The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On February 24, 2020, the Supreme Court granted review in Fulton v. City of Philadelphia. The very next day, the CDC announced that COVID-19 was heading toward pandemic status. Over the ensuing year, the Court's Free Exercise Clause jurisprudence was tested in ways previously unimaginable. Governments completely shut down houses of worship. Yet soup kitchens in those same churches continued to serve people who were eating without masks. Cathedrals that could seat thousands were limited to a dozen people. But cramped, poorly-ventilated train stations chugged along. Penn Station could open, but St. Patrick's Cathedral could not. And throughout this process, Governors would unilaterally tweak policies on the fly in full view of free exercise conflicts. Often these changes were naked efforts to frustrate appellate review. But generally, Governors tried to maintain a patina of neutrality by treating religious worship slightly better than some other disfavored activity. And courts dutifully deferred to these arbitrary diktats as "neutral" laws that were "generally applicable." This past year has shined a new light on Employment Division v. Smith. And that experience has shifted how I think about Fulton.
Under Smith, a "valid and neutral law of general applicability" is reviewed with the rational basis test. Smith dealt with a controlled substance law that was not enacted with regard to Native Americans. The legislature adopted this statute through normal channels to apply to all circumstances. In contrast, the ordinances at issue in Lukumi were enacted with full view of an extant controversy. The ordinances were hastily adopted after the Santeria Church had already planned to open. Indeed, there was little deliberation. The City held an "emergency public session." This legislative history, the Court said, reflected a targeting of religion.
For a law to be "neutral" and "of general applicability," the law should be enacted prospectively, without regard to an extant conflict over religious liberty. And to prove its prospective nature, the law should endure beyond the current conflict. The government should not be able to flick an on-off switch at any time. In short, the law must be passed behind proverbial the veil of ignorance, and should remain in effect when that veil is lifted.
Over the past year, Governors have issued edict after edict without any deliberation, in full view of the religious liberty conflict. There was no form of public comment, or legislative hearings. Governors simply posted a new PDF. Indeed, Governors would often modify PDFs without any public notice–what I've called "government by blog post." This anti-administrativist thinks these random diktats are not "laws" at all, and violate any semblance of the due process of law. But under a fair reading of Smith, this sort or arbitrary lawmaking cannot be viewed as "neutral," for these laws are targeted at a specific religious conflict. Many courts limit the concept of "targeting" as animus towards a specific faith. This reading is flawed. Smith and Lukumi do not require a showing of animus against a particular religion to establish a laws is not neutral. Then-Judge McConnell made this point cogently in Shrum v. City of Coweta (10th Cir. 2006):
True to this history, the Free Exercise Clause has been applied numerous times when government officials interfered with religious exercise not out of hostility or prejudice, but for secular reasons, such as saving money,7 promoting education,8 obtaining jurors,9 facilitating traffic law enforcement,10 maintaining morale on the police force,11 or protecting job opportunities.12 Proof of hostility or discriminatory motivation may be sufficient to prove that a challenged governmental action is not neutral, Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533, 113 S. Ct. 2217, 124 L. Ed. 2d 472 (1993); Axson-Flynn v. Johnson, 356 F.3d 1277, 1294 (10th Cir.2004), but the Free Exercise Clause is not confined to actions based on animus.
During the pandemic, Governors have (generally) not targeted a specific faith. (I'm looking at you, Governor Cuomo). Rather, these arbitrary regulations show a disfavor of religion itself. Consistently, Governors have simply viewed religious worship as relatively unimportant–that is, non-essential–as compared to other favored secular activities. And they made these decisions with full view of religious conflicts, and often in response to litigation.
Even if Smith is not overruled, the precedent should be understood to only apply to actual "neutral" laws that are "generally applicable." That is, prospective laws, passed behind the proverbial veil of ignorance, that are actually generally applicable to future circumstances. Regulations that have a short shelf life, and can be rescinded at any juncture without any accountability, do not qualify. Ad hoc guidance documents drafted in response to an appellate brief cannot be considered "neutral" laws. This understanding of Smith would force Governors to actually justify their arbitrary infringements of the free exercise of religion. It would no longer be sufficient to simply identify some comparable activity that is treated worse that religious exercise. Even a "stupid staff," as Justice Scalia would say, can exercise this stratagem. At a minimum, the government should be required to actually enact a prospective law to benefit from rational basis review. Informal guidance documents are not entitled to blind deference.
The Fulton Court should take away this important lesson from the past year. Governors should not be able to cheat Smith by gerrymandering facially neutral regulations for the current moment.