-essential activities.  I don't think that condition cannot be met, because, particularly for the six Catholics on the Supreme Court and Catholic litigant, even Jesus argued for socially distanced, remote worship from home, in Matthew 6: "5And when you pray, you shall not be like the hypocrites. For they love to pray standing in the synagogues and on the corners of the streets, that they may be seen by men. Assuredly, I say to you, they have their reward. 6 But you, when you pray, go into your room, and when you have shut your door, pray to your Father who is in the secret place; and your Father who sees in secret will reward you openly."  Clearly Christ claimed that worship in a sanctuary in a group was not essential to the practice of religion.  And it is difficult to see how a rule consistent with the preaching of Christ could be a prohibition of the free exercise of Catholicism or Protestantism.  It apparently does violate an orthodox Jewish rule to attend synagogue for certain worship services, but it does not violate the minyan requirement, and it is not clear that orthodox Judaism requires women to attend synagogue, but that still leaves the issue of a possible public health exception to the first Amendment in order to promote the general welfare and provide for common defense, as the Preamble to the Constitution says are main purposes of the document, along with securing, not simply liberty, but "the blessings of liberty" -- which involve not using one's liberty to endanger or harm others unnecessarily or unreasonably.  I am not trying to prove the Governor's executive order does not violate the First Amendment, but simply showing it may not, and that whether it does or not, it is not necessarily simply "disregarding" the first amendment. 

New York’s Governor has asserted the power to assign different color codes to different parts of the State and govern each by executive decree.  In “red zones,” houses of worship are all but closed—limited to a maximum of 10 people. In the Orthodox Jewish community that limit might operate to exclude all women, considering 10 men are necessary to establish a minyan, or a quorum. In “orange zones,” it’s not much different. Churches and synagogues are limited to a maximum of 25 people. These restrictions apply even to the largest cathedrals and synagogues, which ordinarily hold hundreds. And the restrictions apply no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services."  As already pointed out, the inclusion of absolute numbers such as 10 and 25 are major errors, but the capacity limit to ostensibly allow for sufficient social distancing seems a reasonable general welfare, common defense exception.  The specific wording and separate clauses about "houses of worship" is troubling as singling out religion but not if it was meant to deny exemptions to religion about social distancing requirements.  In other words if the order is meant to include, rather than single out, religion, it is not a violation any more than fire capacity ordinances or building codes would be.

"At the same time, the Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?"  1) While this is an inconsistency for any reasonable distinction between essential and non-essential activities, and the use of righteously indignant sarcasm is deserved, that does not mean the right remedy is to throw out the distinction between essential and non-essential altogether nor to include religious group worship as an essential activity, instead of making the far more reasonable judgment that bicycle shops, liquor stores, and such are not -- and joining Christ in claiming that group religious worship is not essential either.  2) Insofar as a reasonable distinction is made between essential and non-essential and reasonable, non-arbitrary criteria are used to designate which activities are which, that would seem not to violate any principles of fairness or justice, or be a source of unwarranted or illegal discrimination.

"As almost everyone on the Court today recognizes, squaring the Governor’s edicts with our traditional First Amendment rules is no easy task. People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces.  This is only true insofar as there designated secular spaces are arbitrary, and in the cases of bicycle shops and liquor stores, etc. foolish and misguided to be considered essential. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids."  Insofar as that accurately describes the Governor's intention and meaning of the order, it is a justified criticism.  I just don't think it is likely what Governor Cuomo meant or that there can not be a reasonable way to consider religion as non-essential in terms of being necessary for the preservation of life in the way something like grocery stores are, or possibly even hardware stores if capacity is limited, social distancing, and mask are used, and curbside delivery is used.  There are many activities that are emotionally, spiritually, and psychologically important and in some sense even necessary, but not in the same physically sustaining sense that food, medical care, gas, heat, water, plumbing, sanitation, etc. are.  I can see that bicycle shops, if operated with social distancing, masks, etc. could be essential, given that so many people turned to bicycling as a form of exercise (which is important from a health standpoint) that bicycles quickly sold out online and in many stores that sold them.  But I find it difficult to believe liquor stores are a necessity, though that in part may be because I cannot stand the taste of any alcoholic beverage and may wrongly be considering all the references to the need for alcohol during lockdowns (particularly with children) as being merely humorous.  However, all that was to be determined in some reasonable way by the Empire State Development Corporation, with public guidance or input, not by the whims of Governor Cuomo. As to economic or financial necessity of operating businesses, that is a different, but extremely crucial concern and issue there are ways to meet even when businesses are shut down.  For example, see "
Pandemics and Economics" or various articles by economist Paul Krugman and others.  In a free market society such as ours, income is a necessity, and for many people keeping the business they own or work is their primary or only source of income.  So in an economic sense, without some kind of relief most businesses are essential, even if their goods and services are not essential for sustaining the health and lives of their customers.

[Concerning the Court's ruling in an opposite direction in the previous case of
South Bay Pentecostal Church v. Newsom in a 5 - 4 decision] "THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. ... At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. [I don't understand the "according to its own terms" part unless it involves some expiration date on "newness" or some cap on knowledge even though we don't have much understanding yet or particularly effective treatments, though some better than we did in early 2020.  But the fact the pandemic is no longer brand new or there is a bit more known than was before, hardly seems like a reason to discard the reasoning in South Bay Pentecostal about the public health risk and deadly danger.]  Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Colorfully expressed, but not thereby reasonable because there is no arbitrary time limit on emergency circumstances.  If the courts were closed because of an ongoing flood, one wouldn't say simply that as flood waters are still rising and Noah's ark is drifting by "Well, it's been a week now; so we need to hold court; this is not extended holiday or a sabbatical." We are not enjoying either a holiday or a sabbatical.  There are exigent circumstances that have not sufficiently abated even though time has indeed passed.  Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause." but if that means using the same or relevantly similar reasoning as in South Bay, the same result should be reached.

we may not shelter in place when the Constitution is under attack. Things never go well when we do"  The Constitution is not under some arbitrary, sinister, or malicious attack.  People are under attack by a deadly, virulent disease that requires measures not anticipated, some of which may be unconstitutional and ruled so.  But Andrew Cuomo is not trying to destroy the Constitution using the pandemic as an excuse.

It is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques."  While I love the colorful (pun intended) sarcasm, that is a seriously unfair interpretation of the executive order, and the Court should have known better.  The implication of part of the reasoning in the majority opinion and in Justice Gorsuch's opinion is that Cuomo arbitrarily determines the color code of the day.  Gorsuch wrote that advocates defending the executive order argue that even if "those actions do violate the Constitution [...] they say, we should stay our hand all the same. Even if the churches and synagogues before us have been subject to unconstitutional restrictions for months, it is no matter because, just the other day, the Governor changed his color code for Brooklyn and Queens where the plaintiffs are located. Now those regions are “yellow zones” and the challenged restrictions on worship associated with “orange” and “red zones” do not apply. So, the reasoning goes, we should send the plaintiffs home with an invitation to return later if need be. To my mind, this reply only advances the case for intervention. It has taken weeks for the plaintiffs to work their way through the judicial system and bring their case to us. During all this time, they were subject to unconstitutional restrictions. Now, just as this Court was preparing to act on their applications, the Governor loosened his restrictions, all while continuing to assert the power to tighten them again anytime as conditions warrant. So if we dismissed this case, nothing would prevent the Governor from reinstating the challenged restrictions tomorrow .... Both Governor Cuomo and Mayor de Blasio have “indicated it’s only a matter of time before [all] five boroughs” of New York City are flipped from yellow to orange."
This misses the point of the color codes and what they stand for, which presumably is a level of rate of infection measured in some sort of objective way that has nothing to do with the whims or will of Governor Cuomo.  The color codes simply are a shorthand designation for a threat rate, like red flags at the beach or green, yellow, and red zones on a temperature or pressure gauge, or the colors designating altitude levels on a land map, from land that is below sea level to mountain peaks or other high elevations.  Red zones in New York are those that have a high, specific threshold infection rate, orange zones a somewhat lower one, and yellow zones lower yet.  I don't know the details or whether the system is logically or scientifically sound, but it is based on objective data that has nothing to do with whether Andrew Cuomo is feeling prankish or hostile toward religious practitioners on a given day or whether he has a court case coming up against them or not and needs to pull the rug out from under the complaint to try to render it moot until the next opportunity to abuse religions and the Constitution.

Bret Stephens' comments on Gorsuch's opinion:

 "It was one thing for courts to defer to executive authority in the early days of the crisis. But how long can governors override fundamental rights?" The reasonable answer would be as long as exigent circumstances last that justified the override in the first place, just like in the case above of severe, prolonged flooding.

But, as Gorsuch noted, one also has to be modest about judicial modesty: “We may not shelter in place when the Constitution is under attack. Things never go well when we do.”  For many people things don't go so well even with the Constitution in place, particularly when it is interpreted in unnecessary, arbitrary ways that are not helpful.  Can you say Dred Scott? or any other past decisions later reversed by the Court, and as many people want to do with Roe v. Wade, as this court has theoretically been appointed to do.  But, more important in response to the comment about sheltering in place, there is a difference between cowering from an outright attack and rationally doing things differently under adverse conditions not under anyone's control -- particularly when what one is doing differently is in the spirit of Preamble or purpose stated for the Constitution at its beginning.

"That’s a thought that ought to inspire everyone when, and only when correctly applied in the right circumstances, liberals most of all. Imagine slightly different circumstances, in which, say, a conservative governor of a red state had used pandemic concerns last summer to impose draconian limits on public protests, and that he had done so using color-coded maps that focused on denser urban areas and that seemed to apply most restrictively to predominantly Black neighborhoods.  Slightly different circumstances with a radically different purpose unless Andrew Cuomo is some sort of vindictive, closet atheist and religious antagonist and denigrator, or unless it really is only in black urban densely populated areas where people want to protest and their only means of doing so is assembling in close proximity in the streets.  Unfortunately the news media covers marches more than speeches, and determines the importance of the cause by the number of marchers.  That needs to change not only for safety in pandemics, but because the relative number of believers doesn't make a position right or wrong, reasonable or unreasonable, worthy of coverage or unworthy of it. 

"Now imagine this governor had, at the same time, loosened restrictions on large gatherings such as motorcycle rallies, business conventions and football games — on the grounds that these were essential to the economic well-being of the state. Any objections?  Again, if there really was a pandemic, it would be the allowing of these activities, not the prohibiting of the protests, that would be wrong.  The reverse would only be true if there was no danger in congregating.  This in fact is where liberals have been wrong in ignoring any problems with political protest rallies, while castigating Trump political rallies.  It is not simply the believed worthiness of the cause, but the relative value of the risk and the necessity of risking spreading a fatal disease for that cause that determines the reasonableness of the gathering.  Even if the cause is important, it may not be important enough to justify dying for or killing others for.

"The point here isn’t that the interests of public safety and respect for executive authority must always and fully give way to the assertion of constitutional rights. They shouldn’t and don’t.  Right. Nor is the point that the behavior of religious communities during the pandemic has been beyond reproach, or beyond the reach of justifiable legal sanction. It hasn't. Also right.  The point is there are no second-class rights — and the right to the free exercise of religion is every bit as important to the Constitution as the right to assemble peaceably, petition government for redress and speak and publish freely -- every bit as important, yes, but the right to assemble whether for religious or political purposes is not as reasonable in a pandemic as are the rights to petition, speak, and publish freelyAnd I seriously doubt the "right to assemble" was intended mainly to allow or encourage protest marches, as opposed to meetings where people could criticize the government and make peaceful plans for change without fear of government reprisal.  That goes in circumstances both ordinary and extraordinary. As Justice Samuel Alito put it in a speech this month that caused some gnashing of teeth: 'All sorts of things can be called an emergency or disaster of major proportions. Simply slapping on that label cannot provide the ground for abrogating our most fundamental rights.'  But neither is incorrectly or arbitrarily denying an emergency exists grounds for maintaining a right that will cause significant harm by ignoring it for no commensurate value.  Whether something really is an emergency or not and should be treated as such is not determined by one person labeling it one way and another person labeling it the opposite.  Liberals and conservatives do themselves and everyone else a disservice simply by opposing everything the other 'side' proposes or believes.

"There is a perennial danger that rights denied or abridged during one emergency for one class of people will ultimately be denied during another emergency for another class.  No more than the danger that rights accorded in both cases will allow unnecessary significant harms in each, and no more than the danger that a right permitted to one group will still be denied to another group at the same time or in a different similar case.    The reverse is also true. The victory for conservatives in last week’s ruling will be a victory for liberals somewhere down the road. The precedent set by the ruling, and the power of Gorsuch’s concurrence, will make the victory sweeter."  Not if in either or both cases the victory is Pyrrhic and has only lighted fools the way to dusty death.  Repetition of a bad argument doesn't make it better, even if it is for a good cause.

Focusing on rights at the exclusion of significant consequences is an ethical error, as is focusing on consequences at the exclusion of significant rights.  Also, false dichotomies are not helpful.  The choice, for example, is not church services in person or no religious worship, and the choice is not church services or no hardware stores.  

The rest of my remarks are directed toward Bret Stephens readers' comments in the relevant places, most or all of which focus on one ethical or legal element instead of all that need to be considered.  And in some cases, just like in the Supreme Court opinions, a logically mistaken conclusion is drawn even from the elements considered.  As above, for example, even if it is true that liquor stores should not reasonably be considered essential while religious institutions are not, that doesn't logically imply that group religious worship is essential.  It might just imply that liquor stores are not essential.  It is just as consistent to say that neither is essential as to say that both are.

Times Pick

@Longue Carabine and "replies" In France, the Catholic church has agreed to forego singing in masses. It is possible to deal with the pandemic risk without prohibiting services. True, but that doesn't necessarily make it safe enough to justify allowing people to become infected who will give the virus to others. The problem here the probability of harming others and whether it is worth it or not. Even if it is acceptable (which I don't think it is) for people to endanger only themselves by risking exposure to COVID-19, they do not endanger only themselves, but others as well whom they infect. And they make work for others such as medical care providers, co-workers who have to pick up the slack from their absence, spouses or other caregivers, which they do even if they are the only ones who become ill from the church service. In addition they waste valuable medical resources, particularly during a pandemic, which may leave more deserving ill or injured people without sufficient medical care. That is why I don't believe it is acceptable for people to needlessly risk their own lives, unless they also waive all right to rescue and treatment.

As to their endangering others, this is not totally unlike the danger of drunk driving, distracted driving, driving while fatigued, excessive weaving or speeding. Although driving itself is often an essential activity, driving in a way that unnecessarily endangers others is nevertheless wrong. The issue is at what threshold level any otherwise, or normally, legitimate activity becomes unacceptable risk.
When does liberty become license; and when does your liberty become sufficient risk to others to be reasonably considered reckless endangerment or depraved indifference to the lives of others. 

That is not easy to answer, and each of us probably has conflicting intuitions about it, let alone different intuitions from each other. One interesting way to see that is to consider what the safety record and accident rate of driverless cars will have to be for them to become permitted on the roads. As it stands now, any driverless car accident, particularly a fatality, gets the fleet of them pulled off the road, but we don't forbid all driving because humans have accidents, including some 30,000+ fatalities in the U.S. each year. If driverless cars prove to have a safety and/or fatality record 10% better than humans, will they be, should they be, allowed on the road? 25% better? 50% better? 200% better? What will their record have to be for us to be willing to risk allowing them to share the roads with us? Will it depend on just the rate of accidents or also the kind of accidents? If they are safer for other drivers but more deadly for bicyclists or pedestrians, will we prohibit them? What if they are safer than young drivers and aged ones, but less safe than middle-aged drivers?

President Trump and many others seem to think that the nearly 300,000 U.S. COVID deaths in the first full year of the pandemic are an acceptable price to pay for allowing mobility and travel, schools, sports arenas, bars, restaurants, offices, and all other businesses, and the economy in general, to be open. That is implied by their saying in that context that "it is not in the millions, as originally feared and predicted by some." Often they seem to find it particularly acceptable since most of the fatalities, they claim, are older people and/or those with co-morbid conditions, as if somehow those deaths did not matter very much.

JDOUBLEU commented 1 hour ago
SF, CA1h ago
Times Pick

Finally, logic! Since MAR, I’ve seen hundreds of cars crammed into parking lots at Costco and The Home Depot, as governors (not the legislature) were closing parks and beaches, adjacent beach parking, forests and hiking trails, religious institutions, tennis courts... because shopping for items like pillows and towels, new flooring and tile, plants and mulch... are “essential.” As above, obviously some unnecessary activities are mistakenly deemed "essential", but that does not mean every activity that is desired, such as group worship or football games (which in some places are the same thing) ought to be considered or designated "essential". The inconsistency does not favor allowing the wrong prohibited things to open, but the wrong open things to be prohibited. Cuomo’s actions, Newsom’s actions... were never science; just knee-jerk over-reactions and executive overreach in an election year. This is the 400th anniversary of the Mayflower. Why did those families (my family!) flee to the Netherlands, and eventually to this “new” land? (They could be fined for not attending required religious services in England.) They wanted to worship with their community! They were willing to risk their lives to do so! But in a pandemic, risk of one's own life also puts others in danger. Cuomo, Newsom... all need better historical education on where the ideas for our Constitution originated. If their arbitrary rules had been consistent and fair, then fine. But they were not.

Jim commented 1 hour ago
Merion Station1h ago
Times Pick

I am always amazed that so few people understand that the Constitution protects the exercise of rights when they are unpopular. We don’t need the Constitution to protect rights when they are popular. Popularity does not signal unanimity of acceptance. Imagine trying to write and adopt the Bill of Rights today.

Peter commented 1 hour ago
Portsmouth, RI1h ago
Times Pick

As a lawyer, and as a Catholic, Gorsuch's opinion (one of six that decided the case) was terrible. What stood out for me, and admittedly it was the opinion of only one justice, was Gorsuch’s concurrence was snarky and condescending, viz., “So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians.” What is snarky and condescending to Peter is humorously and pointedly sarcastic to me, and I don't see cynical righteous indignation as being condescending.

Well, Neil, it takes me maybe ten minutes, max, to grab a nice Rioja, and there are three other people in the store, virtually none of whom are singing “Oh Breathe on me, Oh Breath of God.” See, there is nothing wrong with sarcasm or snark. But is there always social distancing in your aisle at the wine shop? And is it okay to kill four old people to have your bottle of wine? -- if that is the risk you are running by running in and out? Gorsuch went so far, in fact, that the Chief Justice found occasion to call him out over it: “To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.” But, apart from being more entertaining to read, Gorsuch's stronger way of stating his point makes it easier to see the flaw in his thinking. It makes his thinking more clear. He does see Cuomo's order, and any defense of it, as an unjustified attack on religion, and it is important to show why it is not, as well as why it is not wrong in any other way. Less dramatic language can accidentally hide important ideas and reasoning, and can mask the significance of points that need to be recognized.

From a legal standpoint, the fact that restricting a Mass to fifty people might be easier to bear than a limit of ten does not mean that this is the sort of decision we want a court to micromanage. The Court was saying the government should not be micromanaging it at all -- including the governor. Whether the governor was micromanaging it is open to question though. Using the absolute numbers in the original order, probably yes; but I would argue that using public health guidelines, probably not.

Longue Carabine commented 1 hour ago
Longue Carabine
Spokane1h ago
Times Pick

@Kirstine The point is disparate treatment. A rule that only 10 people can congregate in a building that holds a thousand, because it is in a 'red zone', without regard to the specific situation, where other establishments don't have such restrictions, is directed against religious worship as such. Again, this is the inconsistency argument, that can be fixed by banning more activities rather than opening more. And it does not ban religious worship but group worship that Jesus Himself criticized and said was wrong.

Paul Ruszczyk commented 1 hour ago
Paul Ruszczyk
Cheshire, CT1h ago
Times Pick

The lawsuit has nothing to do with religious liberty. It has to do with the following. No people in church - no money in the collection plate. That is an ad hominem attack on the suit's being in bad faith (pun intended).

JW commented 1 hour ago
Times Pick

So, during WWII, hoping that some such thing is not needed again, and the Government orders all windows in cities by the oceans be blacked out at night to prevent ships being seen by U-boats as silhouettes and some houses of worship defy that order, it's okay for them to blaze their lights into the night because of the 1st Amendment?! Does this ruling now mean that any place of worship can go against any law passed by legislatures city, state or Federal or a decree for public safety because of the 1st Amendment?! In times of food or fuel rationing, usually set by government officials, do houses of worship now get to buy unlimited amounts of whatever, including toilet paper while the rest of the population is stuck?! Could priests and rabbis hold those services in restaurants or movie theaters now, or is it only in officially-sanctioned (by whom I wonder?) houses of worship? Can they cater those services at restaurants and open those services up to anyone and to everyone who wants entry?! This decision is so over the top and could lead to a degree of death right now and utter nonsense down the line that I'm almost surprised Mr. Stephens is in favor of it. Almost. These analogies are more on point, but not sufficiently because violating war blackouts has greater, or at least more demonstrable risk of harm, and the violation is hardly required for religious practice. As to rationing, it would depend on how many people they are housing or supplying with the needed goods (as opposed to simply hoarding), not because they are churches. The point is that religion should not be singled out for special favors, but on the other hand, it should not be denied equal rights. Finding the right wording of laws to do that is difficult, and is the problem here.

Sheila Blanchette commented 9 hours ago
Fan Of Deb, Et Al commented 9 hours ago
Fan Of Deb, Et Al
Florida9h ago
Times Pick

Having to follow the same restrictions as the rest of the public is not restriction of religion. The first amendment doesn’t guarantee special treatment, just equal treatment. Comparing an hour of a group meeting, that likely includes singing, to walking into and out of a liquor store is so disingenuous as to be laughable. If groups can’t gather, then groups can’t gather. The purpose of the gathering should have no part of the decision. This is not correct because the whole point of the essential/non-essential distinction is to allow more risk where there is more need or higher benefit -- that is, where the risk is more worth taking. The problem, as stated already, with the inconsistency arguments is that it doesn't show churches should be opened any more than it shows liquor stores should be shut. Either way makes the policy consistent in some fashion, but not necessarily therefore right either way.

angus commented 9 hours ago
chattanooga9h ago
Times Pick

This was not a stroke for religious liberty; it was power play for the Culture Wars. In Gorsuch’s view—and apparently Stephens’—a complex life-and-death issue is reduced to the “secularists” vs the religious. As above, this is the ad hominem 'bad faith' argument that is probably unfair to Gorsuch and to Stephens. I think you are right that it is a complex life-and-death issue but not necessarily a secularist vs religious one, since as you pointed out, a religious person could very well believe that public health trumps public worship (and since a secularist could still believe that public health can be preserved with religious group in person worship and that people who do believe it important should not be denied it. One doesn't have to exercise a right for oneself to believe it is a right that should be available to all who do want to exercise it. As a person of conscience, I’m willing to inconvenience myself and practice my beliefs at home or on line until I’m no longer a threat to spread the virus to others. Doing unto others as we would have them do unto us used to be a core belief for many religious communities. But that presumes that others want to be treated the way you want to be treated and that if they do, you are not both wrong. In this particular case, all the people who want to be able to congregate in churches or at parties, will go to them and want their friends to come too. The Golden Rule is a reason to do the right thing, but it can't tell you what the right thing is, because what people want for themselves is not always itself the right thing. If some guy wants a girl to come over and force herself on him sexually, that doesn't mean he should do that to her. If you are a judge who would want to be acquitted if you committed a crime, that doesn't make it right to acquit all the defendants that come before you. If you would want someone to let you get in front of them in a long line, that doesn't make it right for you to let people jump the line in front of you, because that is not fair to the people behind you who have been waiting their turn. If you would want visitors in the hospital, that doesn't mean someone you know in the hospital wants you or just any friend or acquaintance to visit him/her. If you want your pizza to have anchovies on it, that doesn't mean you should only order or serve pizzas with anchovies for everyone at the party.

Walker commented 9 hours ago
New York9h ago
Times Pick

Justice Gorsuch, and Bret Stephens, disregard the dangers of spreading coronavirus when large numbers of people gather in tightly packed, enclosed spaces indoors. They are not disregarding that danger, but believe it is avoidable by plenty of social distancing in large sanctuaries and because they think in some sense the risk that remains is worth it for those who really feel the need to worship in a sanctuary in a group. I think they are disregarding or at least not sufficiently regarding the danger these people present to others as carriers before they develop symptoms, but I tend to be risk averse to avoidable gruesome death, and don't have the socializing-in-a-group desire gene. In addition, there is a clear distinction between churches and liquor stores. Hundreds of religious worshippers might gather in churches and synagogues, while the typical liquor store might only serve a few patrons at a time. It is an empirical question about which presents a higher risk, given that liquor stores may be smaller and have as many people in a day spreading COVID breath in the store for some future person to breathe. I am not as willing to consider small stores that much safer than large sanctuaries, if any. And I am certainly not willing to risk my life for either a bottle of wine, or to commune with God which I can do perfectly well anywhere in my home or car, or on my bicycle or, in the summer while pushing my lawn mower across my yard. Further, modern worshipers can access religious services via online streaming. Restrictions on attendance don't interfere with the free exercise of religion, they just change the venue. -- which, of course is fine for those who want to do that. Those are not the people protesting the policy. America may someday thank Justice Gorsuch for his defense of religious liberty, but the families of people who will die as a result of his decision will not -- unless they feel it was God's will and their loved one's also.

Alfred Yul commented 9 hours ago
Alfred Yul
Dubai9h ago
Times Pick

Justice Gorsuch's "solution" is not a rational one. These restrictions are temporary -- designed as part of measures to fight a pandemic. Science should dictate what to do in such a situation; not politicians or courts. Science can give some pretty fair assessment of the risk and consequences if they monitor the people who attend either, but cannot say whether the risk is worth being able to pray or shop for wine. The reference to a bike shop or a liquor store does not impress anyone. They are starkly different things than sitting in a pew perhaps for several hours. Liquor stores and bike shops both carry some risk to the people who go to them. I don't know, however, what the relative risk is for catching COVID in a liquor store or bicycle shop. And I don't know whether anyone has studied it scientifically or not. I also don't know whether anyone has scientifically studied virus transmissions in religious sanctuaries during services or not -- whether packed or socially distanced, but packed events without masks seem to be super spreader events.

David commented 9 hours ago
NJ and Aust9h ago
Times Pick

We have to temper Justice Gorsuch's opinion with the fact that he ruled that a truck driver should protect his employers assets before his own life. All rights come with responsibilities and there are times when the rightsholders need to be reminded of those responsibilities. I do not see any benefit to any human being from this opinion. It benefits those with a strong desire to attend a religious service in person who do not get a bad case of COVID or pass it on to someone they care about. Freedom of religion does not confer a right to destroy humanity. It is a poor god indeed who must rely on attendance in a building for the spiritual nourishment of the adherents. Before Liberty comes Life, Then Happiness or the pursuit thereof. If we are going to resort to basics we have be basic.

Steve Ell commented 9 hours ago
Steve Ell
Burlington, Vermont9h ago
Times Pick

The Free Exercise Clause protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of a "public morals" or a "compelling" governmental interest. I think overwhelmed hospitals, physically and emotionally exhausted, stressed, and terribly saddened health care providers, as of this writing nearly 300,000 deaths gives sufficient evidence of "compelling government interest". Shouldn’t there be a compelling governmental interest in public safety during a pandemic? I would say so. Oh wait, I just did. Nobody is trying to stop the practice of religion but only to place a limitation on where it can be done to stop the spread of the coronavirus. But that does prohibit the "free" exercise of religion. The only question is whether there is legal, constitutional justification to do that in the case of this pandemic. Is it a constitutionally legitimate exception to the right of free exercise of religion and/or the right to assemble?