Good stuff John. It would be helpful to frame this also in relation to broader issues about public health (e.g. Jacobsen v. Mass during the Spanish Flu up through Obamacare and beyond) and about the way such issues play into themes of some on the right, particularly the religious right. These issues are culturally and legally so much more difficult because millions of Christians genuinely believe public health measures, such as government subsidized health insurance, quarantines, and vaccines, are elements of an end times conspiracy. There's a sense, I think, in which this "breaks" Free Exercise jurisprudence and associational values, or at least stretches them to their limits. The religious beliefs in question identify the government with the Antichrist and can easily pass, as they did for some on Jan. 6, over to insurrection. Yes, exempting liquor stores but not the Eucharist is nuts in the other direction -- but the bigger cultural and legal issue is so much nuttier and more dangerous than that.

Expand full comment

Thanks for sharing this article—I've enjoyed hearing your thoughts on "pandemic law." There were a few thoughts and questions that I had as I read the article (to which you needn't feel compelled to respond!):

1. What, precisely, is the "compelling government interest" at stake? If it's the "spread of a deadly disease" (a standard that probably would not, at this point, cover monkeypox), how "deadly" must it be for the government to act? (Both cold viruses non-pandemic influenza viruses kill people every year, but that fact alone does not seem sufficient to justify extraordinary restrictions.) And if you knew that Covid would, eventually, infect just about everyone (as a headline in The Atlantic published in February 2020 implied), why is preventing its spread a compelling interest at all? Perhaps, then, it's not "preventing the spread of a deadly virus" that is the compelling interest, but slowing the spread in a manner sufficient to protect hospital capacity? However, given that, inter alia, hospitals operate near capacity in the absence of pandemic, that's a far more ambiguous standard.

2. To ensure that the government has selected the "least restrictive means" for achieving a "compelling interest," there's an antecedent evidentiary question. Namely, how ought a court to examine the government's claim that a certain intervention will (or even is reasonably likely to) achieve the given ends? Given that science is, necessarily, an iterative process that makes hypotheses, tests hypotheses, and seeks to replicate results—a process that is not well-suited to giving definitive answers in a compressed time frame, how dispositive ought "the science says" ought to be in making these sorts of judgments?

3. The previous question raises the question of timing. Much of the initial burden on religious exercise were made as "temporary infringements," but morphed into infringements that lasted far longer than many people would have imagined in March 2020. Should the constitutional framework be more flexible on restrictions implemented in haste (say, April 2020) than on restrictions that are much longer lasting (say, restrictions that remain in place in April 2022)?

4. This is, admittedly, a stylized fact pattern where hindsight is 20/20, but suppose the following. In response to the Covid pandemic, State A enacts a series of restrictions severely burdening religious exercise, arguing that such restrictions are the least restrictive means for achieving a compelling government interest. State B enacts no restrictions of any kind. The outcomes for Covid remain the same for both State A and State B at all times thereafter. Does that matter? In other words, is State B's "hands off" approach that results in the same outcome prima facie evidence that State A's restrictions are not the least restrictive means?

5. I found Justice Gorsuch's statement in Fulton (citing Tandon) that "exceptions for one means strict scrutiny for all" to be rather intriguing. It's at the heart of the (unenforced-but-technically-still-on-the-books) NYC vaccine mandate, which exempts professional athletes but not parishioners seeking to volunteer at their houses of worship. On the other hand, given courts' deference to stated religious beliefs, this does seem like a standard that creates opportunities for abuse. Is that really what the First Amendment demands?

Expand full comment