The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday I flagged a Corona-related decision by Judge Easterbrook. He upheld a lockdown on a house of worship, even as governments allow protestors to mass in the thousands. Today, the Fifth Circuit decided another Corona-related decision from Louisiana. This case became moot, because the relevant order expired. Judge Jim Ho wrote a four page concurrence, highlighting this inconsistency. It begins:
At the outset of the pandemic, public officials declared that the only way to prevent the spread of the virus was for everyone to stay home and away from each other. They ordered citizens to cease all public activities to the maximum possible extent—even the right to assemble to worship or to protest.
But circumstances have changed. In recent weeks, officials have not only tolerated protests—they have encouraged them as necessary and important expressions of outrage over abuses of government power.
For people of faith demoralized by coercive shutdown policies, that raises a question: If officials are now exempting protesters, how can they justify continuing to restrict worshippers? The answer is that they can't. Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are "open" and which remain "closed."
Judge Ho questions how protests are exempt, but not worship services:
If protests are exempt from social distancing requirements, then worship must be too. As the United States recently observed, "California's political leaders have expressed support for such peaceful protests and, from all appearances, have not required them to adhere to the now operative 100-person limit. . . . [I]t could raise First Amendment concerns if California were to hold other protests . . . to a different standard." Brief for the United States as Amicus Curiae at 24, Givens v. Newsom, No. 20-15949 (9th Cir. June 10, 2020). The same principle should apply to people of faith. See, e.g., Lukumi, 508 U.S. at 537 ("[Where] individualized exemptions from a general requirement are available, the government may not refuse to extend that system to cases of religious hardship without compelling reason.") (quotations omitted).
Finally, Judge Ho also heavily criticizes Employment Division v. Smith:
Smith has been derided by "[c]ivil rights leaders and scholars . . . as 'the Dred Scott of First Amendment law,'" criticized by "[a]t least ten members of the Supreme Court," and "widely panned as contrary to the Free Exercise Clause and our Founders' belief in religion as a cornerstone of civil society." Horvath, 946 F.3d at 794–95 (Ho, J., concurring in the judgment in part and dissenting in part) (quoting other sources). Smith is troubling because it is of "little solace to the person of faith that a non-believer might be equally inconvenienced." Id. at 796. "For it is the person of faith whose faith is uniquely burdened—the non-believer, by definition, suffers no such crisis of conscience. This recalls Anatole France's mordant remark about 'the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under the bridges, from begging in the streets, and from stealing bread.'" Id. (quoting ANATOLE FRANCE, THE RED LILY 87 (1910)).
Soon, I expect Judge Easterbrook's decision to be appealed to the Supreme Court. And Chief Justice will find a way to justify the differential treatment.