Sunday, April 11, 2021

Shipwreckedcrew On The SCOTUS' Free Exercise Decision

As most of you will already be aware, on Friday the First Amendment right to the Free Exercise of religion got a boost from the SCOTUS in a 5-4 decision. Shipwreckedcrew has what I consider to be an enlightening article on this decision, which I'll try to summarize for general readership. Here's a link to the article:

What the Supreme Court Did Friday in Reversing the Ninth Circuit in a Religious Freedom Case -- Again

The case in question had to do with California restrictions on in-house religious worship--supposedly put in place to combat Covid. A key to understanding the significance of this decision is the fact that it was NOT formally a decision on the merits of the case. Rather, it was a decision on whether a preliminary injunction should be issued while the case was appealed. The plaintiffs had challenged the CA restrictions in federal district court, where the restrictions were upheld. They then appealed to the 9th Circuit and requested an injunction on the enforcement of the restrictions while the appeal was pending. A three judge panel of the 9th Circuit refused to issue that injunction and the plaintiffs appealed to the SCOTUS--which told the 9th Circuit that they'd got it all wrong and instructed the 9th Circuit to issue the injunction.

SWC makes the following interesting point. There are a number of similar free exercise cases that the SCOTUS has dealt with, but always on the level of preliminary injunctions. The result is that, in SWC's words, there are:

a host of religious freedom matters that are currently the subject of litigation around the country, many of which involve clashes between the constitutionally grounded religious free exercise right, and statutorily based “civil rights.”

In other words, the First Amendment's Free Exercise clause has become a hot button issue in constitutional litigation, with State legislatures increasingly seeking to restrict free exercise in preference to other "civil rights". For example, the "right" to sexual or gender based expression. While those cases may be different in some respects from Covid related "public health" cases, the similarity is that they all impact a fundamental constitutional right--an explicit right, not a "right" legislated by courts from the penumbras of the constitution.

SWC notes that this was not a "typical" 9th Circuit case--the three judges were 1 Bush and 2 Trump appointees. This was, in his opinion, simply a case of these judges being unsure of what rules to follow, given that the SCOTUS has not given very explicit directions in previous decisions. Hinting at intra-SCOTUS disagreements, SWC points out that the five justice majority:

made it clear their patience has run out with the efforts of the California state government’s continued attempts to “write around” the prior decisions of the Court invalidating a variety of restrictions imposed on religious freedom in California, noting this is the fifth time it has taken up decisions from the Ninth Circuit which allowed certain provisions adopted by California to remain in place pending review.

I read that--and my opinion comes free of charge--as meaning that the five justice majority have tired of CJ Roberts' go-slow jurisprudential philosophy.

That suggests that there is now a five justice majority ready to act fairly aggressively in defense of free exercise of religion, which has been under concerted liberal attack. In fact, the majority made no bones about what tack they will take if more cases of this sort come their way. After pointing out that

California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time. 

the Court stated that it's not up to religious people to justify their conduct--California has the burden of explaining why religious worship should be treated more strictly than the cited secular activities:

The State cannot “assume the worst when people go to worship but assume the best when people go to work.”

In their conclusion, the majority pretty much throws down the gauntlet (this reads like it was written by Gorsuch, to me), pretty much telling the 9th Circuit how they expect it to decide on the merits:

Applicants are likely to succeed on the merits of their free exercise claim; they are irreparably harmed by the loss of free exercise rights “for even minimal periods of time”; and the State has not shown that “public health would be imperiled” by employing less restrictive measures. 

That's a pretty broad hint. Further, the SCOTUS--at least the five justice majority--is seriously displeased with California and the 9th Circuit:

This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. It is unsurprising that such litigants are entitled to relief.


They're telling the 9th circuit, This should be a slam dunk for the plaintiffs. Further, the 9th Circuit can probably expect a fast turnaround on similar cases.

California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. ... That standard “is not watered down”; it “really means what it says.”

In other words, "strict scrutiny" really means that the scrutiny must be strict. From earlier in the opinion, here's what "strict scrutiny" should look like--this is what they expect from the 9th Circuit and from every other federal court in the land:

Third, the government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk factors “are always present in worship, or always absent from the other secular activities” the government may allow. Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. 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. 

To speculate a bit on equally broad issues, I wonder is whether this get tough approach when it comes to the First Amendment v. State regulation may presage an openness to reexamining the entire notion of judicial deference to the supposed "expertise" of the administrative state. We know that Gorsuch's views on that subject--and I believe the same applies to Justice Amy--were key to his nomination. In point of fact, all three of the other justices in the majority--Thomas, Alito, and Kavanaugh--seem open to that reexamination to one degree or another. That would be major good news.


  1. I have always wondered how statutory law can supplant constitutional law. I think that Biden’s declaration that no constitutional right is absolute might be a factor in this or a late one at least.

    And, sorry, the yelling of fire in a theater excuse doesn’t fly because people aren’t going stampede out due to such things. Real life just doesn’t work that way due to people generally needing more concrete examples such as smoke, fire, or firemen/police stating the theater needs to be evacuated.

    Didja know that in Texas the police cannot force people out of building due to a bomb scare? Or,?I should say, that’s how we do it. Nope, we notify people and they choose to stay or not. Now, if a bomb is actually located, that’s different, but an anonymous call? Nope.

    The anonymous call is akin to yelling fire in a theater. I am not saying it’s constitutionally protected speech, but the analogy holds no water in the further restrictions of our constitutional rights. The analogy fails due to it being totally different than say ... ohhh ... a tweet by a sitting Republican President who already was found to not be able to ban comments from people due to ... yep ... constitutional issues.

    Yep, I’m no Oliver Wendell Holmes or even a lawyer even though my job has me considering constitutional issues routinely throughout a shift. Yet, even a cursory glance at his thought on this, a thought that is used to this day, which makes it easy to deny our freedom is problematic, putting it mildly.

  2. "Further, the SCOTUS--at least the five justice majority--is seriously displeased with California and the 9th Circuit..."

    For so long as the five justices constitute a majority.

    To my mind, this is exactly what is wrong with any court packing scheme. We are either a nation of laws with a Constitution or a nation of 'who has the most political power'.

    And let's not forget, what goes around comes around.

    1. Yes, and this fits in with, "Epstein did not kill himself " and "Scalia did not die of natural causes. " The Kleptocracy has a long history of intimidating SCOTUS. The Regime won't let SCOTUS threaten any of their programs. Not for long.

      -Minor Fifth