The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


Another Way to Think About South Bay: Why Allow Protest, But Not Prayer?

Mayors and Governors admit they think prayer simply isn't as important.


Earlier today, I blogged about Corona-cases that were mooted while Supreme Court review was pending. Towards the end of the post, I offered another way to think about South Bay United Pentecostal Church. (I wrote about that case here and here).

First, the Court approached that case with the wrong frame. It is a mistake to simply assess how "comparable" businesses are treated. This method reminds me of a routine feature of employment law. For example, a hispanic female alleges that she was denied a promotion because of her ethnicity. However, the employer responds that a similarly-situated hispanic female was given a promotion; therefore, the argument goes, the plaintiffs was denied the promotion for legitimate reasons. The parties will invariably dispute about whether the individuals are similarly situated: they have different roles, different levels of experience, etc. The Free Exercise Clause should not turn on this sort of ad hoc balancing test. Cases like Masterpiece Cakeshop suggest a far more skeptical standard of review is appropriate. Comparing churches to nail salons is a red herring.

Second, I drew a comparison between how governors have treated religious gatherings and how they have treated recent demonstrations. I wrote:

Governors labelled a constitutionally enumerated right, which was subject to the whims of an eleventh-hour change, as non-essential. They did not think prayer was life-sustaining or soul-sustaining. Do it on Zoom! But we know they labelled demonstrations as essential. That cannot be done on Zoom! They also labelled mundane commercial activities, which were open from day-one, as essential, even where the risk of spread was high.

New York Mayor Bill De Blasio articulated this perspective with candor. Reuvain Borchardt from the Jewish newspaper Hamodia asked De Blasio about this disparate treatment:

"The retail store owners have been closed for two months… People from attending houses of worship, our regular part of life, have been banned from doing so with more than 10 people. Now you've expressed solidarity with this particular protest cause, is that why it's been given dispensation to disregard epidemic guidelines?" Borchardt asked. "Are we in a pandemic or not? And do we have one set of rules for protesters and another for everyone else?"

De Blasio admitted there was disparate treatment:

"When you see a nation, an entire nation simultaneously grappling with an extraordinary crisis seeded in 400 years of American racism, I'm sorry, that is not the same question as the understandably aggrieved store owner or the devout religious person who wants to go back to services. This is something that's not about which side of the spectrum you're on. It's about a deep, deep American crisis… Sorry guys, there's a world outside New York City. So we're dealing with this."

I think De Blasio's statements make the case for viewpoint discrimination under the Free Speech Clause. But I also think his position undermines any pretense of neutrality with respect to the Free Exercise Clause.  When Jewish people gathered to celebrate a funeral, NYPD broke up the assembly, and the Mayor publicly criticized those groups. The risk of public gatherings is real

Robby Soave offers this commentary:

As a reminder, here was what de Blasio had to say to New Yorkers who had gathered to mourn a Hasidic rabbi last month: "My message to the Jewish community, and all communities, is this simple: the time for warnings has passed. I have instructed the NYPD to proceed immediately to summons or even arrest those who gather in large groups. This is about stopping this disease and saving lives. Period."

This is not just hypocritical—it's odious. Protesting against police violence is extremely important, and the unprecedented public outcry over Floyd's death is a critical opportunity to send a message that reforms are needed. But to say that this cause, and only this cause, should be exempt from the lockdown is, at the very least, remarkably callous. Mourning a deceased person is no less important to that person's loved ones than ending police brutality is for the thousands of people engaged in protest. (This should be doubly obvious, since in both cases we are talking about a person's death as the root issue.)

The Governor of New Jersey offered a similar criticism:

"I don't want to make light of this, and I'll probably get lit up by everyone who owns a nail salon in the state," Murphy said during his coronavirus briefing in Trenton on Monday. "But it's one thing to protest what day nail salons are opening, and it's another to come out in peaceful protest, overwhelmingly, about somebody who was murdered right before our eyes."

New Jersey currently limits gatherings to 25 people in outdoor settings and 10 people indoors. Organizers of protests calling for reopening have been charged in recent weeks with violating Murphy's executive orders.

"I put those into different orbits," said Murphy, a Democrat who has said Floyd's death "highlights systemic racism and the stain that slavery still leaves in our country today."

This double-standard demonstrates hostility towards religion, at a far greater level than the errant comments in Masterpiece Cakeshop. The Free Exercise of religion simply isn't as important to these governors and mayors. And that fact ought to move the case from Smith's rational basis test to Lukumi's strict scrutiny.