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.
Exactly! In a very different key, it reminds me of issues in the aftermath of 9/11 with respect to so-called "radical Islamism." How does the state respond to radical Salafist jihadists who intend to commit violence when the vast majority of Muslims are not of that school -- but also when the beliefs of those radicals are sincerely held religious beliefs? Ironically, though, (a) the proportion of American Christians who hold radical end-times views is much higher than the proportion of American Muslims who are radical Salafist jihadis (or so I'd wager); (b) that radical stream of American Christianity is actually connected with a core stream of American identity (Hofstader's Paranoid Style; Marsden's Fundamentalism and American Culture; etc); and (c) since the Gulf War and 9/11, that radical end-times stream has become not only more attracted to fascist rhetoric but also more virulently anti-Islamic and thereby hostile to freedom of religious association. So, some of these folks use the tools and themes and law of religious freedom, but without a real broader commitment to freedom and the common good.
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?
Great thoughts, Jon. Paragraphs 1 through 4 of your comments underscore just how localized and fact-specific these inquiries are (factoring in rates of transmission, hospitalization, lethality, vaccination, among many other variables). And you're right that "science say" or "the scientific policy advisors say" can't always be the end of the inquiry because all of these regulations incorporated all kinds of non-science policy considerations and compromises. (Things would have looked much different if this had been, for example, a massive Ebola outbreak.)
A full answer to paragraph 5 is probably too technical for this newsletter, but I think this is Gorsuch (and Alito and Thomas) channeling Tandon as a way to kill Smith without actually overruling Smith. (Alito's concurrence-originally-written-as-a-majority is the more straightforward "overrule Smith" analysis, likely written when he thought there were five votes to do so.) Tandon's key sentence is that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." That's not expressly in Diocese v. Cuomo (which Tandon cites for the proposition), and it is a substantial refashioning of post-Smith free exercise doctrine. The Court should not be making substantive constitutional law in a passing sentence with no analysis of precedent in a per curiam order on a request for emergency injunctive relief. But Gorsuch's Fulton concurrence suggests that three justices are willing to do that.
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.
And further complicated by the deference to sincerity under free exercise doctrine: https://johninazu.substack.com/p/questioning-the-sincerity-of-religious. In my view, that deference is appropriate, but it certainly exacerbates some of the challenges you flag.
Exactly! In a very different key, it reminds me of issues in the aftermath of 9/11 with respect to so-called "radical Islamism." How does the state respond to radical Salafist jihadists who intend to commit violence when the vast majority of Muslims are not of that school -- but also when the beliefs of those radicals are sincerely held religious beliefs? Ironically, though, (a) the proportion of American Christians who hold radical end-times views is much higher than the proportion of American Muslims who are radical Salafist jihadis (or so I'd wager); (b) that radical stream of American Christianity is actually connected with a core stream of American identity (Hofstader's Paranoid Style; Marsden's Fundamentalism and American Culture; etc); and (c) since the Gulf War and 9/11, that radical end-times stream has become not only more attracted to fascist rhetoric but also more virulently anti-Islamic and thereby hostile to freedom of religious association. So, some of these folks use the tools and themes and law of religious freedom, but without a real broader commitment to freedom and the common good.
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?
Great thoughts, Jon. Paragraphs 1 through 4 of your comments underscore just how localized and fact-specific these inquiries are (factoring in rates of transmission, hospitalization, lethality, vaccination, among many other variables). And you're right that "science say" or "the scientific policy advisors say" can't always be the end of the inquiry because all of these regulations incorporated all kinds of non-science policy considerations and compromises. (Things would have looked much different if this had been, for example, a massive Ebola outbreak.)
A full answer to paragraph 5 is probably too technical for this newsletter, but I think this is Gorsuch (and Alito and Thomas) channeling Tandon as a way to kill Smith without actually overruling Smith. (Alito's concurrence-originally-written-as-a-majority is the more straightforward "overrule Smith" analysis, likely written when he thought there were five votes to do so.) Tandon's key sentence is that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." That's not expressly in Diocese v. Cuomo (which Tandon cites for the proposition), and it is a substantial refashioning of post-Smith free exercise doctrine. The Court should not be making substantive constitutional law in a passing sentence with no analysis of precedent in a per curiam order on a request for emergency injunctive relief. But Gorsuch's Fulton concurrence suggests that three justices are willing to do that.