The Volokh Conspiracy
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From Justice William Crain's opinion today (joined by Justices Scott Crichton, James Genovese, Jay McCallum, and Jefferson Hughes III) in State v. Spell, dealing with a prosecution for actions on March 31, 2020; the court basically applies the U.S. Supreme Court's similar decisions in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and Tandon v. Newsom (2021):
The executive orders identify the government interest as the protection of the public "from the threat of COVID-19." More specifically, the gathering limits were imposed "[i]n an effort to reduce and limit the spread of COVID-19 in Louisiana and to preserve the health and safety of all members of the public." Similarly, the stay-at-home order sought to "preserve the public health and safety, and to ensure the healthcare system is capable of serving all citizens in need."
Both orders, however, have numerous exceptions to their mandatory provisions. Order 30, which prohibited gatherings of 50 or more people, imposed no limitations whatsoever on "normal operations at locations like airports, medical facilities, shopping centers or malls, office buildings, factories or manufacturing facilities, or grocery or department stores." Order 33, which prohibited gatherings of 10 or more people, recognized most of the same exceptions in Order 30. The stay-at-home mandate incorporated pages of exceptions for "essential" job functions, numbering well over 100 and ranging from manufacturing animal bedding to working in a company cafeteria. More generally, and similar to the order in Roman Catholic Diocese, the list also includes all jobs supporting or enabling transportation functions, and all workers involved in chemical manufacturing and distribution.
We focus first on the exception for gatherings at "office buildings." The state has not demonstrated a material difference, nor can we discern any, between the risk of transmitting the virus in a gathering of people in an office building and a gathering of people in a church building. Both may involve prolonged gatherings of people in close proximity. Yet under both executive orders, an unlimited number of people were allowed to remain in a single conference room in an office building for an unlimited period of time, all in close proximity, talking, eating, and engaging in any other "normal operations" of the business.
However, if ten of these individuals left the conference room, walked across the street to a church, and entered an otherwise empty sanctuary building for a worship service, they were subject to criminal prosecution for violating Order 33. Similarly, if their job was deemed "essential," their presence in the conference room would fall within an exception to the stay-at-home order; however, their presence in the sanctuary would be criminal. The same observations can be made for gatherings at other exempt venues, such as factories and manufacturing facilities, where people may gather in close proximity to work or socialize for extended periods of time; and airports, where people are funneled into crowded boarding gates where they can wait for hours for a flight.
The state argues the exempt businesses only involve "consumer interaction … of a transient, in-and-out nature, such as Walmart, Target and Home Depot, activities posing markedly different risks from the extended more densely packed environments of churches." The state points to no evidence in the record proving that someone shopping in a crowded retail store for 45 minutes is less exposed to the virus than someone safely distanced, but attending church for the same amount of time. Even assuming that to be the case, there is nothing transitory about prolonged meetings in an office building, working a shift in a factory, or waiting on a flight in an airport.
The state points out the executive orders treat religious organizations more favorably than many similar secular businesses, such as restaurants and cafes, which were barred from allowing any on-premises consumption of food or beverages; and casinos, video poker establishments, movie theaters, bars, bowling alleys, and fitness centers, which were closed completely. However, "[i]t is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue." Strict scrutiny applies when a government regulation treats any comparable secular activity more favorably than religious exercise….
The defendant does not argue he is "a law unto himself" or the executive orders violate "his own standards." What defendant seeks—and what our Constitution ensures—is that his religious activities be treated no differently than comparable secular activities. Disparate treatment implicates the Free Exercise Clause. The state's example illustrates the point. While the defendant and his church must comply with building codes and zoning laws, those same laws apply equally to office buildings, factories, manufacturing facilities, and airports. Building codes and zoning laws, unlike the executive orders at issue, do not exclude secular facilities from regulation. We interpret Pastor Spell's request not as one for special treatment, but for equal treatment….
Application of Strict Scrutiny Standard
Strict scrutiny is the most rigorous test for determining a law's constitutionality. Government infringement of fundamental rights survives strict scrutiny only if the state proves its action (1) serves a compelling government interest, and (2) is narrowly tailored to serve that compelling interest.
Reducing the spread of COVID-19 is a compelling government interest. Nevertheless, the state must prove the prohibitions in Orders 30 and 33 are narrowly tailored to serve that compelling interest. To be narrowly tailored, the law must be the least restrictive means available to achieve the compelling state interest. To meet this burden, the state must do more than assert that certain risk factors are always present in worship, or always absent from the permitted secular activities. Instead, narrow tailoring requires the government to show measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID-19. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too….
The state … maintains a lesser standard of scrutiny or proof should apply given the dire and uncertain circumstances when Orders 30 and 33 were issued. The state emphasizes the orders were promulgated "when the pandemic was … in its earliest, most uncertain stages, [and] Louisiana was one of the virus hotspots." At that time, "there was no known cure, no universal or even widely-accepted effective treatment, and no vaccine for COVID-19." As a consequence, the state argues "greater leniency and deference" should be afforded to state officials in the early stages of the pandemic. On this basis, the state distinguishes the present case from Tandon and Roman Catholic Diocese, which were decided "many months after [the defendant] was served the misdemeanor summons" and allegedly under "[v]astly different circumstances." …
We agree that state officials acting on limited information early in the pandemic may have instituted "blunt rules" that were not "precisely tailored" or failed to "draw fine distinctions." The application of such blunt measures, although later shown to be overly broad as more expertise is gained, should be judged by the information available to state officials when the orders were issued. Reasonable reliance on an initial scientific consensus, even if later proved to be incorrect, can be relevant in determining whether the government action was "narrowly tailored" based on the information available at the time.
Here, the state has not identified any such information, or lack thereof, bearing on the decision to grant preferential treatment to secular gatherings while denying that treatment to religious gatherings. Orders 30 and 33 expressly recognize the "ability" and "propensity" of "the COVID-19 virus to spread via personal interactions." The risk of spreading the virus from personal interactions, as the orders confirm, was well known at that time.
The evidentiary record is devoid of proof that in March of 2020 public health officials had information indicating unlimited personal interactions at gatherings in secular venues like office buildings and airports created less risk of virus transmission than such interactions at gatherings in a church building. In fact, the orders do not prohibit the continuation of a prepandemic routine of an unlimited number of co-workers gathering around a conference table in an office building for prayer, Bible study, and worship. Those religious exercises are prohibited only if they occur in a church building. Order 33 also allows unlimited persons to be transported to and from church but prohibits unlimited attendance and gathering at church. The state's disparate treatment of religious gatherings is simply not supported by any evidence.
It is also difficult to characterize these orders, one that allows for over 100 exemptions, as "blunt" or lacking "fine distinctions." Both orders crafted exemptions for a multitude of secular activities. While every exempt job is important, the state offers no explanation for attributing less importance to the fundamental right to exercise one's religion. Our fundamental constitutional rights are not so numerous to prevent their consideration when constructing restrictions. The state must be sensitive to their possible infringement….
Justice Scott Crichton joined the majority but added:
I write separately to highlight that while the issue presented is substantial and thus warrants this Court's attention, a better-developed record would have aided our review of this matter significantly. Instead, the Court was required to take judicial notice of key issues before us, including whether the state's interest was compelling….
It is undisputed (and, again, judicial notice may be taken of the fact) that the capacity of defendant's church permits hundreds of people to gather outside of the pandemic restrictions. The state has failed to show that its compelling interest to be achieved through the emergency orders, which limit gatherings to 10 or 50, respectively, could not be achieved through less restrictive means such as tying the gathering limitations to defendant's church capacity [and thus presumably allowing suitably socially distanced gatherings -EV]….
While I note the foregoing concerns respecting the failure of both parties' counsel to develop the record, I agree the state ultimately failed to meet its burden to prove the emergency proclamations infringed on defendant's religious liberty with the least restrictive means.
Chief Justice John Weimer, joined by Justice Piper Griffin, dissented:
In the absence of an evidentiary record, the majority opinion takes the position that if any exceptions whatsoever were carved out from the orders, then strict scrutiny is warranted, and it was the State's burden to establish that the orders were narrowly tailored. However, this position ignores the circumstances under which the orders were issued and, instead, holds the emergency orders to a standard of scrutiny that has thus far only been applied by the Supreme Court at a much later stage in the pandemic and at a time with much greater evidentiary knowledge….
Similarly, in furtherance of the argument that the emergency orders were not neutral and of general applicability so as to require a strict scrutiny analysis, no evidence as to the capacity of the defendant's church and the particular activities conducted therein and as to the capacities and activities permitted at the essential businesses that were excluded from the emergency orders was introduced. Rather, arguments that secular activities were treated more favorably was just that—arguments void of any factual support.
As demonstrated, the proper application of the law is contingent on facts that are missing from this record, necessitating, in the interests of justice, a remand to allow the parties to develop a factual record in the district court. Until the facts are developed, the law cannot be accurately applied….