The "Essential" Free Exercise Clause, Forthcoming in the Harvard Journal of Law & Public Policy

My article from October 2020 on the COVID-19 cases ballooned, and was trifurcated into three separate articles.


On November 12, 2021, I shared a draft article titled What Rights are 'Essential'? The 1st, 2nd, and 14th Amendments in the Time of Pandemic. As the title suggested, I wrote about all facets of the COVID-19 litigation: the free exercise of religion, the right to keep and bear arms, and the abortion cases. I also wrote an extended discussion of Jacobson v. Massachusetts. I was pleased that the Harvard Journal of Law & Public Policy agreed to publish the article.

Back in November, the world was a very different place. Chief Justice Roberts's South Bay II superprecedent was the law of the land. Justice Barrett was on the bench. And the Cuomo litigation was already rippling through the courts. Two weeks later, the Court decided Roman Catholic Diocese. And in an instant, the legal landscape changed.

At that point, I decided to trifurcate my article. One article on the Free Exercise Clause, a second article on the Second Amendment, and a third article on Jacobson and the Fourteenth Amendment.

The Harvard JLPP will be publishing the first article, now titled The "Essential" Free Exercise Clause. This article is up to date, and concludes with Tandon v. Newsom. The Texas Review of Law & Politics will be publishing the second article, titled The "Essential" Second Amendment. I will post that draft shortly. The third article, which I am still working on, will be titled The Irrepressible Myth of Jacobson v. Massachusetts. I have also preserved a PDF of my original November article.

Here is the abstract of The "Essential" Free Exercise Clause:

In the span of a year, COVID-19 would affect every corner of the globe. During this period, governments were confronted with difficult choices about how to respond to the evolving pandemic. In rapid succession, states imposed lockdown measures that ran headlong into the Constitution. Several states deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. In short order, states restricted the exercise of a constitutional right, but allowed the exercise of preferred economic privileges. And this disparate treatment was premised on a simple line: whether the activity was "essential" or "non-essential." If the activity fell into the former category, the activity could continue. If the activity fell into the latter category, it could be strictly regulated, or even halted immediately. Houses of worship challenged these measures as violations of the Free Exercise Clause of the First Amendment.

This article provides an early look at how the courts have interpreted the "essential" Free Exercise Clause during the pandemic. This ongoing story can be told in six phases. In Phase 1, during the early days of the pandemic, the courts split about how to assess these measures. And for the first three months of the pandemic, the Supreme Court stayed out of the fray.

In Phase 2, the Supreme Court provided its early imprimatur on the pandemic. In South Bay Pentecostal Church v. Newsom, the Court declined to enjoin California's restrictions on religious gatherings. Chief Justice Roberts wrote a very influential concurring opinion that would become a superprecedent. Over the following six months, more than one hundred judges would rely on Roberts's opinion in cases that spanned across the entire spectrum of constitutional and statutory challenges to pandemic policies.

In Phase 3, the Roberts Court doubled-down on South Bay. A new challenge from Nevada, Calvary Chapel Dayton Valley Church v. Sisolak, upheld strict limits on houses of worship. Once again, the Court split 5—4. Justice Kavanaugh wrote a separate dissent. He treated the Free Exercise of Religion as a "most-favored" right. Under Justice Kavanaugh's approach, the free exercise of religion is presumptively "essential," unless the state can rebut that presumption. South Bay and Calvary Chapel would remain the law of the land through November.

Phase 4 began when Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. The new Roberts Court would turn the tide on COVID-19 cases in Roman Catholic Diocese of Brooklyn v. Cuomo. Here, a new 5—4 majority enjoined New York's "cluster initiatives," which limited houses of worship in so-called "red" zones to ten parishioners at a time. Now, Chief Justice Roberts dissented. Roman Catholic Diocese effectively interred the South Bay superprecedent.

Phase 5 arose in the wake of Roman Catholic Diocese. Over the course of five months, the Court consistently ruled in favor of the free exercise of religion. South Bay II and Harvest Rock II enjoined California's prohibitions on indoor worship. And Tandon v. Newsom recognized the right of people to worship privately in their homes.

We are now in the midst of Phase 6. States are beginning to recognize that absolute executive authority cannot go unchecked during ongoing health crises. Going forward, states should impose substantive limits on how long emergency orders can last, and establish the power to revoke those orders.

The COVID-19 pandemic will hopefully soon draw to a close. But the precedents set during this period will endure.

Current events always seem to detract from my planned research agenda. One year ago, I could not have fathomed writing any of these three articles. But here we are. At some point, I hope things will quiet down to allow me to work on my longer-term projects.

NEXT: The Deeper Problems with Justice Barrett's Book Deal

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  1. Since the 14th Century, the correct quarantine practice has been to restrict the infected. That works. The village of Vo Euganeo quarantined everyone who tested positive for 2 weeks, and ended its epidemic of COVID.

    To enrich the Chinese Commie kowtowing billionaires, the Democrat Party locked down everyone healthy. That forced everyone to use internet services for all aspects of life. That added $1.7 trillion of wealth to the billionaires, $2.2 trillion in China. It dropped the world GDP by $4 trillion, killing millions of people by starvation. All the Deaths of Despair have soared in the US, an effect described in 1887, and repeatedly confirmed after many economic downturns. Meanwhile, the Democrat lockdown allowed essential workers to travel. Infected, asymptomatic, young people traveled to provide intimate care to moribund people in nursing homes, wiping out tens of thousands. Perfect way to reduce Medicaid costs for Democrat jurisdictions.

    This lockdown of normal people has been the greatest fraud heist and the greatest mass murder in human history.

    1. China sends its virus. Its Democrat Party agents and billionaires tear down the US economy. They get rid of Trump. At some point, the US will have to reply.

      1. The Supreme Court had an opportunity to help this country by judicial review, by blocking the lockdowns in hundreds of lawsuits. They chose to limit their help to a very tiny, meaningless island of religion.

        1. He’s actually right — the very concept that bureaucrats have the right to arbitrarily decree what private activities are “essential” and which are not should have been challenged.

          Challenged under a lot of things, starting with the “republican form of government” clause. After all, we fought a Revolution over less — King George didn’t drive half the restaurants in Massachusetts into bankruptcy, King Charlie *did*.

      2. China did not “send” it; but the CCP certainly took advantage of the situation after the pandemic spread.

        1. They closed Wuhan off to internal travel, while not restricting international travel, or warning other nations to quarantine returning travelers. That’s close enough to “sending” it for government work.

          1. Assuming, for the sake of argument, they didn’t also create it.

            The more I see about variants arising, not to mention apparent differences in racial vulnerability to it (which the CCP was rumored to have been working on) the more I think that someone was playing with something in the bioweapons lab and it accidentally escaped.

            But even if we buy the ChiCom’s story about how this came out of a “wet market”, the fact that a purportedly civilized country permitted such places to exist in the 21st Century, notwithstanding all the warnings that the medical people were giving about how that would inevitably lead to a pandemic, is something that the Party needs to answer for.

            The thing I raise about the Slaughterhouse Cases is that they *were* directed toward a legitimate public health interest. Same thing here — if you are butchering exotic animals on street corners and not cleaning up the mess afterwards, sooner or later you are going to have health problems from that.

            Likewise if you have leaking sewer lines in apartment buildings, not to mention people housing chickens in their homes.

  2. I had been under an impression there was a 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th, etc. amendment. What happened to them? Are they so unessential compared to the 1st, 2nd, and 14th as not to be worth mentioning?

    1. I argued, not a scintilla of rational basis, since asymptomatic infected young people were allowed to give intimate care to moribund people.

    2. Guns, superstition, and abortion constitute an exhaustive list of the “essential” issues for some people.

      Oops . . . forgot gays. But apparently not even the most committed conservative could figure a way to torment gays in this context.

      1. If you wish to alter the Bill of Rights to remove some things because they get in your way, please propose amendments.

        Keep in mind the religious part was a detente between different religious factions who did not want the federal government to become “religiously captured” by one of the other guys’ religions.

        You can’t have it both ways, or apparently you want to thread the needle, allowing government to casually step all over religion without allowing any one to gain ascendancy.

        Not sure that’s a good plan. And when you realize politics and religion are the same phenomenon, large groups of memes designed to spread to many people so the leaders can seize control, a downright terrible plan.

        1. I believe people should be free to believe as they wish.

          I do not believe politics and religion are the same phenomenon.

          I believe special privilege for superstition should be limited.

          I believe bigotry and ignorance are not improved by a cloak of superstition.

    3. Because the 3rd Amendment has been so heavily litigated….

      Reality is that the 1st & 2nd are the only amendments which protect law-abiding citizens. The others only protect criminals (we can argue about the 7th) or states.

      1. The others only protect criminals

        Because if the police arrest you, you must be a criminal. And if you look “suspicious” it’s fine to haul you in, search your home, and so on. Who needs trials, defense counsel, etc? Only the guilty.

        1. They primarily protect criminals, though I’d agree that, without them, the innocent would be much more frequently targeted for being treated like criminals.

          The point is valid: The 1st and 2nd are the main amendments protecting your everyday life.

          1. They primarily protect criminals, though I’d agree that, without them, the innocent would be much more frequently targeted for being treated like criminals.

            We actually don’t know what things would look like without #’s 4-6. It seems likely to me that there would be places with serious problems of political abuse of law enforcement powers. And the kinds of problems we have now with police abuse would be worse. “Warrant?” “We don’t need no steenking warrant.” So I disagree with your “primarily.” The amendments actually protect lots of innocent people.

            1. Yes, in the counterfactual world where those amendments didn’t exist, life would be much worse for the average person. In the world where they do exist, they are mostly of use to criminals.

              Or, hey, maybe in a world where you didn’t have those amendments, there would be much more political incentive to crack down on abuses, because everybody would be subject to them? Hard to say.

              1. maybe in a world where you didn’t have those amendments, there would be much more political incentive to crack down on abuses, because everybody would be subject to them? Hard to say.

                Yes. Hard to say, but my guess is that we would see enormous regional variation. Crackdowns on abuse some places, lots of abuse elsewhere, with various minority populations – of all types – being especially vulnerable.

              2. “Or, hey, maybe in a world where you didn’t have those amendments, there would be much more political incentive to crack down on abuses, because everybody would be subject to them? Hard to say.”

                That’s the problem with the exclusionary rule and the “fruit of the poisonous tree” — they serve to protect the guilty, not the innocent. It’s merely an incentive to not violate the rights of the innocent, and I’d argue not all that much of one.

                I’d much rather see a situation where if you violate the rights of someone who is guilty, no problem — but if the person isn’t, you’re f***ed. The cops go to prison instead.

                Now that’s not really workable because you’d have evidence being planted and the rest, but….

        2. Fair enough — perhaps I should have instead wrote “are perceived to only protect criminals.”

          The police make mistakes, even when their motives are pure — and they often aren’t. I know that, personally — trust me.

          My point is that the average citizen is going to look at the 1st & 2nd as “my right to” while the rest as “their rights.” First person versus third person.

          1. perhaps I should have instead wrote “are perceived to only protect criminals.”

            No doubt by some. OTOH, I know non-criminals who have had run-ins with law enforcement, and came to appreciate the protections offered.

            The individual cases where the Amendments come into play may often benefit criminals, but that ignores the fence they build to protect the innocent, and generally restrict law enforcement powers.

        3. The Bill of Rights is designed not to protect criminals, or protect stupid, mean speech.

          They’re designed to empty the dictator’s golf bag of his best stuff!

          The driver of censorship!

          The putter of filching through your opponents’ papers looking for anything to tag him with!

          The nine iron of double jeopardy!

          The pitching wedge of outlawing or controlling printing presses as backdoor censorship!

          The graphite shaft two iron of trial without jury by a government official!

          That telescoping cup thingie to get your balls out of the water of lying that only enumerated rights actually exist!

          And so on!

      2. Don’t forget the 5th amendments taking clause, that maybe the most important protection for the law abiding.

    4. The 3rd, 4th, 5th, 6th, 7th, etc were not significantly impacted one way or the other by the pandemic or its lockdown orders. It’s not that they are inconsequential – just that they weren’t implicated in this particular crisis.

  3. I think this is basically accurate. Roman Catholic Diocese represented an about face from South Bay Pentecostal, coming from Justice Ginsberg’s replacement by Justice Barrett switching a 5-4 majority to 5-4 the other way, and all coming on the shadow docket.

    I think Justice Roberts’ concerns are legitimate here.

    First, the shadow docket is no place to make a complete 180 degree reversal of position on major legal questions. It should be done based only after full briefing and argument. The shadow docket, and extraordinary remedies like injunctions, should be based on clearly established existing law. It is no place to change the law.

    Second, the current majority’s impatience with states like California and lower courts like the 9th Circuit is misplaced, even petulant. The Justices should be mature enough to recognize that they changed the law and should understand that when they do so, especially when they do so on the shadow docket, people are going to get confused by this.

    Finally, and it needs to be said, I think the source of this petulance is conservative Justices simply asserting that their view of the law is the way the law has always been, because they wanted the law to have always been that way. I think that this tendency is dangerous and I urge the Justices to desist from it. It represents the same sort of ego inflation, inability to accept others’ views, and tendency to regard ones personal views as somehow being the Universe’s, that liberal justices exhibit when they assert their personal moral beliefs as objective moral facts and their policy views as inherent in the constitution.

    Manner is as important as substance. The petulant manner of this power grab does not speak well for the current crop of Justices, or bode well for the Republic.

    And I say this as someone who thinks that in general, the Religion clauses should be strongly enforced. But not by first stealth-changing the law on the shadow document, and then castigating the lower courts and the political branches for not having seen that the law was always that way.

    Remember the scene in 1984 when an Inner Party member, in the middle of a Hate Week speech, suddenly discovered that the posters are all wrong? They say we are war with Eurasia, but they’re our allies! Everybody knows we are at war with Eastasia!

    The last thing we want is a Supreme Court that behaves like that, makes an abrupt doctrinal change and then tries to pretend the law was always that way. It’s doublethink straight out of 1984. It needs to be called by name. That way lies the Ministry of Peace, the Ministry of Truth, and the Ministry of Love. If behavior like that is considered acceptable, totalitarianism cannot be far behind us.

    Better to acknowledge change is being made, better to accept that following accepted procedures requires a slower pace of change, then to make abrupt changes and then try to pretend they weren’t changes. The survival of the Republic, the legitimacy of the courts, commitment to truth and honest dealing, all are more important than getting ones way on a particular issue and getting it RIGHT NOW.

    Even if I might think the new majority is mostly right on the merits.

    1. “Even if I might think the new majority is mostly right on the merits.”

      The new majority has not been installed yet. We are barely at the ‘special commission’ part of the program.

      1. I predict the commission will recommend not adding more justices providing cover to Biden who doesn’t want to do so.

        1. Does Biden even know where he is?

          Reality is that he is a puppet and what matters is who is pulling the strings this week.

          1. Does Biden even know where he is?

            Yes. Do you?

        2. I don’t think Biden’s druthers don’t have a lot to do with it. What’s he going to do veto it if it passes?

          I think it depends soley on whether they think they can strongarm Manchin and Sinema, plus how badly it polls. It might not even pass the house if there are enough members who think it will cost them re-election.

    2. Bingo. The “most favored” standard went from a dissenting opinion, to a concurring opinion, to the opinion of the Court, all in the shadow docket. Moreover, that “magic” happened only because Barrett replaced Ginsburg.

      As for the merits, the most-favored doctrine applies to “comparable” secular conduct. As such, it’s hard to pass judgment until we know what the standard for “comparable” is.

      So not only has the shadow docket substantially changed doctrine. It did so without resolving major questions in the new doctrine. Yuch.

      1. And it’s so needless. Nothing prevented SCOTUS from doing what it has done over the years with other emergent cases like Bush v. Gore, New York Times Co. v. United States, or Ex Parte Quirin. They could have granted cert., had a compressed briefing schedule over a few days, and held oral argument. Yes that would have meant some sort of status quo injunction or stay order for a week or something, but so what?

        Using the shadow docket to effect a fundamental change in the law was a completely unforced error by the Court.

  4. “On November 12, 2021. . . . ”

    Now we know how/why Prof. Blackman is soooooooo smart.

    1. You can poke fun at Prof. Blackman but he wouldn’t be here with Prof. Volokh’s invitation.

      1. For which I thank him.

        1. If you like Prof. Blackman’s preferences and work, you are destined to hate the next half-century of American progress.

          You probably don’t like the most recent five or six decades of American improvement, either.

  5. Great subhead! “My article from October 2020 … was trifurcated into three separate articles.”

    Well, be thankful it wasn’t trifurcated into ten separate articles. That would have been a ton of work, not to mention mathematically embarrassing.

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