Michael P. Maslanka, assistant professor of law, UNT Dallas College of Law.The First Amendment course is in my law school teaching portfolio. So, I read with great interest last Friday’s late-night Supreme Court order denying, by a 5 to 4 vote, injunctive relief to a Southern Californian church to enjoin the state government’s order relating to holding its church services in the age of COVID-19.
Before diving into the deep end of the pool, let’s look at some history. Before the ratification of the First Amendment the states had differing views on protection of religion. In one corner were the states protecting religious worship (the narrow view) and in the other corner were the states protecting religious expression (the expansive view). The second won out and that’s why our First Amendment protects expression. All sorts of expression ended up being protected: from providing for unemployment compensation to an employee whose religion forbade working on a Saturday to allowing an Amish family to keep their children under 16 from compulsory public education. The formula was simple: No compelling reason offered for the rule by the state, then no state regulation. The Supreme Court changed tack somewhat in 1991 and held that if the government’s mere rule is one of “general’ applicability” then only a mere reasoned rationale need be offered for its rule.
What happened when this body of law collided head on with COVID-19? The government sought to protect its citizens by limiting the number of people who could meet with while others sought to preserve First Amendment freedom. The first clash was Maryville Baptist Church v Beshear (the Governor of Kentucky). The Sixth Circuit ruled that the state’s closing down of a drive in Easter church service, with the minister speaking through a megaphone, violated the Free Expression clause because it unduly burdened religious expression. After all, the court asked, what is the difference between people waiting in their car for a liquor store to open (approved) as opposed to waiting in a car in a parking lot for a minister to speak? The answer: none. In a striking note of powerful humility, the court wrote: “But it is not always easy to decide what is Caesar’s and what is the government’s—most assuredly true in the context of a pandemic.” But the court did not, as it recognized, deal with the issue of an in-church service. That issue though would be taken up a few weeks later by the Ninth Circuit.
The Ninth Circuit that veered in a pro-government direction in South Bay United Pentecostal Church v Newsome, where it sided (by a 2=1 vote) with the government restrictions. In a short opinion the majority said that the in person regulations as to churches was not motivated by religious animus nor by selective enforcement. Thus, all were treated alike, churches and others. The majority quoted Justice Robert Jackson that “if a court does not temper its doctrinaire logic with a little practical wisdom, it will convert the Constitutional Bill of Rights into suicide pact.” (The First Amendment brings out colorful metaphors from the judiciary.) The dissent thought the regulations were neither neutral nor of general applicability. After all, the dissent reasoned, religious cites were specifically identified and that the regulations were an amalgam of rules and exceptions and contingencies—a bowl of spaghetti and therefore hardly a rule of general applicability. Next stop; the United States Supreme Court and a rendezvous with Chief Justice John Roberts.
The church asked the United States Supreme Court to reverse and enjoin the government’s rule limiting attendance at an in person church service. It was a late night at the household of the Chief Justice —- the opinion was issued near midnight—-who wrote an opinion (labeled as a concurrence) siding with the Court’s liberal wing denying the relief. The always pragmatic Chief Justice tipped his hand early on in writing that COVID-19 has “no known cure, no effective treatment, and no vaccine.” He then writes that the rule that churches can hold an in person service but limited to 25% of the building capacity or a maximum of 100 people, whichever is lower, is reasonable and that’s all that is need for the rule to pass constitutional muster. Why? Because other facilities not so limited —banks, grocery stores, laundromats —-are dissimilar to a church. My translation: Riddle me this Batman; what does a church have that these three do not? That’s right, a congregation and what is the purpose of a congregation? That’s right, to congregate. A laundromat doesn’t have a large and dedicated following but a church, by its very nature, does. The first has random people coming and going but the second does not. In his last line the Chief Justice takes a shot at those who say that it is “ indisputably clear” that the regulation violates the First Amendment when he writes that this view is “quite improbable.” Justice Kavanaugh filed a dissenting opinion
The rough and tumble of First Amendment litigation. But that’s what the Founders wanted, with their unshakeable belief that the best antidote to bad ideas are better ones. But when all the Justices agree then pure poetry ensues. It is early 1942. The devastating attack on Pearl Harbor is a fresh wound. The West Virginia Board of Education promulgates a seemingly harmless rule that all children must rise in class and salute the American flag. A simple way to instill patriotism when the outcome of the war is far from certain. If the child refuses, then the parents get sent to jail. A child refuses based upon religious beliefs. In a profoundly beautiful opinion —parts of which I sometimes read out loud to the –class—Justice Jackson writes: “if there is any fixed star in our constitutional constellation, it is that no official, high or low, can prescribe what shall be orthodox in politics, nationalism (or) religion” nor be compelled to subscribe to such belief. A good reminder of what we stand for in hard times.
Michael P. Maslanka is an assistant professor of law at UNT Dallas College of Law. His email is michael.maslanka@untdallas.edu.
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