Category: News Feeds

Some things just need to be said: the year 2020 has been (and continues to be) one of the most challenging years of our lifetime — it is a gift that just keeps on giving. Forgive the sardonic take, but it has been one heckuva year to say the least –- and as of the time of this writing, the presidential election continues to drag on due to serious allegations of voter fraud by the Trump campaign amid claims of fraud and growing statistical evidence of anomalies in the voting tallies in many battleground states. Whether or not you agree with the election challenges presented to date, it is hard to miss the significant claims of potential fraud and vote manipulation being made that involve electronic voting (“e-voting”) systems used in the U.S. This situation is leaving many voters with questions over the security and accuracy of these systems, while receiving few answers in the process.

Face it: Most of us casting our votes using e-voting systems do not know where these votes go once we press the “cast your vote” button. To help provide some context, it is worth generally understanding the election process (care of Britannica):

To understand electronic voting, it is convenient to consider four basic steps in an election process: ballot composition, in which voters make choices; ballot casting, in which voters submit their ballots; ballot recording, in which a system records the submitted ballots; and tabulation, in which votes are counted. Ballot casting, recording, and tabulation are routinely done with computers even in voting systems that are not, strictly speaking, electronic. Electronic voting in the strict sense is a system where the first step, ballot composition (or choosing), is done with the aid of a computer.

Most e-voting systems in the U.S. use some type of specially designed machine to either directly record the vote (a direct recording electronic, or DRE machine) or optically scan a paper ballot, or both. Since DRE machines handle composition, casting, and recording of votes and place that data in memory on the device, the recording of this vote (and how it is handled and later tabulated) is invisible to the voter. As a result, there is lingering controversy over the security and integrity of recorded votes using e-voting systems.

This leads to some legitimate questions about e-voting systems that the vendors should address with more than platitudes to assuage fears of both voters, elections officials and candidates. Here are three of them:

Is your e-voting system subjected to regular third-party penetration testing and vulnerability analysis? In my research I have seen a lot of marketing material claiming their systems “meet or exceed” relevant “industry standards,” but that doesn’t cut it. Being tested and certified by the U.S. Election Assistance Commission (EAC) in accordance with federal Voluntary Voting Systems Guidance (VVSG) is great … but not enough. Vendors of e-voting systems have trusted, highly qualified “white-hat” hackers … I mean, contractors … regularly “hammer” their systems to uncover potentially hidden vulnerabilities so that the systems can be hardened against attack and intrusion both locally and in transmission of data. If a vendor already does so, then they have an immediate market advantage. After hearing about alleged Russian interference in the 2016 election for the entirety of President Trump’s first term, and now allegations of Dominion Voting Systems being compromised by Chinese and Iranian rogue actors in the latest election challenge in Michigan, this is not only recommended, but simple common sense.

Does your e-voting system use an immutable audit trail? From what I have been able to gather, most jurisdictions either use a DRE machine or optical scanner technology to tabulate votes into a file for incorporation into a centralized database. The problem is that this data can ostensibly be manipulated or changed (either through malicious software intrusion or otherwise). This should not be possible under any circumstances. Using current technology (such as blockchain), voting records can be recorded in an immutable ledger that can be used for not only securing the record but audit purposes as well. They are not only cryptographically protected, but they are permanent entries in the blockchain and cannot be changed by design. This immutability fosters security and authentic auditability. For example, if any votes are “dumped” into such a system in the wee hours of election night, it becomes an easier task to cross-reference the votes tallied to actual vote records to determine irregularities and whether any of the electronic votes are not authentic. It’s definitely not perfect, but it is better.

Do you escrow your e-voting system source code? I realize this is a delicate topic — as an IP lawyer I have negotiated many source code escrow agreements and provisions and understand the issues on both sides of the fence. The problem here is that the very nature of e-voting systems demands accountability and a certain level of transparency. As I wrote in my prior article, states should negotiate source code escrow provisions that include allegations of improper operation of the software as a triggering event so as to authorize the release of source code to a mutually agreed forensic programmer to perform necessary auditing under strict confidentiality restrictions. To the extent potential software shenanigans have been alleged and enough evidence presented to draw the software into question, such a forensic review can address the allegations while protecting the source code from improper disclosure. Securing the value of the vendors’ IP is critical, but so are our votes.

Don’t misunderstand me: e-voting systems cannot prevent all fraud — these systems merely collect, record, and tabulate input data, so bad actors in the chain of custody will always be a problem. Although no system will ever be perfectly secure, there is no reason e-voting systems can’t be more secure by design. We need to have confidence in our electoral processes, and allegations of vote fraud and vote manipulation by the very systems collecting, recording, and tabulating our votes cannot be casually dismissed — they must be taken seriously. For the sake of our electoral system, I remain optimistic that answers to these and other legitimate questions will be forthcoming. Then again, it’s still 2020….

---

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

A little bit of yeast leavens the whole loaf. Which essentially means that it only takes a small catalyst to make a big difference. In today’s context, one person can raise the tension in a room just like a few grams of yeast can raise a loaf of dough. It doesn’t take much.

Combine that idea with something Albert Einstein said: “The world is in greater peril from those who tolerate or encourage evil than from those who actually commit it.” Thus, the greatest obstacle of justice is possibly the innocent, but inactive, bystander. What you allow will continue.

Catalytic passivity: the substantial impact or major consequences that follow directly from the inaction of an individual or group.

My first encounter with unprofessional behavior went something like this. I was following up with a senior lawyer after she sent several puzzling, and inappropriate, emails. However, my attempt to query her was cut short by her shouting that she had bigger fish to fry. Being a younger, more daring Olga who perhaps had slightly less wisdom than the Olga of today, I responded with unchecked words and unhindered wit. I apologized to her … for mistaking her for a lawyer when it turned out she was a cook.

She was, of course, not a cook and so she didn’t take that particularly well. No one stood up for me, but I moved on. Over the years I met many associates who had very similar stories about that same person. Apparently, I was not her first. People who knew her before me and long after I shared near-identical tales of her explosive episodes. It really bothered me that such a hostile environment continued to exist for so long — that no change had come about even though so many people were negatively impacted by it. I wondered why nothing changed. After some reflection, I realized that I may have been a part of that problem.

How?

Catalytic passivity.

I called her out on her bullying by pointing out how childish she was being. But I don’t think we should be drawing the line there. For a once-off, I think it is quite apt simply to draw their attention to their behavior and why it was wrong. But for a repeat offender, further action is required.

The second step would be to approach the individual with a colleague. Ensure you’re approaching Dr. Jekyll, not Mr. Hyde, and that you’re not doing so during or immediately after an incident. The only exception would be if there is absolutely no other choice because every conversation escalates into a shouting match and you knew this would be no different. Of course, a toxic environment can be made equally as noxious through whispers or shouts. It is unprofessional, unnecessary, or demeaning behavior — regardless of what form it takes.

The final step would be to approach superiors. Be it their colleague, superior, or HR. A superiority complex may prevent them from listening to you but hearing the words of someone above them may be shocking enough to trigger a change in behavior.

Let’s stop allowing what we do not want to continue because when we do, we endorse it. Maya Angelou so poignantly said that “we are only as blind as we want to be.” At the end of the day, turning a blind eye leaves Lady Justice impaired.

---

Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

While you were enjoying Thanksgiving dinner, Harvard’s Alan Dershowitz was toying with nominating Donald Trump for the Nobel Peace Prize. It’s a remarkably poor idea, but you’ve got to hand it to Professor Dershowitz for consistently coming up with provocative topics for his call-in show.

The Abraham Accords normalized relations between Israel, the UAE, and Bahrain. Unlike the Camp David Accords between Israel and Egypt or the Israel-Jordan Treaty — both of which involved settling relations between countries that had actively gone to war with each other — the Abraham Accords settled Israel’s relations with a pair of countries that had mostly sat on the sidelines of past conflicts. Hitting singles is important, but they give Peace Prizes to people who bash dingers.

And that’s a more charitable review than Israeli newspaper Haaretz gave the agreement that is — incredibly — touted by the Trump administration as a signature accomplishment.

The end result was a bunch of statements in support of global peace of the type normally made by winners of the Miss Universe pageant – which was once presided over by the same man who presided over these peace initiatives, U.S. President Donald Trump.

Bizarrely, Trump has already been nominated for the Peace Prize based on the Abraham Accords. Far right-wing Norwegian politician Christian Tybring-Gjedde has nominated Trump twice, most recently on the back of this agreement, and the committee found the nomination as specious as one might suspect.

But just because a proposition is demonstrably ill-considered doesn’t mean it’s not a great topic for a show! On that note, what’s on tap for the next Dershow:

See what I mean?

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

I’ve got the best Supreme Court advocates, lawyers, that want to argue the case, if it gets there. They said, ‘It’s very hard to get a case up there.’ Can you imagine, Donald Trump, president of the United States, files a case, and I probably can’t get a case.

We should be heard by the Supreme Court. Something has to be able to get up there, otherwise, what is the Supreme Court?

— President Donald Trump, during an interview with host Maria Bartiromo on Fox News’ “Sunday Morning Futures,” after he was asked whether he expects his election-related litigation to make it to the Supreme Court. “We’re not allowed to put in our proof. They say you don’t have standing,” said Trump, who does not seem to be coming to grips with the fact that he lost the election. “You mean as president of the United States, I don’t have standing? What kind of a court system is this?”

---

Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

According to a report from Roll on Friday, an associate in the London office of Proskauer Rose has left the firm after experiencing harassment at the hands of a partner. Indeed, they report the “associate was ‘harassed’ by the partner until she quit.” The harassed associate has reportedly found a job at another law firm.

Though the exact nature of the allegations remains unknown, we do know that last week the managing partner of the London office, Mary Kuusisto, was joined by the firm’s compliance officer to have what’s being described as “an unusual ‘townhall’ meeting.” At the meeting employees were told about the harassment allegations, though the identity of the partner involved was not revealed. According to sources, the message from the town hall was to “remind[] everyone to act appropriately” and “to remember their obligations.” Which is British for, “stop with the harassment, y’all.”

In a statement given to Roll on Friday, the firm provided platitudes and assurances about their protocols:

“Proskauer does not tolerate disrespectful or inappropriate behaviour and holds everyone in our Firm to the highest standards of conduct”, the firm said in a statement.

“We encourage anyone to report behaviour that they believe violates Proskauer’s policies and provide confidential avenues to do so. We follow strict protocols to investigate complaints. Proskauer remains committed to ensuring everyone in our Firm is treated with respect and dignity.”

Of course, these words may not do a lot of good to the associate who has allegedly already changed her career path because of a partner’s actions.

---

Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

Laches, FTW!

This weekend, the Pennsylvania Supreme Court ruled that the state’s Republican politicians couldn’t wait until two elections had been conducted using mail-in ballots to decide that the process violated the state’s constitution, because you can’t sleep on your rights and then go running to the court to vindicate them when you don’t like the results.

Before this year, the state only allowed voters to cast absentee ballots in very limited circumstances. But in October of 2019, Republicans led the effort to expand mail-in ballot access to all voters, passing Act 77 by a vote of 138-61 in the Pennsylvania House and 35-14 in the Senate.

At the time, Democrats predicted long lines at the polls after Governor Tom Wolf gave up straight-ticket voting to get the bill through. Who could guess that the president would wage a protracted campaign against absentee ballots, while Democrats aimed to get all their votes in before November 3.

In any event, mail-in ballots from Democrats ensured Joe Biden’s victory, and Pennsylvania Republicans came to the belated realization that voting by mail is unconstitutional actually, despite it having been successfully employed in the June primary and the November general elections.

“Act 77 is another illegal attempt to override the limitations on absentee voting prescribed in the Pennsylvania Constitution, without first following the necessary procedure to amend the constitution to allow for expansion,” wrote the plaintiffs in a complaint seeking to toss out the 2.5 million mail-in ballots, handing the state’s twenty electoral votes to Donald Trump.

In their telling, there was nothing for it but to certify the election based solely on the in-person vote, or for the court to declare the election a nullity, turning the state’s electoral votes over to the legislators to do with what they wished, the will of the voters be damned.

On November 24, the state certified its presidential election results. But the next day Judge Patricia McCullough of the Commonwealth Court issued a preliminary injunction ordering officials not to certify those results any further and barring them certifying the results of down ballot races pending the results of an evidentiary hearing.

Trump’s victory was short-lived, however, because Saturday, the state’s highest court delivered a stinging slapdown accusing the plaintiffs of sleeping on their rights.

“Petitioners’ challenge violates the doctrine of laches given their complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment,” the court noted in a per curiam opinion.

You may have forgotten about the doctrine of laches during that wildass, post-bar exam bender. But the judges on Pennsylvania’s Supreme Court remember it well.

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim.

And so another Trump election lawsuit meets its ignominious end, with Marc Elias moving another case back into the win column.

So much for the Keystone coup.

Order [Kelly, M, Hon., et al. v. Cmwlth, et al., Aplts – No. 68 MAP 2020]

---

Elizabeth Dye lives in Baltimore where she writes about law and politics.

Graduation ceremonies are a key rite of passage. Law schools invite you in as a student and, after a ritualistic walk in flowing robes across a stage in front of your friends and family, they send you off as the potential donors you’ve become. After that there’s cake.

Like a lot of things, COVID-19 disrupted graduation plans. Most schools recognized the risk of bringing grandma to a superspreader event and either canceled or postponed the festivities until the pandemic subsided. But with the end in sight — but by no means here — and cases surging around the country, law schools are deciding to just go ahead and haul everyone in.

For example, the University of Georgia, who put off the graduation until December back when December seemed as though this would all be over. It’s not over, but Georgia will not be deterred:

Why? No, seriously, why does this need to happen? Those SNHU grads in the commercials get their degrees in the f**king mail and they seem pretty stoked about it. It’s almost as if the sense of accomplishment can be genuine even without a stupid robe.

Somehow the decision to push ahead with this nonsense makes total sense from an institution that engaged in world-class buck passing through the whole Spring semester. Of course this is the school that can’t make up its mind to just cancel graduation.

The school is permitting graduates up to 8 guests and while masks and “seating pods” are admirable precautions, it’s kind of like putting Evel Knievel in a helmet — sure it’s great but you could also just NOT try to jump the canyon. And it’s not just seating — bringing a couple hundred graduates and faculty together with 8 guests each creates needless crowding getting in and out of the event or milling around chatting while it inevitably runs late. These are all steps that, frankly, could have been taken back in March and could have probably allowed us to carry on otherwise normally. But the cat is out of that bag and the viral load is coming from every direction now. These precautions aren’t nearly as sure-fire as they might have been before.

Also, you’re going to hold an indoor event after that disaster of a Thanksgiving we just had in this country? Is this an elaborate issue-spotter?

Not to single out Georgia here. Doubtless there are other schools planning to go ahead with delayed in-person graduations. The message to all of these institutions is: you don’t need to do this. Some people will grumble. More will be fine about it. The country is within sight of the home stretch with this thing. A graduation ceremony is not more important than maintaining focus on that right now.

---

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

CMS recently finalized changes to Stark Law regulations that will go into effect Jan. 19, and healthcare law experts generally believe that these changes will make it easier for hospitals and physician groups to comply with the law, and provide them with greater flexibility as they move toward value-based care.

Stark Law, also known as the Physician Self-Referral Law, was initially enacted in 1989. It prohibits physicians from referring patients to an entity for certain healthcare services if the physician has a financial relationship with the entity. But as the healthcare industry evolved and started moving toward a value-based care model, many in the industry worried that the move would be hindered by Stark Law regulations.

“The government has recognized the need to update the Stark regulations that were originally developed at a time when the unnecessary volume of services was of primary importance,” Philip Sprinkle, a healthcare partner at Akerman LLP, said in an email. “The concepts of value-added services, cost savings, systemic efficiencies and overall quality outcomes were just in their naissance.”

According to CMS, the changes finalized Nov. 20 aim to alleviate the administrative burden of complying with the law. The reforms will “modernize the regulations that interpret the Stark Law while continuing to protect the Medicare program and patients from bad actors,” a press release states.

Tim Fry, a healthcare associate at McGuireWoods LLP, said in a phone call that the changes update Stark Law regulations in three primary ways:

1. CMS has adopted new exceptions for value-based enterprises and goals. If a healthcare provider has a value-based or care coordination goal and there are certain hallmarks in place, such as a governing board or contracts, they can “share revenue in novel ways, in ways that are not based off of a fair market value fee-for-service model,” Fry said. The exceptions will allow physicians and other healthcare providers “to design and enter into value-based arrangements without fear that legitimate activities to coordinate and improve the quality of care for patients and lower costs would violate the Stark Law,” a CMS factsheet states.

2. The changes include new exceptions to protect “non-abusive, beneficial arrangements” between physicians and other healthcare providers. These include exceptions for sharing technology providing cybersecurity, Fry said. For example, a hospital would be permitted to help provide cybersecurity provisions to physician groups they share EMRs with that may not have enough resources to protect against cybercrime on their own.

3. CMS has also provided helpful clarifications and guidance on various parts of the law, many of which have led providers in the past to think they violated the statute, Fry said. This includes guidance on how to determine if the compensation being given to physicians is at fair market value, a CMS factsheet states.

“We’re still digesting the 600-plus pages that [CMS] put out,” Fry said. “But some of our initial feelings and views are that the final rule is going to be helpful in reducing some of those questions [we get from clients], providing more clarity and hopefully allowing the industry to avoid things that CMS thinks is improper.”

Kathleen McDermott, a partner at law firm Morgan Lewis and former assistant U.S. attorney, agrees with Fry, and said via email that she believes the Stark Law changes provide “greater flexibility” for physician arrangements and compensation. The changes also encourage collaboration in patient care activities, she said.

Though Sprinkle also said that the new regulations will help ease anxiety around complying with Stark Law in many cases, he noted that the changes could add pressure on physicians still involved in the traditional fee-for-service operations of Medicare.

“[The changes will] impose additional pressure on these traditionalists to become part of a managed care network undermining, in the opinion of at least some of these physicians, their independence,” he said. “In addition, it is not clear that previously approved programs that did not require the physician partners to assume risk will be included in these exceptions. To that extent, those physicians may feel that they have been unfairly treated.”

But all three lawyers expect the changes to be implemented next year. None of them think the changes will facing hurdles related to the presidential transition of power, with McDermott noting that the changes to the law have bipartisan support.

Photo credit: smolaw11, Getty Images

Last week, when Michigan was about to consider certifying its election results, President Donald Trump invited two top Michigan Republican legislators to the White House.

As far as I know, Trump had never before met these guys. The Michigan State Board of Canvassers was due to certify the results of the presidential election on Monday. On the Saturday before that Monday vote, Trump chatted with these two influential gents in the White House.

Kayleigh McEnany, paid public money to serve in a public position to tell Americans what’s happening in the White House, said this about the meeting:

This is not an advocacy meeting. There will be no one from the campaign there. He routinely meets with lawmakers from all across the country.

Well, Donald Trump is “from the campaign.”  And he’s attending the meeting.  And this meeting strikes me as anything but routine — in the sense that nothing like this had ever before happened in the history of the world. But maybe I’m too suspicious.

Anyway, Trump met with the two Michigan Republican legislators. The Michigan State Board of Canvassers ultimately voted to certify the election results, with one Republican voting in favor of certification and the other abstaining.

My question is this: Depending on what Trump said during that meeting, could Trump be prosecuted for some type of electoral coercion?

I naturally checked the statute books, and I found 18 U.S.C. Section 600:

Whoever, directly or indirectly, promises any employment, position, compensation, contract, appointment, or other benefit, provided for or made possible in whole or in part by any Act of Congress, or any special consideration in obtaining any such benefit, to any person as consideration, favor, or reward for any political activity or for the support of or opposition to any candidate or any political party in connection with any general or special election to any political office, or in connection with any primary election or political convention or caucus held to select candidates for any political office, shall be fined under this title or imprisoned not more than one year, or both.

I read this section.

I started at the beginning. I was honestly curious about the law. I slowly made my way through the sentence. I got to the period at the end. And I hadn’t been edified.

Just as I’m not sure that I believe in paying money to public spokepeople who seemingly lie to us, I’m not sure that we should pay legislators (or their staffs) who write this crap. Whatever this statute means, surely there’s a way to express it in words that a human being of average intelligence could understand.

On reflection, I also thought that this crime would be terribly difficult to prove. Unless one of the people at the meeting was wearing a wire, you’d surely be in a “he said, she said” situation. One person who attended the meeting would say that he had been “promised … compensation;” the other person attending the meeting would deny this; and the jury would probably acquit for lack of proof beyond a reasonable doubt.

My last thought was that this law surely ensnares people that we don’t think did anything criminal. Suppose, for example, that your name was Dwight Eisenhower. In the days before primaries chose the party’s nominee, you needed the California delegation to support you to become the Republican nominee for president. So you promised, directly or indirectly, the junior senator from California — Richard Nixon — the vice presidency if he delivered the California delegation:

After the speech, former New York governor Tom Dewey invited him to his hotel room for a drink. Eisenhower backers Lucius Clay and Herbert Brownell were there. When Dewey broached the subject of the vice presidential nomination, Nixon said he would be delighted to accept it. It wouldn’t hurt his chances, he was told, if he helped swing the California delegation to Eisenhower.

I wasn’t at that meeting, of course. It was before my time. And no one knows exactly what was said at the meeting, because no one was wearing a wire. But does the statute mean that Eisenhower or his supporters did something criminal at this meeting? If so, is that really what we had in mind?

We should be careful when we draft statutes. If we want them to be enforceable, surely we should make clear what is and is not intended to be criminal in American politics.

---

Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

The effect of a new supermajority conservative Supreme Court took less than a month to demonstrate itself. In Catholic Diocese of Brooklyn v. Cuomo the Supreme Court, with the chief justice dissenting, granted an injunction against a New York State executive order that placed occupancy limits on places of religious worship in areas classified as “red” or “orange” zones. In red zones, no more than 10 people are allowed to assemble because of the level of COVID-19 infection within the area, in less serious orange zones the occupancy limit was 25. To be clear, plenty of other places of assembly that could be comparable to indoor church services, such as movie theaters, concerts, and sporting events were subject to these same occupancy restrictions. Indeed, these similar albeit purely commercial activities were in some cases shut down entirely and therefore treated more strictly than churches. Nevertheless, because dissimilar establishments such as some corner commercial retail stores were not subject to the exact same level of regulation as megachurches, the Supreme Court granted an injunction against the occupancy limits that were being imposed on churches.

Meanwhile, over in the Sixth Circuit Court of Appeals a religious liberty injunctive challenge to the Governor of Kentucky’s executive order prohibiting in-person instruction in all public and private schools failed. Yet, in issuing its opinion the Sixth Circuit distinguished itself from the New York case stating that “[u]nlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were ‘targeted or gerrymandered’ to ensure an impact on religious groups.” But what exactly was the evidence that New York Governor Cuomo had “targeted” or “gerrymandered” religious groups with the executive order?

The evidence the court used to find discrimination in New York was that retail stores were being treated differently than megachurches. In his concurrence, Justice Gorsuch states that at a minimum the First 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.” As justification for this standard Justice Gorsuch cites to Church of the Lukumi Babalu Aye v. City of Hialeah. In Lukumi the question before the court was whether the exempted or unregulated activity posed a similar or greater risk to a recognized interest of the state. The problem, which neither Gorsuch nor any of the majority addresses in Roman Catholic Diocese, is that retail stores are not only dissimilar from megachurches, they are undeniably not as dangerous to public health during the COVID-19 pandemic. In other words, retail stores and megachurches are not comparable at all.

How do I know this?

Well, in California, before this new superconservative majority SCOTUS came to be, a similar claim to the one made in New York was rejected. In California’s brief to the court an epidemiologist with the California Department of Health explained, that unlike concerts, sporting events, movie theaters, or church services, people in corner retail stores, grocery stores, banks, and laundromats do not generally speak (or sing) together, or stay in close proximity for extended periods. Interestingly, and altogether tellingly, despite the inherent difference between a corner retail store and a megachurch, movie theater, or sporting event with a capacity to seat a thousand people, and how that inherent difference relates to the risk posed in our current pandemic, the Supreme Court does not justify its comparison of churches to commercial retail. But the Supreme Court’s silence on this rather obviously ridiculous comparison is not the only flaw here.

Although it involves a discussion of a separate constitutional right to equal protection, the fact that race claims suffer under a much more difficult burden of proof than what was applied in Roman Catholic Diocese should be a national scandal. Think about the amount of direct evidence of racial discrimination by government that is out there that stands to go unrecognized or unpunished by our courts. Then think about what it would mean if all it took to prove a law had a racially discriminatory “effect” was that it appeared “targeted” and “gerrymandered” to ensure an impact on racial groups. The reality is equal protection claims are notoriously difficult to satisfy and the Supreme Court has effectively closed the courthouse door to claims of racial discrimination. Even when there is clear proof that government officials were treating those of a certain race differently, and harmfully, when compared to other races.

When one compares the standard of proof the Supreme Court requires from equal protection claims with the standard of proof the court requires for religious discrimination claims what you are left with is a clear impression of favoritism for religious claims. In the end it really is that simple, the Roman Catholic Diocese case was simply outcome driven by a conservative favoritism of religion. Nothing in the text of the Constitution justifies burdening equal protection racial claims with standards of proof greater than what is needed to satisfy a religious discrimination claim. The reason religious claims are currently favored, and racial claims disfavored, is entirely because conservative politics favors the former and disfavors the latter.

---

Tyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and is forthcoming in the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.