"The 'Essential' Free Exercise Clause" Has Been Published in the Harvard Journal of Law & Public Policy

124 pages will take you from the onset of the pandemic through Tandom v. Newsom


The Harvard Journal of Law & Public Policy has published my article, The "Essential" Free Exercise Clause. I began writing this article in the spring of 2020. Over the ensuing year, the piece went through many changes as the Court, and its jurisprudence shifted. I am proud of this final article, which stretches 124 pages. It tells the entire story of the COVID Free Exercise litigation from South Bay to Tandom v. Newsom. And, it was published before Fulton, so my article will not be pre-empted! (Just my luck, Fulton will come out today).

Here is the abstract:

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 Chief Justice Roberts's opinion in cases that spanned 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.

I am grateful to the JLPP editors for guiding this ever-changing piece from start to finish.

NEXT: Today in Supreme Court History: June 3, 1918

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  1. The lockdown was irrational. For 600 years, the infected have been quarantined, not the normal. Yet, infected asymptimatic young essential workers provided intimate care to nursing home residents. Wiping them out. Hundreds of lawsuits were filed. The Supreme Court could have made judicial review useful. It deferred only to the biggest scam ever, religion.

    Result? Thousands of Americans died. Millions died around the world from the lockdown, not from the virus.

    Once again the lawyer profession utterly failed.

  2. Perhaps Prof. Blackman may want to update this concerning this story. Or maybe freedom of speech only runs in one direction.

    “A Law Student Mocked the Federalist Society. It Jeopardized His Graduation.

    The Stanford student sent a satirical flier that drew a complaint from the conservative group. The university then placed a hold on his diploma.”

    1. Stanford Law School should immediately loae its tax exemption, and be shut down. Zero tolerance for PC. To deter.

    2. Is the kid running his own religion, and was it shutdown because of the pandemic?

      Then there is no need to update the article.

  3. Is this one of the more rapid changes in law caused by a change in Court personnel? It’s an interesting combination of a long running dispute and a pretty dramatic shift from RGB to ACB.

  4. Downloaded the paper, and am reading it Friday nite!

  5. My first impression when this issue came up was the right to freely worship should be pretty much absolute, especially during a pandemic when people need the comfort of their religion during turbulent times.

    I still feel that way, I am an atheist, but I think first amendment law is pretty clear the government can’t second guess churches and parishioners on the necessity of religious services (as opposed to the first amendment which says nothing about the issue and confines itself to prohibiting congress from creating an established church).

    1. I don’t doubt you feel the First Amendment prohibits the government from seconding guessing churches, but Smith says otherwise. SCOTUS altered Smith, in a way that isn’t yet clear, in the shadow docket.

      1. No, all Smith said that churches don’t have an exemption to break generally applicable law. But the problem was that the state governments didn’t have a generally applicable law that they were enforcing on churches too. They had a law for Home Depot, a law for casinos, a law for outdoor restaurants, another for indoor restaurants.

        Where the court came down is they said that the states couldn’t carve out exceptions for churches, not at least without rigorously explaining why churches were different and posed a special risk.

        I think the courts were too accommodating to the states, but struck a better balance than Newsome, Sisalak, or Cuomo.

        1. Where the court came down is they said that the states couldn’t carve out exceptions for churches, not at least without rigorously explaining why churches were different and posed a special risk.

          Perhaps that’s where the Court came down in Tandon, but that’s a new doctrine not found in Smith or Lukumi. In Tandon, California banned all in-home conduct, secular and religious alike, involving more than three households (the ban didn’t even mention religious conduct). Since comparable religious and secular conduct were treated the same, the state wins under Lukumi. But in Tandon, the Court argued in-home religious conduct should also be compared to secular conduct at Home Depot and summarily dismissed the state’s arguments for why the two venues are different. The Court did not explain why this comparison was appropriate or what burden the state had to overcome to establish the comparison as inapt. The shadow docket has significantly changed existing doctrine without sufficiently justifying or explaining the new doctrine, which is not surprising given the sparse briefings and arguments.

  6. No decision on Fulton yet, but there was a denial by Gorsuch earlier this week in Denver Bible Church v. Polis.
    This intrigues me.

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