by Michael C. Dorf
On Thursday evening, I'll be one of three panelists appearing at a webinar hosted by the Federal Bar Council on the topic Religious Freedom 2021: Too Much or Not Enough? I look forward to an interesting exchange with my fellow panelists, attorney Alphonso David of Human Rights Campaign and Notre Dame Law Professor Stephanie Barclay. I hope we can also engage the substantive views of our moderator, Berkeley Law Dean Erwin Chemerinsky. Attendance at the webinar is free and open to the public, but you need to create an account and register in advance--which you can do by following this link.
Federal District Judge Pamela Chen of the EDNY contacted us about participating in the panel a few months ago, so it is a coincidence that it comes close on the heels of the Supreme Court's latest ruling (its fourth in less than a year), in a case that pits religious freedom claims against state governments' efforts to limit the spread of COVID-19. Late last week, the Court invalidated the most restrictive of California's restrictions on in-person indoor gatherings for worship services (but allowed the singing ban to stand for now).
Last Friday's ruling in South Bay United Pentecostal Church v. Newsom (South Bay II) marks the continued erosion of the deference the Court had been granting to state officials. As my co-blogger Prof Eric Segall explains in a post on the American Constitution Society Blog, that erosion is ill-advised as a matter of public health. Moreover, as Prof Leah Litman writes on Take Care, the decision also appears to change the law without acknowledging having done so; for over three decades, the Court's jurisprudence has officially reserved heightened free exercise scrutiny for laws that targeted religion for disadvantageous treatment; yet a majority of justices in South Bay II appear to depart from that approach, applying something much more like a disparate impact test.
One topic for our Thursday panel will be whether the Court should formally overrule Employment Division v. Smith. That case held that no heightened scrutiny applies when laws and policies burden religion but do not target religion for especially unfavorable treatment. I am ambivalent about Smith. In a perfect world, I would not favor the Smith rule. In our actual world, I worry that a majority of the Roberts Court would use a disparate-impact-on-religion rule to gut legal protections for LGBTQ+ persons. In fact, we seem to be barreling headlong into just that post-Smith dystopia even without the case's formal overruling.
In addition to discussing the general direction of the Court's Establishment and Free Exercise Clause jurisprudence, on Thursday evening I plan to address a question that has now arisen in each of the four SCOTUS COVID-Free-Exercise cases: how to measure whether a law or policy disadvantages religion so as to take it outside the Smith rule? Last summer I wrote critically about the approach favored by Justice Kavanaugh and others in a commentary on the Nevada case. I'll build on that commentary and also raise a related question at which Justice Kagan's dissent in South Bay gestures: the relation between religion and non-religious speech.
There is a decent argument to be made that even if the Court were to overrule Smith or has already overruled it sub silentio, it still errs by failing to recognize that the state's interest in public health overrides the interests of individuals in gathering indoors for worship services. That is, admittedly, a difficult judgment to make. All of the justices seem to recognize (or at least to say they recognize) that there is a compelling government interest in public health. But whether the laws and policies at issue in the cases to have thus far come before the Court are narrowly tailored to advance that interest requires the sorts of judgments that none of the justices seems qualified to make (which is one reason Justice Scalia's Smith opinion gave for not having judges make them). In any event, no justice has yet said that they've abandoned Smith. The ostensible basis for the votes of those justices who vote to invalidate public health measures is that the state has singled out religious gatherings for disadvantageous treatment.
That seems mistaken on the face of things. 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.
Simon & Schuster v. Members of NYS Crime Victims Board is a nice example. The Court invalidated a law that required disgorgement of money made from books and movies recounting a crime, even as it made clear that a general law requiring criminals to compensate their victims would of course be constitutional even if applied to a criminal who happened to come by his money as a result of expression. In speech, as in religion under the Smith rule, the government offends the First Amendment by targeting.
But now consider the COVID cases. If, notwithstanding Smith, churches can disregard public health restrictions because some secular activities are (in the view of some of the justices) subject to looser restrictions, then so too, notwithstanding the targeting rule recognized in Simon & Schuster, expressive activities like political meetings, lectures, movies, plays, and concerts should be exempt from COVID restrictions so long as any comparable non-expressive activities are subject only to looser restrictions. And that, to be clear, would be a very bad result as a matter of public health.
Is the result avoidable? I suppose one might say that religious gatherings are special because they involve two rights--expression plus religion. However, as I argue in a forthcoming paper on the intersection of the First and Second Amendments, no sensible version of "constitutional arithmetic" simply adds rights up that way. Moreover, in many other contexts, religious speech ends up being protected and shielded from Establishment Clause objections on the ground that religious speech is relevantly just like other kinds of speech.
The Court's theocrats apparently want to have it both ways. They want support for religion to be shielded from Establishment Clause scrutiny because religious speech is just like any other kind of speech; but then, if they're to distinguish worship services from movies and concerts for public health purposes, they'll have to say that religious speech is special.
Do I think the Court is likely to say that there is a free speech right to indoor political meetings, movie showings, and other expressive activities in the same way that there is apparently such a right to worship services? No. And on public health grounds I would not want the Court to say that. But the failure of any of the concurring Justices in South Bay II to respond to Justice Kagan's point suggests that they have no principled basis for the distinction. Perhaps they'll articulate one when a case involving movies reaches the Court.