The “Essential” Free Exercise Clause

124 Pages Posted: 9 Oct 2020 Last revised: 3 Jun 2021

See all articles by Josh Blackman

Josh Blackman

South Texas College of Law Houston

Date Written: June 2, 2021

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 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.

Keywords: rights, pandemic, COVID-19, religious worship, Jacobson v. Massachusetts, First Amendment, Fourteenth Amendment, Second Amendment

JEL Classification: K10

Suggested Citation

Blackman, Josh, The “Essential” Free Exercise Clause (June 2, 2021). Harvard Journal of Law and Public Policy, Vol. 44, 2021, Liberty & Law Center Research Paper No. 20-04, Available at SSRN: https://ssrn.com/abstract=3707739 or http://dx.doi.org/10.2139/ssrn.3707739

Josh Blackman (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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