Amicus Curiae Brief — Calvary Chapel Dayton Valley, Petitioner v. Steve Sisolak, Governor of Nevada, et al.

i

No. 20-639

In the

Supreme Court of the United States

CALVARY CHAPEL DAYTON VALLEY,

Petitioner,

v.

STEVE SISOLAK, GOVERNOR OF NEVADA, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE CENTER

FOR CONSTITUTIONAL JURISPRUDENCE

IN SUPPORT OF PETITIONER

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Dale E. Fowler School of Law

Chapman University

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICUS CURIAE.............................1

SUMMARY OF ARGUMENT .....................................1

REASONS FOR GRANTING THE WRIT ..................3

I. The Court should also grant review to clarify

lower court confusion and clearly hold that

Jacobson does not apply to free exercise

challenges of COVID-19 restrictions. .............. 3

A.

Situating Jacobson in its historical

context........................................................... 4

1.

The case itself. ..........................................4

2.

Courts should read Jacobson as it was

understood in 1905—not through a

modern lens. .............................................7

B.

Jacobson and the COVID-19 Pandemic. ..... 8

1.

During the pandemic, courts have

usually misread Jacobson. .......................8

2.

Some jurists have accurately stated

Jacobson’s modern role. ......................... 10

II. This Court Should Grant Review to Decide

that a Claimed Emergency Does Not Suspend

the Constitution .............................................. 14

III.Review Should Be Granted to Decide that the

Level of Deference Granted at the Beginning

of a Claimed Emergency Diminishes with the

Passage of Time .............................................. 17

CONCLUSION .......................................................... 19

ii

TABLE OF AUTHORITIES

Cases

4 Aces Enterprises, LLC v. Edwards, No. CV 20-2150,

2020 WL 4747660 (E.D. La. Aug. 17, 2020)............9

Arizona Free Enter. Club’s Freedom Club PAC v.

Bennett,

564 U.S. 721 (2011)................................................ 18

Arlene’s Flowers v. Washington,

138 S.Ct. 2671 (2018)...............................................1

Bayley’s Campground, Inc. v. Mills,

2020 WL 2791797 (D. Me. May 29, 2020) ...............9

Buck v. Bell,

274 U.S. 200 (1927)..................................................7

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751

(2014)........................................................................1

Calvary Chapel Dayton Valley v. Sisolak,

140 S.Ct. 2603 (2020)....................................... 11, 17

Calvary Chapel Dayton Valley v. Sisolak, No.

19A1070,

2020 WL 4251360 (U.S. July 24, 2020)................. 10

Cantwell v. Connecticut,

310 U.S. 296 (1940)..................................................6

Capitol Hill Baptist Church v. Bowser, No. 20-CV02710 (TNM),

2020 WL 5995126 (D.D.C. Oct. 9, 2020) ....... 5, 8, 13

Cassell v. Snyders, No. 20 C 50153,

2020 WL 2112374 (N.D. Ill. May 3, 2020) ..............9

iii

Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520 (1993)................................................ 19

Citizens United v. Fed. Election Comm’n,

558 U.S. 310 (2010)................................................ 18

City of Boerne v. Flores,

521 U.S. 507 (1997)................................................ 16

City of Richmond v. J. A. Croson Co.,

188 U.S. 469 (1989)................................................ 14

Consol. Edison Co. of New York v. Pub. Serv.

Comm'n of New York,

447 U.S. 530 (1980)................................................ 18

County of Butler v. Wolf, No. 2:20-CV-677,

2020 WL 5510690 (W.D. Pa. Sept. 14, 2020) ........ 12

Denver Bible Church v. Azar, No. 1:20-cv-02362DDD-NRN,

2020 WL 6128994 (Oct. 16, 2020) ................... 13, 14

In re Abbott,

954 F.3d 772 (5th Cir. 2020) ...................................8

Jacobson v. Massachusetts,

197 U.S. 11 (1905).......................................... passim

Korematsu v. United States,

323 U.S. 214 (1944)..................................................1

Lighthouse Fellowship Church v. Northam, No.

2:20CV204,

2020 WL 2110416 (E.D. Va. May 1, 2020) ..............9

Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania,

140 S. Ct. 2367 (2020)............................................ 19

Lochner v. New York,

198 U.S. 45 (1905)....................................................3

iv

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n,

138 S.Ct. 1719 (2018)...............................................1

O’Lone v. Estate of Shabazz,

482 U.S. 342 (1987)................................................ 14

Phillips v. City of New York,

775 F.3d 538 (2d Cir. 2015) ............................... 6, 10

Prince v. Massachusetts,

321 U.S. 158 (1944)..................................................8

Roman Catholic Diocese of Brooklyn v. Cuomo,

-- S.Ct. --, 2020 WL 6948354 (2020) ...... 9, 14, 17, 18

S. Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020)..............................................9

S. Bay United Pentecostal Church v. Newsom,

959 F.3d 938 (9th Cir. 2020) ........................... 10, 12

Savage v. Mills, No. 1:20-CV-00165-LEW,

2020 WL 4572314 (D. Me. Aug. 7, 2020) .............. 13

Shaw v. Hunt,

517 U.S. 899 (1996)................................................ 18

Sherbert v. Verner, 374 U.S. 398 (1963) .....................8

Other Authorities

Blackman, Josh, What Rights are “Essential”? The

1st, 2nd, and 14th Amendments in the Time of

Pandemic, Social Science Research Network (Oct.

9, 2020) .....................................................................8

Bureau of Labor Statistics, Usual Weekly Earnings of

Wage and Salary Workers Third Quarter 2020,

U.S. Department of Labor (Oct. 16, 2020) ..............4

Census of Manufactures: 1905....................................4

v

Madison, J., Memorial and Remonstrance Against

Religious Assessments (1785) .......................... 15, 16

Penn, William, The Great Case for Liberty of

Conscience (1670) in WILLIAM PENN, THE POLITICAL

WRITINGS OF WILLIAM PENN .................................. 16

Wiley, Lindsay F. & Vladeck, Stephen I.,

Coronavirus, Civil Liberties, and the Courts: The

Case Against “Suspending” Judicial Review, 133

Harv. L. Rev. F. 179 (2020) .....................................7

1

INTEREST OF AMICUS CURIAE1

The Center for Constitutional Jurisprudence is the

public interest law arm of the Claremont Institute,

whose stated mission is to restore the principles of the

American founding to their rightful and preeminent

authority in our national life, including the individual

right of Free Exercise of Religion. The Center has previously appeared before this Court as amicus curiae in

several cases addressing these issues, including Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights

Comm’n, 138 S.Ct. 1719 (2018); Arlene’s Flowers v.

Washington, 138 S.Ct. 2671 (2018); and Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682 (2014).

SUMMARY OF ARGUMENT

In his dissenting opinion in Korematsu, Justice

Jackson noted that an unconstitutional emergency order is likely to last only as long as the purported emergency. A judicial opinion that rationalizes such an order, however, creates a principle that “lies about like

a loaded weapon ready for the hand of any authority

that can bring forward a plausible claim of urgent

need.” Korematsu v. United States, 323 U.S. 214, 246

(1944) (Jackson, J., dissenting). In the wake of the

current global pandemic our jurisprudence is now littered with loaded weapons.

Too many lower courts, state and federal, have relied on the century-old decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905) for the proposition that

1 All parties were notified of and have consented to the filing of

this brief. In accordance with Rule 37.6, counsel affirms that no

counsel for any party authored this brief in whole or in part and

that no person or entity other than amicus made a monetary contribution to fund the preparation and submission of this brief.

2

executive officers are entitled to suspend the constitution in response to a claimed emergency. But a

claimed emergency, especially one not involving an attack by foreign actors on United States soil, is not

grounds for suspending the Constitution. The lower

courts have stretched the reasoning of Jacobson wellbeyond its breaking point. This Court should grant

review to put an end to this idea that Jacobson allows

executive officials to ignore the Constitution.

Courts have sufficient tools to decide whether

emergency orders interfere with constitutionally protected liberties without resort to blind deference. This

is especially important where the orders do not result

from the normal democratic procedures but are instead issued by an official claiming to act as both legislator and executive.

While it might make sense to grant some breathing

space for an initial response to what appears to be an

emergency, that deference cannot continue indefinitely. As time goes by, the officials claiming emergency authority to suspend constitutional rights must

be required to present evidence – subjected to normal

judicial procedures allowing for contrary evidence –

that the emergency exists and that the chosen means

of response are necessary to achieve a compelling interest. Review by this Court is urgently required.

3

REASONS FOR GRANTING THE WRIT

I.

The Court should also grant review to clarify lower court confusion and clearly hold

that Jacobson does not apply to free exercise challenges of COVID-19 restrictions.

Long obscure, Jacobson v. Massachusetts, 197 U.S.

11 (1905), upheld against a Due Process Clause challenge the state’s power to fine anyone who refused a

mandatory smallpox vaccination. Since 1905, courts

have sporadically cited Jacobson, mostly in challenges

to vaccination laws, but the case was otherwise generally ignored. Decided the same term as Lochner v.

New York, 198 U.S. 45 (1905), Jacobson is a relic of a

jurisprudence the Supreme Court has long since abandoned.

But this all changed in early 2020.2 Governors

across the country dusted off Jacobson and brought it

back to life to support their lockdown measures, including the Respondent here. Unfortunately, these

states and many courts have grossly misread Jacobson, mistakenly grafting the case onto modern constitutional precedent. Yet Jacobson provides no authority for limiting religious liberty in a pandemic. Jacobson is a due process case from the Lochner era where

the petitioner failed to identify an actual constitutional right the state had infringed. It was pronounced

long before the Bill of Rights were incorporated

2 According to a December 1, 2020 Westlaw search, courts cited

Jacobson v. Massachusetts, 197 U.S. 11 (1905) an average of 6

times per year in its first 115 years of existence. The following

year—this year—courts have cited the case 194 times, a 3224%

increase.

4

against the states or the Court had developed its modern tiers of scrutiny. Jacobson thus has no relevance,

even during a pandemic, to religious liberty claims under the Free Exercise Clause. Further, Jacobson declares that even when exercising police powers in an

emergency, states still are limited by constitutional

rights.

A. Situating Jacobson in its historical context.

1.

The case itself.

Jacobson involved a state law authorizing municipalities to make vaccinations mandatory for anyone

over the age of twenty-one if “necessary for the public

health or safety.” 197 U.S. at 12. While the vaccinations were free, refusal triggered a $5 fine—half a

week’s wages for the average earner in 1905.3 Henning Jacobson was subsequently convicted of refusing

to be vaccinated against smallpox, and he challenged

this conviction. Id. at 13.

This Court upheld his conviction. In so doing, the

Jacobson Court rejected three federal constitutional

challenges to the state law—none of which involved

the Free Exercise Clause. The Court easily batted

down Jacobson’s challenges under the Constitution’s

See Census of Manufactures: 1905, available at https://babel.hathitrust.org/cgi/pt?id=nnc1.cu56779232&view=1up&seq

=14. Half a week’s wages would be almost $500 today. See Bureau of Labor Statistics, Usual Weekly Earnings of Wage and Salary Workers Third Quarter 2020, U.S. Department of Labor (Oct.

16, 2020), https://www.bls.gov/news.release/pdf/wkyeng.pdf (reporting that the “[m]edian weekly earnings of the nation’s 109.7

million full-time wage and salary workers were $994 in the third

quarter of 2020”).

3

5

preamble and the Equal Protection Clause. Id. at 1314, 22, 30. And the Court dispatched with Jacobson’s

due process argument that “a compulsory vaccination

law is unreasonable, arbitrary, and oppressive, and,

therefore, hostile to the inherent right of every freeman to care for his own body and health in such way

as to him seems best.” Id. at 26. The Court declared

that “the liberty secured by the Constitution of the

United States to every person within its jurisdiction

does not import an absolute right in each person to be,

at all times and in all circumstances, wholly freed

from restraint.” Id. The Court did admit that state

power could be “exercised in particular circumstances

and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of

the public, as to authorize or compel the courts to interfere for the protection of such persons.” Id. at 28.

But the Court found that the state law was not arbitrary, rather, it was “justified by the necessities of the

case.” Id.

In recalling what Jacobson did decide, it is valuable to note what it did not. Importantly, Jacobson did

not conclude that the state’s vaccination law overcame

Mr. Jacobson’s religious liberty claims. That’s because there were no such claims before the Court. See

Capitol Hill Baptist Church v. Bowser, No. 20-CV02710 (TNM), 2020 WL 5995126, at *7 (D.D.C. Oct. 9,

2020) (“The unique array of claims before the Jacobson Court . . . included none under the First Amendment.”). While it’s true that there is a solitary passing

reference to religion, this was not a statement on the

Free Exercise Clause, but an abstract reference to liberty in the context of a military draft. Jacobson, 197

U.S. at 29. And it makes perfect sense that Jacobson

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did not raise a federal Free Exercise Clause claim before the U.S. Supreme Court—the clause would not be

incorporated against the states for another three and

a half decades in Cantwell v. Connecticut, 310 U.S.

296 (1940). See Phillips v. City of New York, 775 F.3d

538, 543 (2d Cir. 2015) (“Jacobson did not address the

free exercise of religion because, at the time it was decided, the Free Exercise Clause of the First Amendment had not yet been held to bind the states.”).

What is more, Jacobson did not hold that constitutional rights get less protection during an emergency.

The Court did recognize that “the police power of a

state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” 197 U.S. at 25. And the “mode or manner

in which [public health and safety are to be safeguarded] . . . is within the discretion of the state.” Id.

But then the Court noted an important caveat: that

discretion is “subject . . . to the condition that no rule

prescribed by a state, nor any regulation adopted by a

local governmental agency acting under the sanction

of state legislation, shall contravene the Constitution

of the United States, nor infringe any right granted or

secured by that instrument.” Id. Thus, a health or

safety regulation during an emergency, “even if based

on the acknowledged police powers of a state, must always yield in case of conflict with the exercise by the

general government of any power it possesses under

the Constitution, or with any right which that instrument gives or secures.” Id. (emphasis added). Under

Jacobson, authority to swing the fist of state police

power ends where the nose of constitutional rights begins.

7

2. Courts should read Jacobson as it

was understood in 1905—not through

a modern lens.

Given Jacobson’s birth in the Lochner era, it would

be a mistake to view Jacobson through the lens of the

Court’s modern rights jurisprudence. Courts should

be very wary of looking to Jacobson to decide current

religious liberty claims when it (1) was decided before

the Supreme Court developed its modern constitutional rights jurisprudence; (2) led to some of the

Court’s most repudiated cases4; (3) was decided by the

Lochner Court under a completely different conception of due process that has since been rejected by the

Court5; (4) never addressed a free exercise claim; (5)

was decided decades before the Free Exercise Clause

was incorporated against the states and the modern

free exercise doctrine was developed; and (6) where

the petitioner failed to identify a legitimate constitutional right. See generally Josh Blackman, What

4 One of the Supreme Court’s most infamous and since repudi-

ated cases—Buck v. Bell, wherein the Court upheld the state’s

authority to forcibly sterilize people the state deemed “imbeciles”—directly relied on Jacobson: “The principle that sustains

compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11, 25 S. Ct.

358, 49 L. Ed. 643, 3 Ann. Cas. 765. Three generations of imbeciles are enough.” 274 U.S. 200, 207 (1927).

5 While Jacobson used the term “reasonable,” it was not preform-

ing rational basis analysis. See Lindsay F. Wiley & Stephen I.

Vladeck, Coronavirus, Civil Liberties, and the Courts: The Case

Against “Suspending” Judicial Review, 133 Harv. L. Rev. F. 179,

191 (2020) (“In other words, in a decision that predated even

Lochner (by just under two months), the Supreme Court's reference to what was ‘reasonable’ was far more robust than what we

tend to think of today as ‘minimum rationality’ rational basis review.”).

8

Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic, Social Science Research Network (Oct. 9, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3707739.

Clearly, “[t]here are reasons to think that Jacobson is

not an appropriate lodestar” in a religious liberty case

involving COVID-19 regulations. Capitol Hill Baptist

Church, 2020 WL 5995126, at *7.

True, this Court cited Jacobson in a later religious

liberty case. In Prince v. Massachusetts, the Court

opined that a parent “cannot claim freedom from compulsory vaccination for the child more than for himself

on religious grounds.” 321 U.S. 158, 166 (1944) (citing

Jacobson, 197 U.S. 11). Yet Jacobson cannot be read

to support that proposition since it never addressed

parental or religious rights. Also, this statement is

dicta because Prince didn’t involve compulsory vaccinations. Finally, Prince was decided nearly twenty

years before the Court launched modern free exercise

jurisprudence with its tiers of scrutiny in Sherbert v.

Verner, 374 U.S. 398 (1963), making Prince’s relevance to current free exercise claims minimal at most.

B. Jacobson and the COVID-19 Pandemic.

1. During the pandemic, courts have

usually misread Jacobson.

Unfortunately, most federal courts have not

viewed Jacobson with the jaundiced eye history requires, misreading or overreading it. See, e.g., In re

Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (“Jacobson

instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”);

Lighthouse Fellowship Church v. Northam, No.

2:20CV204, 2020 WL 2110416, at *4 (E.D. Va. May 1,

9

2020) (declaring that Jacobson limits the First

Amendment); Cassell v. Snyders, No. 20 C 50153,

2020 WL 2112374, at *6 (N.D. Ill. May 3, 2020) (“During an epidemic, the Jacobson court explained, the

traditional tiers of constitutional scrutiny do not apply.”). These errors led one court to sardonically observe that “the permissive Jacobson rule floats about

in the air as a rubber stamp for all but the most absurd and egregious restrictions on constitutional liberties, free from the inconvenience of meaningful judicial review.” Bayley’s Campground, Inc. v. Mills,

2020 WL 2791797, *8 (D. Me. May 29, 2020). See also

id. (“This may help explain why the Supreme Court

established the traditional tiers of scrutiny in the

course of the 100 years since Jacobson was decided.”).

Some courts, including the District Court in this

case, have even pointed to Chief Justice Roberts’ concurrence in S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) to justify their misreading.

See, e.g., 4 Aces Enterprises, LLC v. Edwards, No. CV

20-2150, 2020 WL 4747660, at *9 (E.D. La. Aug. 17,

2020) (relying on Roberts’ concurrence in South Bay

to conclude that “[t]raditional doctrine does not control during a pandemic; Jacobson does”). But this

view of Jacobson is a legal fiction. Just not the helpful

kind.

In reality, Chief Justice Roberts cited Jacobson to

observe that “[o]ur Constitution principally entrusts

‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and

protect.’” Id. (quoting Jacobson v., 197 U.S. at 38).

That is as uncontroversial as it is true. See Roman

Catholic Diocese of Brooklyn, New York v. Cuomo, 592

10

U.S. __, No. 20A87, slip op. at 2-3 (Roberts, C.J., dissenting). By constitutional design, the police power—

the power to legislate on issues of health, safety, and

morals—was left with the states and the people (the

Constitution only providing the federal government

with limited, enumerated powers). See also S. Bay

United Pentecostal Church v. Newsom, 959 F.3d 938,

942 (9th Cir. 2020) (Collins, J., dissenting) (“Jacobson

merely rejected what we would now call a ‘substantive

due process’ challenge to a compulsory vaccination requirement, holding that such a mandate ‘was within

the State’s police power.’”) (quoting Phillips, 775 F.3d

at 542).

2. Some jurists have accurately stated

Jacobson’s modern role.

A few clear-eyed federal jurists have seen Jacobson

for what it is—and what it is not. When this case was

previously before the Court and the Court denied the

application with an unsigned, per curiam opinion,

Justices Thomas, Alito, Gorusch, and Kavanaugh dissented. Calvary Chapel Dayton Valley v. Sisolak, No.

19A1070, 2020 WL 4251360 (U.S. July 24, 2020). Justice Alito observed that “it is a mistake to take language in Jacobson as the last word on what the Constitution allows public officials to do during the

COVID–19 pandemic.” Pet. App. 29a (Alito, J., dissenting). Rather, the “[l]anguage in Jacobson must be

read in context, and it is important to keep in mind

that Jacobson primarily involved a substantive due

process challenge to a local ordinance requiring residents to be vaccinated for small pox.” Id. Thus, “[i]t

is a considerable stretch to read the decision as establishing the test to be applied when statewide

measures of indefinite duration are challenged under

11

the First Amendment or other provisions not at issue

in that case.” Id. at 29a-30a. Similarly, in his dissent,

Justice Kavanaugh cited Jacobson merely for the

principle that “courts should be extremely deferential

to the States when considering a substantive due process claim by a secular business that it is being treated

worse than another business.”

Id. at 43a (Kavanaugh, J., dissenting) (emphasis added).

And in Diocese of Brooklyn, Justice Gorsuch likewise viewed Jacobson as inapt for analysis of a free

exercise challenge to COVID-19 restrictions. See slip

op. at 3-6 (Gorsuch, J., concurring). He noted that Jacobson “involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.” Id. at 3. As to the mode of

analysis, he observed that “Jacobson didn’t seek to depart from normal legal rules during a pandemic, and

it supplies no precedent for doing so.” Id. at 4. Regarding the claimed substantive due process right in

Jacobson, Justice Gorsuch noted that “[e]ven if judges

may impose emergency restrictions on rights that

some of them have found hiding in the Constitution’s

penumbras, it does follow that the same fate should

befall the textually explicit right to religious exercise.”

Id. Finally, Justice Gorsuch distinguished the “avoidable and relatively modest” restriction at issue in Jacobson from a “ban [on] all traditional forms of worship . . . whenever the Governor decrees and for as

long as he chooses.” Id. at 4-5. And Justice Gorsuch

concluded that “[n]othing in Jacobson purported to

address, let alone approve, such serious and long-lasting intrusions into settled constitutional rights.” Id.

at 5.

12

Some lower federal judges and courts have also accurately read Jacobson, though they are in the minority—and not a single circuit has correctly read Jacobson in the Free Exercise context. For example, when

South Bay was before the Ninth Circuit, California

contended that Jacobson “extend[s] to the First

Amendment and other constitutional provisions.” S.

Bay, 959 F.3d at 942 (Collins, J., dissenting). But

Judge Collins correctly noted in dissent that

“[n]othing in Jacobson supports the view that an

emergency displaces normal constitutional standards.” Id. Rather, under Jacobson, “an emergency

may justify temporary constraints within those standards [of substantive due process].” Id. Thus, “Jacobson’s deferential standard of review is appropriate in

that limited context [of substantive due process].”

Further, “Jacobson says nothing about what standards would apply to a claim that an emergency measure violates some other, enumerated constitutional

right; on the contrary, Jacobson explicitly states that

other constitutional limitations may continue to constrain government conduct.” Id. So, Judge Collins

rightly concluded, the Plaintiffs’ free exercise claim

should be analyzed under “well-established” standards, not Jacobson. See also County of Butler v. Wolf,

No. 2:20-CV-677, 2020 WL 5510690, *6 (W.D. Pa.

Sept. 14, 2020) (observing that “when Jacobson was

decided,” the “century of development [that] has seen

the creation of tiered levels of scrutiny for constitutional claims” “did not exist”; instead, the Jacobson

Court applied “ordinary constitutional scrutiny . . . to

maintain the independent judiciary’s role as a guarantor of constitutional liberties—even in an emergency”); Savage v. Mills, No. 1:20-CV-00165-LEW,

13

2020 WL 4572314, at *5 (D. Me. Aug. 7, 2020) (rebuffing government arguments that Jacobson was “a de

jure immunity talisman,” or “the Rosetta Stone for

evaluating the merits of a challenge to any COVID19-related government regulation”).

Likewise, in Capital Hill Baptist Church, “the District [of Columbia] urge[d] that Jacobson . . . relaxes

the heavy burden that would normally fall on it.”

2020 WL 5995126, at *7. While noting that courts

“have recently invoked Jacobson when assessing

whether governmental measures in response to the

COVID-19 pandemic infringe on individual rights and

liberties,” the court strongly cautioned that “there are

reasons to think that Jacobson is not an appropriate

lodestar here.” Id. The court then refused to follow Jacobson for a few reasons, including that “Jacobson addressed whether a state law mandating vaccination

violated an individual’s Fourteenth Amendment substantive due process” rights, not any claims “under

the First Amendment.” Id.

Similarly, in Denver Bible Church v. Azar, No.

1:20-cv-02362-DDD-NRN, 2020 WL 6128994 (Oct. 16,

2020), Colorado defended its COVID-19 regulations

regarding churches by “argu[ing] that th[e] court’s

analysis begins and essentially ends with Jacobson.”

Id. at *7. But the court declared that it “cannot accept

the position that the Constitution and the rights it

protects are somehow less important, or that the judicial branch should be less vigilant in enforcing them,

simply because the government is responding to a national emergency. The judiciary’s role may, in fact, be

all the more important in such circumstances.” Id. So

the court concluded that “while an emergency might

provide justification to curtail certain civil rights, that

14

justification must fit within the framework courts use

to evaluate constitutional claims in non-emergent

times.” Id.

This Court should grant review to clarify that Jacobson adds nothing to the analysis of a modern Free

Exercise Clause claim.

II.

This Court Should Grant Review to Decide

that a Claimed Emergency Does Not Suspend the Constitution

It is time for this Court to act and bring to a halt

any notion that a claimed emergency – especially one

not related to an attack by a foreign power – does not

nullify the Constitution. “Blind judicial deference”

has no place in the analysis of constitutional claims.

City of Richmond v. J. A. Croson Co., 188 U.S. 469,

501 (1989); see O’Lone v. Estate of Shabazz, 482 U.S.

342, 357-58 (1987) (Brennan, J., dissenting).

The order under review clearly targets religious

worship. Religious services are specifically listed in

the order and are limited in ways that other gatherings are not. This disparate treatment demonstrates

a burden on the rights of Free Exercise of Religion.

Roman Catholic Diocese of Brooklyn, slip op. at 2-3

(order granting applications for stay). “Because the

challenged restrictions are not “neutral” and of “general applicability,” they must satisfy “strict scrutiny,”

and this means that they must be “narrowly tailored”

to serve a “compelling” state interest.” Id.

The Free Exercise of Religion protected by the

First Amendment reflects a recognition that citizens

owe a higher duty to the Creator that preexists duties

owed to secular society. James Madison articulated

15

the principal religious argument for the right to accommodation of religion in his famous attack on Patrick Henry’s general assessment bill, Memorial and

Remonstrance.

Madison defined religion in that text in the constitutional sense as “the duty we owe to our Creator.” J.

Madison, Memorial and Remonstrance Against Religious Assessments (1785), ¶ 11 reprinted in 5 The

Founders Constitution 83 (Phillip Kurland and Ralph

Lerner, eds.) (Univ. of Chicago Press 1987). Because

beliefs cannot be compelled, he wrote, the “[r]elgion…

of every man must be left to the conviction and conscience of every man; and it is the right of every man

to exercise it, as these may dictate.” Id. According to

Madison, the free exercise of religion is, by its nature,

an inalienable right because a person’s beliefs “cannot

follow the dictates of other men” and because religion

involves a “duty towards the Creator.” Id. He went

on to implicitly express the doctrine of inalienable

rights contained in the Declaration of Independence,

explaining, “This duty [towards the Creator] is precedent both in order of time and in degree of obligation,

to the claims of Civil Society” and, therefore, “in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly

exempt from its cognizance.” Id.

The right to Free Exercise of Religion, Madison

reasoned, precedes civil society and is superior even to

legitimate government. Importantly, taking issue

with Smith in City of Boerne v. Flores, Justice O’Connor pointed out that “Madison did not say that duties

to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to

16

prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate

to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.” City of

Boerne v. Flores, 521 U.S. 507, 561 (1997) (O’Connor,

J., dissenting). The Founders appealed to “the Laws

of Nature and Nature’s God” to justify signing the

Declaration of Independence. Decl. of Independence,

¶ 1, 1 Stat. 1. Free Exercise claims likewise entail duties to a higher authority. Because the Founders operated on the belief that God was real, the consequence of refusing to exempt Free Exercise claimants

from even facially benign laws would have been to unjustly require people of faith to “sin and incur divine

wrath.” William Penn, The Great Case for Liberty of

Conscience (1670) in WILLIAM PENN, THE POLITICAL

WRITINGS OF WILLIAM PENN, introduction and annotations by Andrew R. Murphy (Indianapolis: Liberty

Fund, 2002).

Madison, therefore, did not conceive “of a secular

society in which religious expression is tolerated only

when it does not conflict with a generally applicable

law,” City of Boerne, 521 U.S. at 564 (O’Connor, J., dissenting), but rather he conceived of a society in which

citizens have the individual liberty under the Free Exercise Clause to live out their faith. Madison observed

that a man’s religion “cannot follow the dictates of

other men.” Memorial and Remonstrance, 5 THE

FOUNDERS CONSTITUTION 83. Such trespasses on the

actual Free Exercise of Religion by the majority are

an illegitimate interference with that inalienable

right and would effectively write the Free Exercise

Clause out of the Constitution.

17

The First Amendment protects religious exercise,

not just religious belief. Indeed, a review of the writings of the founders and ratifiers of the Constitution

demonstrate that exercise of religion was meant to be

an unqualified right. At the very least, this Court

must test government limits on religious exercise under the strict scrutiny test.

This Court has “a duty to defend the Constitution,

and even a public health emergency does not absolve

us of that responsibility.” Calvary Chapel Dayton Valley v. Sisolak, 140 S.Ct. 2603, 2604 (2020) (Alito, J.,

dissenting from denial of injunctive relief). The Court

can uphold this duty by application of strict scrutiny

to the challenged regulation. This test gives the Court

all the tools that it needs to review the challenged order. If the Governor can prove that the restrictions at

issue are necessary to achieve a compelling state interest, and are narrowly tailored to accomplish that

goal, then the restrictions will be upheld. As explained in Part III, supra, the type of proof necessary

for showing a compelling interest will necessarily vary

based on the need for intervention at the early stages

of the claimed emergency as opposed to orders issued

months after the claimed emergency was first declared. However, the narrow tailoring analysis will

remain the same as an important check government

power.

III.

Review Should Be Granted to Decide that

the Level of Deference Granted at the Beginning of a Claimed Emergency Diminishes with the Passage of Time

This Court has noted that “[s]temming the spread

of COVID-19 is unquestionably a compelling interest.”

Roman Catholic Diocese of Brooklyn, slip op. at 4. But

18

that is only the beginning of the inquiry under strict

scrutiny. Strict scrutiny requires the government to

prove that the challenged order furthers the compelling interest and is narrowly tailored. Arizona Free

Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S.

721, 734 (2011); Citizens United v. Fed. Election

Comm’n, 558 U.S. 310, 340 (2010).

In the early stages of the pandemic, there was an

understandable willingness on the part of some to defer to orders issued by governors because there was so

little known about the disease. Roman Catholic Diocese of Brooklyn, slip op. at 10 (Gorsuch, J., concurring

(slip op. at 3 of Gorsuch, J. concurrence)). But any

leeway on the measure of proof required to support the

state’s compelling interest has an expiration date.

Once the initial stages of the claimed emergency have

passed, the Court must apply strict scrutiny to edicts

that interfere with religious liberty. Id. That requires

the Governor to prove the necessity of the restrictions.

Strict scrutiny requires proof, not speculation, that

the restriction is necessary to achieve the claimed

compelling interest. See Consol. Edison Co. of New

York v. Pub. Serv. Comm'n of New York, 447 U.S. 530,

543 (1980). This requires a “strong basis in evidence”

that the restriction is necessary to achieve the government’s interest. Shaw v. Hunt, 517 U.S. 899, 909-10

(1996). Necessity in this context requires the government to prove that the challenged edict “would substantially address, if not achieve, the avowed purpose.” Id. at 915.

In Free Exercise cases, such as the instant action,

the government has a particularly high bar to clear in

order to justify its restrictions. Little Sisters of the

Poor Saints Peter & Paul Home v. Pennsylvania, 140

19

S. Ct. 2367, 2392 (2020) (Alito, J., concurring). The

Governor here must prove that he is protecting an interest “of the highest order.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993).

But exempting other activities from the restrictions

imposed on religious worship defeat the Governor’s

claims. “‘[A] law cannot be regarded as protecting an

interest “of the highest order” ... when it leaves appreciable damage to that supposedly vital interest unprohibited.’” Id.; Little Sisters of the Poor, 140 S.Ct. at

2392 (Alito, J., concurring).

The Free Exercise Clause does not require the

Court to ignore the pandemic and it does not deprive

the government of the tools it needs to address the

pandemic. However, blind judicial deference to edicts

issued by governors claiming emergency powers is not

permitted. We are well-past the initial stages of the

pandemic. Sufficient time has elapsed for the governors claiming emergency powers to come forward with

scientific evidence that their edicts are truly necessary to achieve a compelling government interest and

they are narrowly tailored to achieve that interest.

CONCLUSION

Jacobson is a due process case from the Lochner

era where the petitioner failed to identify an actual

constitutional right the state had infringed. It was

pronounced long before the Bill of Rights were incorporated against the states or the Court had developed

its modern tiers of scrutiny. Jacobson thus has no relevance, even during a pandemic, to religious liberty

claims under the Free Exercise Clause. Further, Jacobson declares that even when exercising police pow-

20

ers in an emergency, states are still limited by constitutional rights. The Court should clarify this to provide much-needed guidance to the lower courts.

Searching judicial review is especially important

at this time because the orders at issue in this case,

and similar orders in other states, are not imposed by

the normal democratic process. Instead, governors,

mayors, and local health officials have claimed emergency power to suspend constitutional liberties of

speech, assembly, and, in this case, free exercise of religion. This Court should grant review to decide that

such autocratic exercises of authority are not beyond

the review of the judiciary.

December 2020

Respectfully submitted,

JOHN C. EASTMAN

ANTHONY T. CASO

Counsel of Record

The Claremont Institute’s Center for

Constitutional Jurisprudence

c/o Chapman University Fowler

School of Law

One University Drive

Orange, CA 92866

(877) 855-3330

caso@chapman.edu

Counsel for Amicus Curiae