The Volokh Conspiracy

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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.