THE "ESSENTIAL" FREE EXERCISE CLAUSE.

• Author: Blackman, Josh

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.

INTRODUCTION I. PHASE 1: THE CIRCUITS SPLIT IN THE EARLY DAYS OF THE PANDEMIC A. Prohibitions on "Non-Essential" Activities During "Marpril" 2020 B. COVID-19 restrictions on Houses of Worship did not neatly fit into the Court's Free Exercise Clause jurisprudence C. Sixth Circuit: Maryville Baptist Church v. Beshear D. Seventh Circuit: Elim Romanian Pentecostal Church v. Pritzker I II. PHASE 2: THE CHIEF JUSTICE'S SOUTH BAY STANDARD A. South Bay United Pentecostal Church v. Newsom B. Seventh Circuit: Elim Romanian Pentecostal Church v. Pritzker II C. The Chief Justice's unexpected superprecedent from the Shadow Docket III. PHASE 3: CALVARY CHAPEL AND THE "MOST-FAVORED" RIGHT A. Lower Court proceedings in Calvary Chapel B. The Supreme Court denies injunctive relief in Calvary Chapel C. Justice Alito's dissent D. Justice Gorsuch's dissent E. Justice Kavanaugh's dissent 1. Four categories of law that favor or disfavor religion 2. Calvary Chapel and Smith 3. The Calvary Chapel Two-Step 4. The Calvary Chapel framework as applied to the Nevada directives IV. PHASE 4: THE ROMAN CATHOLIC DIOCESE OF BROOKLYN TURNS THE TIDE A. Governor Cuomo's Cluster Action Initiative B. The New Roberts Court in Red November C. The Per Curiam Majority Opinion 1. New York's regulations were not "neutral" 2. The Court reviewed New York's orders with strict scrutiny 3. The directives inflicted irreparable harm 4. An injunction was in the public interest 5. Justice Gorsuch's concurrence D. Justice Kavanaugh's concurrence E. Justice Sotomayor's dissent F. Equitable dissents from Chief Justice Roberts and Justice Breyer G. The Majority declined to consider Agudath Israel's targeting claim V. PHASE 5: THE AFTERMATH OF ROMAN CATHOLIC DIOCESE A. The Advent after Roman Catholic Diocese 1. Harvest Rock II 2. High Plains Harvest Church and Robinson 3. Danville Christian Academy B. The return of South Bay II and Harvest Rock II 1. Harvest Rock II district court proceedings 2. Harvest Rock II before the Ninth Circuit 3. Harvest Rock II before the Supreme Court C. Gateway City Church v. Newsom D. Tandon v. Newsom 1. Tandon District Court proceedings 2. Tandon before the Ninth Circuit 3. Tandon rockets through the shadow docket 4. The Tandon per curiam opinion 5. Justice Kagan's Tandon dissent VI. PHASE VI: THE PANDEMIC WANES, THE SEPARATION OF POWERS ARE RESTORED A. Which branch of government decides during the pandemic? B. New York and other states reclaim power from the governors C. How legislatures should respond to COVID-19 CONCLUSION INTRODUCTION

In the span of a year, the coronavirus disease 2019 (COVID-19) would affect every corner of the globe. In December 2019, COVID-19 was identified in Wuhan, China. (1) The first known transmission in the United States occurred in mid-January 2020. (2) On January 31, the United States declared a public health emergency, and placed restrictions on flights from China. (3) By February 6, the first person in America died from COVID-19. (4) On March 11, the World Health Organization declared a pandemic. (5) On March 13, a national emergency was declared. (6) By the end of March, there were confirmed cases in all fifty states, in the District of Columbia, and in the federal territories. (7) By the end of April, there were more than a million confirmed cases nationwide. (8)

During this period, local governments were confronted with difficult choices about how to respond to the evolving pandemic. In short order, most of the country was placed under an unprecedented lockdown. On March 15, 2020, New York City public schools were shuttered. (9) On March 17, Virginia banned public gatherings of more than ten people. (10) That same day, Ohio postponed all elective surgeries. (11) On March 19, California issued a statewide stay-at-home order. (12) On March 20, New York ordered that nonessential businesses must close to the public. (13) Essential businesses, however, could remain open.

In rapid succession, most states took similar measures. But some states, with different priorities, approached their lockdowns very differently. Most of these decisions had little bearing on constitutional law. Michigan, for example, deemed hardware stores essential, but prohibited those stores from selling paint or mulch. (14) These classifications were unreasonable but were not susceptible to a constitutional challenge under current doctrine.

Other lockdown measures, however, ran headlong into the Constitution. Many states restricted the size of non-essential public gatherings to promote social distancing. Some of these orders limited how people of faith could assemble--either directly or indirectly. Different states drew different lines. In Texas, for example, houses of worship were exempt from limits on public gatherings. (15) Other states went in the opposite direction. Nevada deemed houses of worship as non-essential, and subjected them to stringent attendance requirements. But essential casinos were allowed to operate at fifty percent capacity, and could welcome guests by the thousands. (16) Nevada 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. But these disputes differed from the usual First Amendment cases on the Supreme Court's docket. Long before the pandemic, governments burdened--directly or indirectly--the free exercise of religion in four general ways. First, states prohibited specific religious practices. Second, states targeted specific faiths for disparate treatment. Third, states conditioned the receipt of benefits on compelling people to engage in activity that is forbidden by their religions. Fourth, states compelled people to engage in activities prohibited by their faiths. During the pandemic, however, the novel restrictions imposed on the free exercise of religion did not fit any of these molds.

This Article provides an early look at how the courts have interpreted the "essential" Free Exercise Clause during the pandemic. This...