Time to reconsider Jacobson?

Religion continued its losing streak against the COVID-19 pandemic in the U.S. Supreme Court over the weekend, as the court refused to enjoin a Nevada law that restricts in-person church services to no more than 50 people.

The case, Calvary Chapel Dayton Valley v. Steve Sisolak, et al., 20-16169 (July 24, 2020), had appeal. The church in question wanted to hold an in-person service for about 90 people, 50% of its fire code capacity. That is the rule applied to casinos, yet it allows them to admit thousands of customers. If it is safe for the casinos to let thousands of people gamble, drink, and smoke, surely it should be fine for a rural church to host 90 people for a socially-distanced in-person service?

But the coronavirus works in strange ways -- including, apparently, by turning Chief Justice John Roberts into a swing vote who consistently sides with the court's four "liberal" justices to uphold the government's exercise of emergency power. Roberts did that in a California-based religion case in May, South Bay United Pentecostal Church et al. v. Newsom, et al., 2020 DJDAR 4844 (May 22, 2020). He did so again in the Nevada case.

Calvary Chapel should have been easy to decide. After all, as the church noted in its application to the Supreme Court, the order "treat[s] houses of worship far worse than secular places where large, extended, and close gatherings occur day-in-and-day-out." Those activities included not just casinos, Nevada's biggest source of revenue, but movie theaters, restaurants, gyms and wineries. And, like many other local officials, Nevada Gov. Steve Sisolak encouraged Black Lives Matter protestors to gather in large, unrestrained groups. He even participated in one such protest.

The Nevada district court denied the church's motion for a preliminary injunction in June, when the protests were just starting. It rejected the appeal under the First Amendment's free exercise clause because the church could not show that Sisolak's order only "specifically target[s] places of worship" for adverse treatment. According to the district court, so long as the government also treats some secular activities -- like concerts and sporting events -- the same as churches, it does not violate the free exercise clause.

The 9th U.S. Circuit Court of Appeals denied Calvary Chapel's motion for an injunction pending appeal in late June with a three-sentence order that cited South Bay and one other case but which lacked any discussion of the arguments raised by the church. Then the church turned to the Supreme Court, through an emergency application for injunctive relief, the same procedure the church used in South Bay.

As I wrote back in May, that was a bad decision. The Supreme Court rarely grants such applications. And Roberts has worked hard to keep the court's workload down and to keep the court out of disputes that he views as political. The chief justice seems to believe that any dispute related to the coronavirus is a political question that should not be decided by the Supreme Court.

That is a mistake. The "political question" doctrine represents a shift away from the activist judiciary envisioned by the first chief justice, John Marshall, who famously said that it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). Properly applied, the political question doctrine recognizes that some questions are "entrusted to one of the political branches or involve[] no judicially enforceable rights." Vieth v. Jubelirer, 541 U. S. 267, 277 (2004) (plurality opinion). But such cases are rare, existing when the law clearly entrusts final power to the political branches of government (as with the impeachment power) or where the claims alleged lack "judicially discoverable and manageable standards for resolving [them]." Baker v. Carr, 369 U. S. 186, 217 (1962).

That cannot be said of the free exercise claim brought in Calvary Chapel. Courts often decide such claims. And the Supreme Court has developed a robust legal standard for adjudicating them.

Judges often invoke the political question doctrine to avoid deciding cases that involve politically sensitive issues. That may be what Roberts has been thinking of during the coronavirus pandemic. He sees a highly politicized situation, during an election year, and wants to preserve the Supreme Court's integrity by keeping the court out of it. That is not an appropriate application of the political question doctrine but, given Roberts' priorities, it should not surprise anybody.

Moreover, although conservatives are criticizing the chief justice this week for failing to stand up for religious freedom, this is part of a pattern. As Professor Marc O. DeGirolami argued in the Stanford Law & Policy Review in 2015, "the most salient feature of the Roberts Court's first decade of jurisprudence on the religion clauses is its contraction of the constitutional law of religious freedom." Marc O. DeGirolami, "Constitutional Contraction: Religion and the Roberts Court," 26 Stan. Law & Policy Rev. 385, 387 (2015). Indeed, according to Professor DeGirolami, "the [Roberts] Court has been nearly uniformly deferential to government laws and policies" challenged under the First Amendment's religion clauses. "That distinguishes it from its two predecessors -- the Rehnquist and Burger courts -- both of which exercised judicial review of federal, state, and local legislation and administrative practices more regularly." Id.

The coronavirus religion cases have continued that trend. That's unfortunate. Many of the coronavirus related orders are arbitrary, overly broad, and discriminatory. Outside the abortion context, litigants have lost their challenges to the orders because of an arcane Supreme Court decision from 1905, Jacobson v. Massachusetts, which suggested that governments can do whatever they want to protect their people during a health crisis. They will continue losing these cases, at least under federal law, until the Supreme Court limits or overrules Jacobson.

At least four justices understand this. The other four -- Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor -- ought to. After all, they blasted Roberts last year for using the political question doctrine to avoid deciding whether North Carolina's and Maryland's political gerrymandering violated the Constitution. Rucho v. Common Cause, 18-422. Where are they now?

Of course, the churches themselves deserve some of the blame for their losses. They have repeatedly rushed to court, filing emergency motions and emergency appeals, believing that courts would sympathize with their First Amendment rights -- and, perhaps, recognize the government's hypocrisy in stifling religion while favoring activities like gambling, smoking marijuana, and protesting the police. They also may have thought that the coronavirus orders would end this summer, making it pointless to, say, file a petition for a writ of certiorari with the Supreme Court, which only requires four votes to grant and which would guarantee them full briefing and argument this fall.

If so, they miscalculated. The coronavirus orders will not end anytime soon. Anybody who thinks of challenging such an order should recognize that and come up with a better strategy than blindly filing cases in federal court and rushing through emergency applications that are routinely rejected.

Not all is lost, though. Dissenting in Calvary Chapel, Justice Samuel Alito said: "For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public officials must respond quickly and decisively to evolving and uncertain situations." Thus, Alito noted, "at the outset of an emergency, it may be appropriate for courts to tolerate very blunt rules .... But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists. As more medical and scientific evidence becomes available, and as States have time to craft policies in light of that evidence, courts should expect policies that more carefully account for constitutional rights."

This is the best indication yet that at least four justices are ready to reconsider Jacobson and develop a new rule that safeguards constitutional rights, even during a pandemic. Who will take them up on it? 