The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
With an increasingly-conservative Supreme Court, progressives have recognized the importance of avoidance: keep important cases away from the Supreme Court to avoid a conservative ruling. This term, New York City took deliberate steps to moot a pending Second Amendment. challenge. The City was eager to defend the law before the Second Circuit, and no doubt agreed with its constitutionality. But the Court decided to play keep-away with the Supreme Court. That strategy was prudent, though likely short-lived. Soon enough, the Supreme Court will grant one or more of the oft-relisted cases. But New York will live to fight another day.
In 2017, the D.C. Attorney General declined to appeal Wrenn v. D.C., another Second Amendment case. The D.C. Circuit declared unconstitutional the District's conceal-carry law. The A.G. stated that the law was constitutional. But worried about an adverse Supreme Court decision:
"Public safety is, and has always been, my paramount concern. I continue to believe the District's 'good reason' requirement is a common-sense, and constitutional, gun regulation. However, we must reckon with the fact that an adverse decision by the Supreme Court could have wide-ranging negative effects not just on District residents, but on the country as a whole."
We have seen a similar keep-away strategy in the Corona litigation.
In March, the Pennsylvania Governor deemed firearm stores "non-life-sustaining businesses." The state was eager to defend that decision before the Pennsylvania Supreme Court. But, as the case was on track for an emergency application to the U.S. Supreme Court, the Governor rescinded his policy. Was this change an attempt to moot the case? Perhaps. After NYS Rifle & Pistol and Wrenn, I have become cynical when officials who favor strict gun control suddenly determine that gun control policies should be abandoned when the Supreme Court may step in.
Last week, two Free Exercise cases followed a similar trajectory (I blogged about them here and here). First, on May 26, the South Bay United Pentecostal Church in California filed an application for injunctive relief with Circuit Justice Kagan. That same day, the County of San Diego adopted a new policy: a limited number of people could meet in houses of worship so long as they comply with certain social distancing guidance. Unsurprisingly, California argued that the appeal is now moot, or at least in flux because of the new policy. As a result, relief should be denied. The church replied:
The Government's primary argument is that their recent actions moot Plaintiffs' claims, and that the Court should not get involved at this stage. But this reveals the main problem with California's position—that the violation of Plaintiffs' constitutional rights is indisputably clear. The eleventh hour attempts by California and Illinois to moot the applications to this Court do not impact the analysis. California is still violating Plaintiffs' fundamental constitutional rights, and millions of Americans across the county are still having their constitutional rights trampled upon.
Let's consider the second case. On May 27, the Elim Romanian Pentecostal Church in Illinois filed an application for injunctive relief with Circuit Justice Kavanaugh. The very next day, the Illinois Governor adopted a new policy that allowed the church to meet, subject to social distancing guidelines. This church also charged the government with trying to moot the case:
Mere hours before his Response was due in this Court, the Governor announced a sudden change in his 10-person limit on religious worship services (Resp. 1, n.1), after vigorously defending his policy in both lower courts, and having announced barely 3 weeks ago that it would be 12 to 18 months before numerical limits on worship services were lifted (App. 6). What changed? The Governor was summoned to the steps of this Court to give an account.
On May 29, the Court denied the Illinois petition with a summary order:
Application (19A1046) denied by the Court. The application for injunctive relief presented to Justice Kavanaugh and by him referred to the Court is denied. The Illinois Department of Public Health issued new guidance on May 28. The denial is without prejudice to Applicants filing a new motion for appropriate relief if circumstances warrant.
Perhaps changes in California and in Illinois were motivated independently of the litigation. The Illinois policy, for example, was set to expire on May 29. But once again, I am cynical. The governors adopted policies at the last minute that, at a minimum, made it tough for the Court to grant relief. They could have adopted those policies before the courts of appeals, but they chose not to. They played good games of keep-away.
This flux, I think, affected the disposition of South Bay. Chief Justice Roberts's concurrence in South Bay analyzed the new policy, not the policy that was at issue in the Court of Appeals. He stated that "local officials are actively shaping their response to changing facts on the ground." This fact, I think, was key to the Chief's analysis.
In some regards, Justice Kavanaugh's dissent reflected not only the new order, but also the old order. In any event, that 11th hour revision undermined the fact that the government was acting neutrally towards religion. I do not think the proper analysis concerned whether facilities were "comparable." Rather, I think the better analysis considers why and when the government exempted some facilities, but not others.
Let's consider a counterfactual: two weeks ago, tens of thousands of people peacefully amassed in the downtown of a major city to protest the shut-down orders. They marched on public streets, highways, and sought permits to speak at City Hall. Some were wearing masks, but most were not. All were standing in close proximity, shoulder-to-shoulder. I suspect their very presence would have been deemed a public health hazard, and they would have been required to disperse. I cannot imagine they would have been given permission to speak to a crowded gathering at a government facility.
This week, we have witnessed peaceful demonstrations of similar sizes throughout the country. Most–but not all–of the peaceful demonstrators were allowed to assemble. Most–but not all–were wearing masks. And at least in my hometown, people were given permission to march on highways, public streets, and gather at City Hall.
Why were governors and mayors willing to let thousands of people demonstrate today, but were not willing to let hundreds of people assemble in a church a few weeks ago. For sure, you can argue that ventilation is better outside. But that argument only works to a point. The Surgeon General warned that the outdoor protests may yield outbreaks of Corona.
I see a different reason why mayors and governors allowed protestors to assemble without social distancing, but religious parishioners were forbidden to assemble even with social distancing: the officials viewed in-person protests as "essential," but in-person religious service as "non-essential." Judge Sutton stated the issue concisely:
The exception for "life-sustaining" businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions. R. 1-7 at 2–6. But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.
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. This dichotomy warrants constitutional scrutiny under Smith, as well as Masterpiece Cakeshop. Arguing about whether certain facilities are "comparable" or not is the wrong frame.