Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses. The State’s spreadsheet summarizing its pandemic rules even assigns places of worship their own row. See App. to Emergency Application for Writ of Injunction... At “Tier 1,” applicable today in most of the State, California forbids any kind of indoor worship. Meanwhile, the State allows most retail operations to proceed indoors with 25% occupancy, and other businesses to operate at 50% occupancy or more.
It is a rudimentary element of justice that like cases should be treated alike. It is the degree of likeness that is not so easy to determine. The three dissenters, the liberal holdouts on the Court, argue in an opinion by Elena Kagan that the court should largely leave that to the elected officials of the states who have primary responsibility for protection of the public health and welfare - the so-called `police power'.
Further, the Associate Justice argues in dissent, Governors have access to and in fact rely on experts - Departments of Health and epidemiologists to calculate risk - always a somewhat imperfect calculus. Judges, lacking such expertise, and insulated from the competing considerations bearing on elected officials, should stay out of this, Kagan unsuccessfully urged.
But "at the margins" as academics are wont to say, surely judges have that power to make their own judgments. Neil Gorsuch has argued that courts should be "liberat(ed)" to make their own judgments rather than defer to federal or state administrative agencies. Such views cast doubt on Alexander Bickel's famous label for the judiciary as "The Least Dangerous Branch".
Whether for purposes of risk-reduction an indoor church service with singing is - in a winnowed congregation - more or less dangerous than shopping at Costco is debatable. But the question presented in my view is whether the any disparity's permissibility should be answered merely by the casual sort of comparison Gorsuch (and the Court majority) find sufficient to trigger strict scrutiny. More apt - as Kagan argues is the traditional "rational basis" test long honored since Jacobson v. Massachusetts - a mandatory vaccination case decided in 1905. For that Courts must weigh the competing views of competent experts, vetted as to admissibility via Federal Evidence Rule 702. Only judgments found arbitrary, not rational should be set aside.
But as Dorf notes, the implications may go even further: if religious activities may be excused from public health strictures why not other activities protected by the First Amendment like live concerts, etc.
Is the court willing to say that religious expression is more shielded than other comparable but secular activities?
- GWC
By Michael C. Dorf (Cornell Law School)
***As CJ Roberts observed in the first California case (what I'll call South Bay I), there are public-health-relevant differences between the venues and activities that are subject to lesser restrictions than are worship services; people don't linger in large numbers in grocery stores, for example. By contrast, venues and activities that pose public health risks comparable to those posed by worship services--concerts, movies, and lectures, for example--are subject to the same or stricter restrictions as religious gatherings. In various of the cases, some Justices have pushed back on that point. In the Nevada case, Justice Alito thought that casinos pose a greater public health risk than do worship services but were subject to looser restrictions; Justice Gorsuch makes a related point about singing in the making of Hollywood movies in South Bay II. For what it's worth, I thought Alito's point about casinos was stronger than Gorsuch's about movie singing, given the safeguards in Hollywood but not in casinos or worship services. However, I'll put that factual detail to one side.
I want to focus on the following point in Justice Kagan's South Bay II dissent:
The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected.
What Justice Kagan means when she says that many of the secular gatherings are also constitutionally protected is that they are also protected by the First Amendment. Political meetings, lectures, movies, plays, and concerts (but presumably not frequenting restaurants, wineries, or bars) are forms of expression protected by the First Amendment. And something very much like the Smith rule applies to protected expression in the same way as it applies to protected free exercise. So, a corporation that produces books and movies can be subject to the same tax, antitrust, and labor laws as a corporation that produces cars and trucks, but a law that singles out expressive activities is subject to strict scrutiny.***
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