Judge Jim Ho: "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."

|The Volokh Conspiracy |

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.

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  1. Differential treatment? That’s a problem for religious claimants?

    1. You tell us. I mean, literally, you usually do tell us. What’s wrong this time?

      1. Religious claimants can’t get enough differential treatment — special privilege — and Republicans can’t demolish limits on differential treatment fast enough for the conservative base.

        ‘Heads we win, tails you lose’ — religious claimaints can discriminate against anyone and everyone, but no one can discriminate against religious claimants — seems unlikely to be a successful approach over time, particularly for a group that is becoming smaller and less influential.

    2. Seems that if church folk wanna gather outside and pray while moving … then they have a case.
      Otherwise, Ho is wrong.
      Plain and simple.

  2. Racism is a virus worse than Covid19.

  3. The mask is off. The government never cared about anything but furthering its political agenda. At this point Churches will only have themselves to blame if they continue to meekly follow orders.

    1. If churches aren’t careful, they’re headed toward being expected to pay taxes for activities — the country-rock concerts and other entertainment, the day care, the summer camps, the fish fries, the gaming — unrelated to provision of charity.

    2. Good thing there’s a Real Christian in the White House to protect them…

      1. He may be rough around the edges, but his heart is in the right place.

        1. I wouldn’t go that far. More like it’s not stuck in the wrong place solidly enough that he’s willing to suffer political damage just to hurt his own base.

          Which is an improvement over the recent run of Republican Presidents.

  4. So how about the churches label worship as protest?
    Because they are protesting a first amendment violation.

    1. Hilariously, a friend of mine, upset by a local town canceling it’s 4th of July celebration, contacted them and asked if it would be possible to hold a protest on the 4th, and use fireworks during it.

      They got back to him right away. “Absolutely, here are the relevant permits, would you like help in filling them out?”

      He thinks they’re pissed about being forced by folks higher up to cancel the celebration, and are eager to have somebody use any loophole available to hold one.

    2. “So how about the churches label worship as protest?”

      More likely is that more people who have strongly held beliefs will begin to claim the expanding privileges provided to traditional religious claimants.

      Does anyone expect our law to conclude that bigotry and superstition are essential elements to an effective claim of religion-based privilege?

  5. I think it could be explained with the fact that protest are outside and church services are usually held inside.

    1. In some places, churches were banned from holding outside services, even drive-in services. Furthermore, the George Floyd memorial in Minnesota and funeral in Texas were both indoors and were both packed out.

      I think my church might consider defying government rules but, unfortunately, too many members of the congregation are afraid of the virus itself so we’re stuck with restrictions.

      1. What’s unfortunate about it?

        They sound like sensible people to me.

    2. If the governments had published restrictions on that basis and enforced them neutrally, you’re right – that would have been eminently defensible. It would be defensible even if it turned out to be scientifically wrong.

      Sadly, neutral enforcement has little connection to this situation.

    3. Don’t bother Ho with silly things like *facts*.

  6. For it is the person of faith whose faith is uniquely burdened—the non-believer, by definition, suffers no such crisis of conscience

    It is insulting to argue that only religious people can have a conscience. In reality, Ho and Blackman demand special treatment for religious exercise.

    1. The importance some folks place on superstition — my fairy tale is more important than your reasoned conscience, entitled to special privilege — is remarkable.

      The trends are a cause for hope, however.

  7. “Government does not have carte blanche, even in a pandemic, to pick and choose which First Amendment rights are ‘open’ and which remain ‘closed.'”

    I think the correct view is almost the opposite: Gov’t has an *obligation* to protect the people, thus to determine which 1A rights are to be ‘open’ (or constrained) based in part on considerations of expected harm to the people.

    Aside on the writing: IANAL but if the quotes are representative I’m not thrilled with Ho’s approach to argumentation, which appears to rely heavily on style over substance.

    In the quote above, for example, “carte blanche,” “pick and choose,” and the false dichotomy (of a right necessarily being totally open or totally closed), employ 3 different degrees of subtle misstatement so as to point toward the desired, misguided conclusion.

  8. 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.

    Good lord, the SALT.
    Couldn’t even keep it to the post you created as a dedicated salt mine.

    It makes me think about those who take political setback like this as a chance to scramble for hope, false or no, versus those who wallow in despair for a while.

  9. Ho is right that there’s a legitimate argument for 1A protection for both churches and protest.

    But requiring religious people to obey the same laws atheists have to obey is called equality. I.e., the exact polar opposite of what Taney defended in Dred Scott.

  10. Oh … the stinging cynicism. If only it weren’t warranted!

  11. It’s funny how Employment Division used to be criticized by members on the left and enacted by members on the right … and as the potential litigants changed from Native Americans to Christian’s, everyone changed sides just like that. Shows you the actual commitment to neutrality on behalf of all the judges. None.

    1. Also, professor, you, a supporter of the dream act who sided with Trump on immigration purely as a legal matter, at least based on what you said … are you actually pissed about DACA, or are you pissed about Title IV but don’t want to say so? I think it’s the latter.

    2. I don’t think this was ever the case. Smith was criticized by people on the right from the moment it came out.

  12. I had commented earlier that leniency provided in addressing an impending riot does not mean religious people have to be treated identically.

    Pre-authorizing a protest, however, so that protest is exempt de jure but religion is not, is a radically different situation from dealing with an impending riot.

    In this case, I would agree that Lukumi Bablo Aye applies and triggers strict scrutiny. And under strict scrutiny, judges have to judge on objective criteria offered to support a compelling interest claim like differences in likelihood of infection. Neither they nor the state is allowed to use not value judgments like a belief that protest is more important than religion.

    1. ReaderY….Question for you.

      If strict scrutiny applies (and I agree), what is the remedy for those of us whose free exercise rights have been suppressed?

      1. Courts clearly have authority to enjoin unconstitutional orders. So if a state prohibits religious assemblies but permits assemblies for purposes of protest, then remedy is to enjoin the restriction on religious assemblies, on both Lukumi Bablo Aye and Police v. Newark grounds. (The latter basically says that if a rule is riddled with exceptions, then it isn’t really of universal applicability and religion should get an exception too.)

        I suspect doctrines like qualified immunity would likely prevent damages for past conduct. I suspect an injunction would likely be the only remedy.

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