How the Fulton Court Should View Smith In Light of The COVID-19 Pandemic

Smith's rational basis standard should apply to prospective neutral laws, not arbitrary regulations gerrymandered to avoid an extant free exercise religious conflict.


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.

NEXT: Today in Supreme Court History: April 3, 1962

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  1. 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.the law must be passed behind proverbial the veil of ignorance, and should remain in effect when that veil is lifted.

    This is too strict a requirement.

    First, legislatures can’t foresee all eventualities. There are problems legislators only become aware of when they arise.

    Second, why should they endure? Suppose the legislature passed a bill restricting worship services – among other things – in response to a pandemic. Surely the law can specify that the restriction disappears when the pandemic is determined to be over by some reasonable mechanism. And surely the law can authorize the Governor, say, to flick an on-off switch as needed.

    I don’t think you really thought this through.

    1. The requirement you quote is merely one of the conditions for a law to get rational-basis deference under this framework. It is not a requirement for the legislature to pass a law at all.

      A legislature retains its ability to pass laws in response to specific conditions — but those laws must pass scrutiny appropriate to the content and motives of that responsive legislation.

      As to your specific example, a law can certainly specify that a restriction disappears when some trigger for it disappears — but the “reasonable mechanism” needs to pass review that considers the structure and implementation of that mechanism. To continue with your example, I do not think it is “sure” that the legislature can delegate on-off control to the governor’s whim; the governor should have some good basis to determine what is needed, and what is “good enough” depends on the particular restrictions.

      1. The problem is Blackman wants to get to fatal in fact scrutiny and strike it down.

        Here’s the better hypothetical. A new respiratory virus pops up, and a city responds with a temporary closure of all facilities that seat people less than 6 feet apart, which will be rescinded when the case count of the virus dips below X number of cases.

        Why should that get strict scrutiny and be struck down? Yes, it’s temporary, but it’s a classic Smith rule, completely generally applicable and not singling out churches.

  2. Free exercise is an enumerated right. Enumerated rights deserve strict scrutiny. Smith was highly flawed when it was decided, no one should be dependent on majority for the exercise of their deeply held religious beliefs (harm test not withstanding). Scalia knew it as did majority of Americans hence RFRA. Bring back Sherbert test.

    1. You are begging the question as to whether free exercise, as distinguished from exercise, includes disobeying a neutral and generally-applicable law.

      1. One thing that would help is a strict standard on when a law qualifies as “generally applicable”

        I would go so far as to say to be “generally applicable” the law in question must provide one single standard for the entire population of the jurisdiction to which the law applies.

        Exceptions based on facts on the ground not tied to the identity of the person are allowed.

        Exceptions based on classifying different sub-groups by Identity or practices tightly tied to a particular sub-group make a law not generally applicable.

        1. Can you give some examples of laws that meet your criteria and some that do not?

          1. Allowing cramped & claustrophobic Penn Station to remain open while closing the much more airy cathedrals comes to immediate mind — IF the criteria was risk reduction, it would be the other way around.

            1. Penn Station is not cramped and claustrophobic. It is largely empty since the pandemic.

              And it involves transient contacts, rather than people congregating for extended periods of time.

        2. Matthew, I would have thought deciding a case based on the identity of a particular religious group, and deferring to its particular practices, would be pretty clear-cut establishment of religion. Isn’t that just the flip side of singling the group out to be discriminated against? Why do you think it isn’t? Why is it right to say a court can’t say what beliefs a reglious person must hold, but then to turn around and say, but a court must defer to these particular beliefs, because they amount to religion?

          1. I’m not following what you mean by “deferring” to religious beliefs.

            1. Josh R, I mean taking notice of the content of particular religious doctrines or practices, and based on concern that those not be burdened, deciding cases differently than they would have been decided if religion had never been part of it.

              If a court is not empowered to consider religious doctrines as a test of religious identity (which I agree should not happen), then the court can’t be empowered to take account of religious doctrines as a basis to decide cases. You can’t make protection of religious doctrines a basis for deciding cases involving religious claimants, but only for deciding in favor of them, never against them. Doing it that way establishes religion. The only solution is the same one used to keep courts out of religious identity issues—questions of religious content are never properly considered by the court.

              1. I think in Lukumi, the Court took notice of a religious practice and decided the case differently than it would have religion had never been part of it. Are you saying Lukumi/i> was wrong because it violated the Establishment Clause? Moreover, wouldn’t the same apply if the law in question had explicitly outlawed Santeria animal sacrifice?

                Those results strike me as rather odd.

              2. If a court is not empowered to consider religious doctrines as a test of religious identity (which I agree should not happen), then the court can’t be empowered to take account of religious doctrines as a basis to decide cases. You can’t make protection of religious doctrines a basis for deciding cases involving religious claimants, but only for deciding in favor of them, never against them.

                What a court can’t do is adjudicate the validity of a particular set of doctrines. That doesn’t mean a court can’t consider whether one holds those doctrines, and if so what the effect of a particular law or policy would be.

                1. Nieporet, you are the lawyer. But what you say strikes me as outside my untutored understanding. I thought the court could not say to someone, “You call yourself a Catholic, but you deny the infallibility of the Pope, so you are not a Catholic.” Please help me out.

                  1. Of course a court can’t say “you are not a Catholic.” So what? I’m still truing to figure out what cases (real or hypothetical) you think courts have gotten wrong because they improperly deferred to religious belief.

  3. Was this doctrine briefed or argued in Fulton?

  4. Death to Smith – Scalia’s Catholicism run rampant – more peyote.

  5. I write this as a historian and not a lawyer — not being raised here are both the “bill of attainder” clause in the text of the Constitution, and both the “equal protection” & “due process” clauses of the 14th Amendment — along with Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

    In Federalist 39, Madison wrote that a republic “is a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior.”

    What were these men trying to prevent? What real life things had they seen, heard about, and/or endured — what was it that they didn’t want happening again?

    They sought to prevent arbitrary and capricious .rule by fiat. They sought to prevent a king — or even a governor — from doing exactly what about a dozen governors have been doing for over a year now. Note the reverence for the legislature in both Article IV Section 4 and Federalist 39 — they saw the power coming from the legislature.

    Look at the 14th Amendment and what it was intended to prevent — arbitrary and capricious state laws intended to screw with the rights of Black folk. They’d seen this done, and while they’d proceed to ignore it being done again under Jim Crow, the intent at the time was to prevent it from ever happening again.

    So, from a historical perspective and that of the intent of the authors, the goal was to prevent the very “rule via .pdf” that we are seeing now. As to the legal relevance of these legal documents, I’ll leave that to others to debate.

  6. Police v. Newark illustrates the outer reach of the arvumejt. It involved a Muslim police officer who wanted to keep his beard for religious reasons. Then-Judge Allito, writing for the 3rd Circuit, said that since the City gives medical exceptions, it’s law lacks “general” applicability and it has to give exceptions for religion as well. In effect, if you allow an exception for anything, you have to allow an exception for religion.

    “Most favored business status” is actualy a lesser standard than this, as medical exceptions for individuals would probably be permitted.

    I agree in general with Professor Blackman here that the Supreme Court should scrutinize governments’ claims that thoer regulatoons are general and neutral, should have a relatively high standard for both, and shouldn’t allow laws riddled with exceptions to pass muster.

    However, unlike Professor Blackman, I would acknowledge that this isn’t the only possible interpretation of what “general” and “neutral” mean. Simply saying that laws have to be gwneral and neutral doesn’t automatically lead to the Police v. Newark test.

  7. Also, I don’t see administrative procedure as being in any way constitutionally required. If it is constitutional for the executive branch to regulate, or for that matter for the judiciary to legislate by means of common law, which also has ancient roots and occurs in many states, then I don’t see that the constitution requires the various notice, comment, or deliberation formalities of the Administrative Procedures Act. It doesn’t require it of legislatures. Legislatures can simply pass laws on a single vote with no debate at all if they so wish.

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