Amicus Curiae Brief — Agudath Israel of America, et al., Applicants v. Andrew M. Cuomo, Governor of New York

No. 20-A90

IN THE

Supreme Court of the United States

___________

AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH

ISRAEL OF MADISON, RABBI YISROEL REISMAN, AND STEVEN SAPHIRSTEIN,

Applicants,

v.

ANDREW M. CUOMO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF NEW YORK,

_________________________________

Respondent.

On Emergency Application for Writ of Injunction to the Honorable Sonia

Sotomayor, Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Second Circuit

_________________________________

MOTION BY THE ROMAN CATHOLIC ARCHDIOCESE OF SAINT PAUL

AND MINNEAPOLIS, THE ROMAN CATHOLIC DIOCESE OF MADISON,

SAMUEL A. FRYER YAVNEH ACADEMY, MONTEBELLO CHRISTIAN

SCHOOL, AND SAINT JOSEPH ACADEMY FOR LEAVE TO (1) FILE THE

ATTACHED AMICUS CURIAE BRIEF IN SUPPORT OF APPLICANTS, AND

(2) TO DO SO WITHOUT TEN DAYS’ ADVANCE NOTICE TO THE PARTIES

_________________________________

MICHAEL A. HELFAND

PEPPERDINE CARUSO SCHOOL OF LAW*

24255 PACIFIC COAST HIGHWAY

MALIBU, CA 90263

(310) 506-4611

MORGAN A. PINO

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

(212) 839-5300

GORDON D. TODD

Counsel of Record

DINO L. LAVERGHETTA

LUCAS W.E. CROSLOW

CHRISTOPHER S. ROSS

ROBIN W. CLEARY

MACKENZI J.S. EHRETT

CODY L. REAVES

BROOKE E. BOYD

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

(202) 736-8000

Counsel for Movants

* Institutional affiliation listed for identification purposes only

Proposed amici curiae the Roman Catholic Archdiocese of Saint Paul and Minneapolis, the Roman Catholic Diocese of Madison, Samuel A. Fryer Yavneh Academy,

Montebello Christian School, and Saint Joseph Academy (collectively “amici”) respectfully move the Court for leave to file an amicus curiae brief in support of Applicants’ Emergency Application for Writ of Injunction and to do so without 10 days’

advance notice to the parties.

Given the expedited briefing schedule set by the Court, it was not feasible to

give 10 days’ notice as ordinarily required by Rule 37.2(a). Applicants have consented

to the filing of this brief without such notice. Respondent has taken no position on

the filing of this brief.

Proposed amici are nonprofit organizations that have no parent corporations

and that are not owned, in whole or in part, by any publicly held corporation.1

Interest of the Amici Curiae and Summary of Brief

Amici are churches and religious schools whose religious liberties and practices

have been treated unequally by COVID-19-related restrictions. During the past year,

each amicus had to sue or threaten to sue its state or local government to vindicate

its constitutional right to the free exercise of religion, and each remains subject to the

risk of renewed discrimination.

Amici understand the real and irreparable constitutional and religious injuries

that Applicants are experiencing and will continue to experience if this Court does

1 No counsel for a party authored this motion or the proposed amicus brief in whole or in part, and no

person other than amici, their members, or their counsel made a monetary contribution to fund the

motion’s or brief’s preparation or submission.

1

not step in to enforce Applicants’ most cherished freedoms. Amici submit this brief

to illustrate for the Court the pervasive, systematic, and nationwide extent of antireligious government actions being taken in the name of public health and in misguided

reliance upon this Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

In Minnesota, the Archdiocese of Saint Paul and Minneapolis was forced to

limit its religious gatherings to ten persons or fewer while thousands were allowed to

congregate in malls, restaurants, and bars. Religious worship was singled out by

Minnesota leaders for particular disparate treatment without any basis in law or science. In Wisconsin, the Diocese of Madison was not allowed to welcome more than

50 individuals at any Mass, while trampoline parks and bowling alleys were specifically given permission to operate beyond that cap, under rules adopted at the behest

of opponents of organized religion. In California, Yavneh Hebrew Academy, Montebello Christian School, and Saint Joseph Academy were all prohibited from conducting in-person religious education, while tens of thousands of secular tutoring and enrichment centers, education and athletic camps, and childcare facilities were permitted to resume in-person gathering and instruction under the state’s discriminatory

regulations.

During these periods of religious deprivation, proposed amici were unconstitutionally denied their most cherished rights and left unable to perform their core religious obligations. Houses of worship, religious schools, and religious organizations

around the country should not have to fight for their rights piecemeal every time a

local official decides to privilege secular activities during the COVID-19 pandemic or

2

any other emergency.

Where the public health need is so dire that draconian

measures are called for, such measures must be “applicable equally to all in like condition.” Jacobson, 197 U.S. at 30–31. Where burdens are not levied alike, they may

not be imposed so as to burden core rights and disfavor the free exercise of religion.

In this breach, Courts must be particularly vigilant to protect fundamental rights.

For the foregoing reasons, proposed amici respectfully request that the Court

grant this motion for leave to file the attached proposed amicus brief and accept it in

the format and at the time submitted.

Respectfully submitted,

/s/ Gordon D. Todd

GORDON D. TODD

Counsel of Record

DINO L. LAVERGHETTA

LUCAS W.E. CROSLOW

CHRISTOPHER S. ROSS

ROBIN W. CLEARY

MACKENZI J.S. EHRETT

CODY L. REAVES

BROOKE E. BOYD

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

(202) 736-8000

MICHAEL A. HELFAND

PEPPERDINE CARUSO SCHOOL OF LAW*

24255 PACIFIC COAST HIGHWAY

MALIBU, CA 90263

(310) 506-4611

MORGAN A. PINO

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

(212) 839-5300

Counsel for Movants

*Institutional affiliation listed for identification purposes only

3

No. 20-A90

IN THE

Supreme Court of the United States

___________

AGUDATH ISRAEL OF AMERICA, AGUDATH ISRAEL OF KEW GARDEN HILLS, AGUDATH

ISRAEL OF MADISON, RABBI YISROEL REISMAN, AND STEVEN SAPHIRSTEIN,

Applicants,

v.

ANDREW M. CUOMO, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF NEW YORK,

_________________________________

Respondent.

On Emergency Application for Writ of Injunction to the Honorable Sonia

Sotomayor, Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Second Circuit

_________________________________

BRIEF OF AMICUS CURIAE THE ROMAN CATHOLIC

ARCHDIOCESE OF SAINT PAUL AND MINNEAPOLIS, THE ROMAN

CATHOLIC DIOCESE OF MADISON, SAMUEL A. FRYER YAVNEH

ACADEMY, MONTEBELLO CHRISTIAN SCHOOL,

AND SAINT JOSEPH ACADEMY IN SUPPORT OF APPLICANTS

_________________________________

MICHAEL A. HELFAND

PEPPERDINE CARUSO SCHOOL OF LAW*

24255 PACIFIC COAST HIGHWAY

MALIBU, CA 90263

(310) 506-4611

MORGAN A. PINO

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

(212) 839-5300

GORDON D. TODD

Counsel of Record

DINO L. LAVERGHETTA

LUCAS W.E. CROSLOW

CHRISTOPHER S. ROSS

ROBIN W. CLEARY

MACKENZI J.S. EHRETT

CODY L. REAVES

BROOKE E. BOYD

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

(202) 736-8000

Counsel for Amici Curiae

*Institutional affiliation listed for identification purposes only

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE ...................................................................................................1

SUMMARY OF ARGUMENT .......................................................................................................2

SUMMARY OF ARGUMENT .......................................................................................................5

I. Jacobson v. Massachusetts does not authorize violations of the Bill of Rights or alter the federal courts’ duty to scrutinize government actions that burden religious freedom. .............7

II. Jacobson is nevertheless being used to justify severe infringements on religious freedoms

throughout the Nation ........................................................................................................12

A. Minnesota relied on Jacobson to justify its months-long prohibition of public worship, while

permitting shopping malls and restaurants to operate........................................................13

B. In the name of public health and under pressure from antireligion activists, the City of Madison and Dane County, Wisconsin likewise prohibited public worship for months, while

permitting retail stores, restaurants, and office buildings to operate, and approving of

mass protests ......................................................................................................................16

C. California relied on Jacobson to justify its months-long prohibition of in-person religious education, while permitting camps and daycares to operate in school buildings ....................19

D. The constitutional and religious injuries endured by Amici have been replicated across the

Nation by states relying on Jacobson and the need to protect public health......................21

CONCLUSION ..............................................................................................................................24

i

TABLE OF AUTHORITIES

Page(s)

Cases

Adams & Boyle, P.C. v. Slatery,

956 F.3d 913 (6th Cir. 2020), petition for cert. filed, No. 20-482 (U.S.

Oct. 14, 2020) .................................................................................................... 11, 12

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) .................................................................................................. 6

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ............................................................................................ 23

Capitol Hill Baptist Church v. Bowser,

No. 20-cv-2710 (TNM), 2020 WL 5995126 (D.D.C. Oct. 9, 2020) ................... 12, 23

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

508 U.S. 520 (1993) ............................................................................................ 9, 10

Cty. of Butler v. Wolf,

No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020)............................ 12

Denver Bible Church v. Azar,

2020 WL 6128994 (D. Colo. Oct. 15, 2020) ............................................................ 23

Dred Scott v. Sandford,

60 U.S. (19 How.) 393 (1857), superseded by constitutional

amendment, U.S. Const. amend. XIV ...................................................................... 5

Emp’t Div., Dep’t of Human Res. v. Smith,

494 U.S. 872 (1990) ................................................................................................ 11

First Baptist Church v. Kelly,

455 F. Supp. 3d 1078 (D. Kan. 2020) ............................................................... 12, 22

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) .................................................................................................. 7

Harvest Rock Church, Inc. v. Newsom,

977 F.3d 728 (9th Cir. 2020) .................................................................................... 8

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ................................................................................................ 1, 9

ii

Korematsu v. United States,

323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S. Ct. 2392

(2018) ........................................................................................................................ 5

Maryville Baptist Church, Inc. v. Beshear,

957 F.3d 610 (6th Cir. 2020) .............................................................................. 7, 22

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ............................................................................................ 10

On Fire Christian Ctr., Inc. v. Fischer,

453 F. Supp. 3d 901 (W.D. Ky. 2020) ..................................................................... 22

Our Lady of Guadalupe Sch. v. Morrissey-Berru,

140 S. Ct. 2049 (2020) .............................................................................................. 6

Robinson v. Attorney Gen.,

957 F.3d 1171 (11th Cir. 2020) .............................................................................. 11

Rumsfeld v. Padilla,

542 U.S. 426 (2004) .................................................................................................. 6

Soos v. Cuomo,

No. 1:20-cv-651 (GLS), 2020 WL 3488742 (N.D.N.Y. June 26, 2020),

appeal docketed, No. 20-2418 (2d Cir. July 30, 2020) ..................................... 12, 24

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) .............................................................................................. 8

Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear,

459 F. Supp. 3d 847 (E.D. Ky. 2020)...................................................................... 12

Trump v. Hawaii,

138 S. Ct. 2392 (2018) .............................................................................................. 5

Other Authorities

After Peaceful Afternoon, Protests Escalating in Madison, WAOW TV-9

(May 30, 2020), https://waow.com/2020/05/30/after-peacefulafternoon-protests-escalating-in-madison/ ............................................................ 19

Robert Bolt, A Man for All Seasons (1st Vintage international ed. 1990)

(1960), viewable at

https://www.youtube.com/watch?v=d9rjGTOA2NA (Columbia

Pictures 1966) ......................................................................................................... 25

iii

Anthony Gockowski, Twin Cities Mayors Don’t Want to Let Churches

Reopen, Archbishop Hits Back, Minn. Sun (May 26, 2020),

https://theminnesotasun.com/2020/05/26/twin-cities-mayors-dontwant-to-let-churches-reopen-archbishop-hits-back/.............................................. 16

Cal. Dep’t of Pub. Health, COVID-19 Industry Guidance: Family

Entertainment Centers (Oct. 20, 2020), https://bit.ly/3ljEp4o............................... 21

Cal. Dep’t of Pub. Health, COVID-19 Interim Guidance: Youth Sports

(Aug. 3, 2020), https://bit.ly/2Eh1mVu .................................................................. 21

Cal. Dep’t of Pub. Health, Guidance Related to Cohorts (Sept. 4, 2020),

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID19/small-groups-child-youth.aspx .......................................................................... 20

Cal. Dep’t of Pub. Health, Providing Targeted, Specialized Support and

Services at School (updated Sept. 4, 2020), https://bit.ly/2ZRotNQ ..................... 20

Catechism of the Catholic Church ................................................................................. 6

Exec. Order No. N-33-20 (Mar. 19, 2020), https://bit.ly/3arL6fM .............................. 20

Marcus Tullius Cicero, Pro Milone (52 BC) .................................................................. 5

May 19, 2020 letter from Annie Laurie Gaylor & Dan Barker, CoPresidents, Freedom from Religion Foundation, to Janel Heinrich,

Director, Public Health Madison & Dane County,

https://bit.ly/3cCqd0V ............................................................................................. 17

Minn. Dep’t of Health, Guidance for Faith-Based Communities

Considering In-Person Services (May 13, 2020) .................................................... 13

Minn. Exec. Order No. 20-56 (May 13, 2020),

https://www.leg.mn.gov/archive/execorders/20-56.pdf .............................. 13, 14, 15

Minnesota’s Stay Safe Plan, Minn. COVID-19 Response,

https://mn.gov/covid19/for-minnesotans/stay-safe-mn/stay-safeplan.jsp (last updated Nov. 10, 2020) .................................................................... 14

Katy Murphy, Shadow Schools? Class Is in Session — at the YMCA

and Roller Rink, Politico (Aug. 7, 2020), https://politi.co/2QiLnIJ ....................... 21

PHMDC Emergency Order 1 (May 13, 2020) ............................................................. 17

PHMDC Emergency Order No. 3 (May 22, 2020),

https://publichealthmdc.com/documents/2020-05-22_Order_3.pdf ................ 17, 18

iv

PHMDC, Forward Dane: Phased Reopening Plan for Dane County

During the COVID-19 Pandemic (May 18, 2020) ............................................ 17, 18

PHMDC, Forward Dane Version 2: Phased Reopening Plan for Dane

County During the COVID-19 Pandemic (May 22, 2020) ............................... 17, 18

Proclamation of a State of Emergency (Mar. 4, 2020),

https://bit.ly/31ZDbTj ............................................................................................. 20

Sonja Sharp, A Loophole Is Allowing Thousands of California Students

to Use Pandemic-Shuttered Classrooms, L.A. Times (Aug. 22, 2020),

https://lat.ms/2Qmfu25 .......................................................................................... 21

US coronavirus: Fema Official Says Masks and Gloves Are on the Way

to Hospitals – as It Happened, Guardian (Apr 5, 2020, 11:22 AM),

https://www.theguardian.com/world/live/2020/apr/05/coronavirusus-deaths-trump-latest-news-updates?page=with:block5e8a02c58f080bdb9f5349f3#liveblog-navigation .................................................... 5

v

INTERESTS OF AMICI CURIAE1

The Roman Catholic Archdiocese of Saint Paul and Minneapolis, the Roman

Catholic Diocese of Madison, Samuel A. Fryer Yavneh Academy, Montebello Christian School, and Saint Joseph Academy (collectively, “amici”) are churches and religious schools who have been injured by COVID-19-related restrictions that singled

out and treated religious worship and religious association disparately from similarly

situated secular activities. Each amicus had to engage counsel and sue or threaten

to sue its state or local government to vindicate its constitutional right to free exercise

of religion. Each was successful in rolling back the discrimination it faced, to a point,

but each remains subject to the specter of renewed discrimination as public officials

cast about for gatherings and activities they perceive as “low value” or having minimal economic impact that may be curtailed or banned in the name of “slowing the

spread” of the novel coronavirus.

Amici understand the real and irreparable constitutional and religious injuries

that Applicants are experiencing and will continue to experience if this Court does

not step in to protect Applicants’ most cherished freedoms. Amici submit this brief

to illustrate for the Court the pervasive, systematic, and nationwide extent of antireligious government actions being taken in the name of public health and in misguided

reliance upon this Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905).

1 Amici state that no counsel for any party authored this brief in whole or in part and that

no entity or person, aside from amici, their members, and their counsel, made any monetary contribution

toward the preparation or submission of this brief.

1

SUMMARY OF ARGUMENT

The COVID-19 pandemic has stressed religion as it has all of our institutions.

In the early, darkest days of the pandemic, most houses of worship and religious

schools closed their doors to help slow the spread of this novel virus. This was as it

should have been. Love for one’s neighbors, known and unknown, requires sacrifice.

Religious institutions have not asked to be insulated from the burdens associated

with curbing the pandemic; to the contrary, faith groups have been on the front lines

fighting the virus and leading efforts of mercy and mitigation. However, in the eight

months since this pandemic began, governments have shown a consistent propensity

to impose greater burdens on religious conduct than similarly situated secular activities. These authorities have not shown—and could not show—that religious activities pose a greater risk than their secular counterparts. Rather, they have simply

judged that religious worship, education, and other gatherings have less societal or

economic value than similar secular activities that have been allowed to resume with

lighter restrictions.

There is no doubt that the discrimination against religion imposed by Respondent and governments throughout the country could not survive the exacting constitutional scrutiny mandated by the Court’s last century of precedent. Under that precedent, laws infringing the free exercise of religion must be invalidated unless the

state can show that the restrictions are narrowly tailored to fit a compelling interest.

Clearly, combatting a pandemic is a compelling interest, but authorities cannot claim

2

that their actions are narrowly tailored to that interest when they restrict religious

activity but allow similar secular activities to continue.

Recognizing that their actions cannot survive normal constitutional standards,

Respondent and other state and local authorities have argued that those standards

do not apply in a pandemic. For that proposition, they cite to this Court’s 1905 opinion in Jacobson v. Massachusetts, contending in essence that there are two constitutions: one for times of peace and one for times of pandemic.

While such an approach might be convenient for governments seeking to take

swift, expansive, and unilateral executive action, it finds no support in the precedent

of this Court—including Jacobson—and would endanger the very concept of fundamental and well-ordered liberties. Giving the executive deference to infringe liberties

upon the executive’s own declaration of an emergency would transform rights into

mere suggestions.

Like Applicants, amici—churches and schools in Minnesota, Wisconsin, and

California—have experienced firsthand the effects of state and local governments’

sweeping use of their emergency powers. Under the diaphanous cloak of Jacobson,

authorities have allowed thousands of people to shop at malls, but have limited Mass,

Temple, and Services to a handful of congregants. Authorities have shuttered Jewish

schools, but have allowed tens of thousands of camps and childcare facilities to operate at full capacity. They have prohibited people from gathering for prayer while

encouraging people to gather in protest. The examples abound. Across the country,

governments have devised frameworks whereby Americans can join together in

3

rooms for secular activities, but those very same people—sometimes in those very

same rooms—are prohibited from gathering in worship.

A year ago, it would have been unimaginable that such blatant discrimination

against the free exercise of religion could take place in America. The First Amendment was so important—and the Court’s protections of religious liberties so stringent—that not even one such regulation would be allowed to survive. But, due to a

misplaced interpretation of Jacobson, these regulations have become commonplace.

This Court’s intercession is desperately needed—not to rewrite COVID-19 mitigation

plans or second-guess executive officials—but to articulate clearly and unambiguously the constitutional guardrails and rules of the road that must guide governments’ efforts.

Specifically, this Application presents an opportunity for the Court to reaffirm

that constitutional standards of review and fundamental rights are not weakened

during a pandemic. The Court’s well-established standards of review erected to protect fundamental liberties already account for the exigencies we presently face. Indeed, if a pandemic or other emergency is so dire as to justify restricting otherwise

protected constitutionally protected activity, and the government can make that

showing, then the response can and should survive strict scrutiny. And at the same

time, applying rather than displacing heightened scrutiny will ensure that such responses are not disfavoring protected classes and fundamental rights without an appropriate fact-based justification. Conversely, the near-total deference demanded by

Respondent and other authorities under Jacobson—jettisoning judicial skepticism

4

and careful scrutiny of such burdens—is a mode of legal analysis long-since discarded

by this Court and would be a recipe for judicially endorsed tyranny.

This Court should therefore grant the application and enter the writ of injunction or, in the alternative, grant certiorari before judgment to correct the error of the

lower courts in applying Jacobson.

ARGUMENT

As New York Governor Andrew Cuomo has stated repeatedly of the COVID-19

pandemic, “[t]his is war time.” US coronavirus: Fema Official Says Masks and Gloves

Are on the Way to Hospitals – as It Happened, Guardian (Apr 5, 2020, 11:22 AM),

https://www.theguardian.com/world/live/2020/apr/05/coronavirus-us-deaths-trumplatest-news-updates?page=with:block-5e8a02c58f080bdb9f5349f3#liveblog-navigation. As Cicero observed of war time more than two millennia ago, “silent enim leges

inter arma.” Marcus Tullius Cicero, Pro Milone (52 BC). The American experiment,

however, must strive to be better. Our Constitution, our Bill of Rights, protects liberties fundamental to a free people against majorities, against passion, and against

exigency. We have not always lived up to this goal. See, e.g., Korematsu v. United

States, 323 U.S. 214 (1944), overruled by Trump v. Hawaii, 138 S. Ct. 2392 (2018);

Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superseded by constitutional

amendment, U.S. Const. amend. XIV. And, while in the earliest stages deference

might be due to elected executive branch officials, with the passage of time, constitutional norms and rights must reassert and reaffirm themselves. See, e.g., Trump v.

5

Hawaii, 138 S. Ct. 2392, 2423 (2018); Rumsfeld v. Padilla, 542 U.S. 426 (2004); Brown

v. Bd. of Educ., 347 U.S. 483 (1954). This case is such a case.

Like Applicants’, amici’s sincere belief in the fundamental importance of public, in-person worship is beyond dispute. Amici churches believe that “[o]n Sundays

and other holy days of obligation the faithful are bound to participate in the Mass,”

and “[t]hose who deliberately fail in this obligation commit a grave sin.” Catechism of

the Catholic Church §§ 2180–81. Amici schools, as this Court recently recognized,

hold that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the[ir] mission.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020)

(summarizing the key beliefs of Catholics, Protestants, Jews, Muslims, Mormons, and

Seventh-Day Adventists in this regard). Moreover, amici schools believe this religious mandate can only be fulfilled in person. For example, school Mass and frequent

confession—Catholic observances that require the physical presence of a Catholic

priest—are central parts of the religious curriculum of amicus Saint Joseph Academy.

Decls. of Lucas Heintschel & Chris Ambuul in Support of Mtn. for Prelim. Inj., Doc.

Nos. 29-4, 29-15, Samuel A. Fryer Yavneh Academy v. Newsom, No. 2:20-cv-7408

(N.D. Cal. Aug. 27, 2020).2 Corporate prayer—which Jewish law conditions on the

presence of a minyan, or quorum of adult men—is essential to religious education at

2 The district court docket in the Yavneh matter contains extensive declarations, expert opinions, and

other materials regarding the centrality of religion to amici schools’ curricula and the fact that religious schools do not pose a greater health risk than similarly situated activities. Indeed, plaintiffs

there assembled a vast array of medical literature demonstrating that while students are a minimal

risk for COVID-19 infection or transmission, they suffer substantial educational, psychological, sociological, and other developmental harm from being precluded from attending school.

6

amicus Yavneh Hebrew Academy. Decls. of Asher Peretz & Rabbi Shlomo Einhorn

in Support of Mtn. for Prelim. Inj., Doc. Nos. 29-10, 29-20, Samuel A. Fryer Yavneh

Academy v. Newsom, No. 2:20-cv-7408 (N.D. Cal. Aug. 27, 2020). These practices and

many others are essential to amici schools’ missions, and can only be performed in

person.

Respondent has failed to respect the core tenet of Applicants’ religious belief

that Judaism must be practiced publicly and communally. Instead, Respondent has

targeted Applicants for special disfavor in New York’s COVID-19 restrictions. Sadly,

Respondent is not alone: amici’s state and local governments similarly discriminated

against religious practice under the guise of COVID-19 mitigation, and claimed that

Jacobson gave them the authority to do so. This Court should grant the application

and make clear that Jacobson does no such thing, and that the rights of religious

Americans are not contingent on the government’s assessment of their importance.

I.

Jacobson v. Massachusetts does not authorize violations of the Bill of

Rights or alter the federal courts’ duty to scrutinize government

actions that burden religious freedom.

Constitutional rights and standards are not weakened during a pandemic.

This Court has never held otherwise, and it should make clear for lower courts and

public officials alike that it does not do so now. “It is during our most challenging

and uncertain moments” that threats to liberty are at their greatest, and the judiciary’s role as guardian of those rights is more, not less, important. See Hamdi v.

Rumsfeld, 542 U.S. 507, 532 (2004) (plurality opinion); Maryville Baptist Church, Inc.

v. Beshear, 957 F.3d 610, 615 (6th Cir. 2020) (per curiam) (“While the law may take

periodic naps during a pandemic, we will not let it sleep through one.”).

7

While the state undoubtedly has authority to take drastic actions to address

exigent crises, those actions must be evaluated against well-established constitutional standards. In recent months, however, Respondent and governments throughout the country have cited Jacobson for the proposition that, during a pandemic, traditional standards of review should give way to near plenary deference to the state.3

Jacobson has morphed into a warrant for unprecedented and unacceptable invasions

of religious freedom. Respondent relied on Jacobson below to justify its targeted restriction on Applicants’ free exercise of the Jewish faith. Memorandum of Law in

Opposition to Plaintiffs’ Application for Temporary Preliminary Injunctive Relief at

17, Soos v. Cuomo, No. 1:20-cv-651 (N.D.N.Y. June 22, 2020), ECF No. 18. So did

Minnesota in justifying its severe and discriminatory restrictions on public worship.

See State Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Temporary Restraining Order at 16-21, Northland Baptist Church of St. Paul v. Walz, No.

0:20-cv-1100 (WMW) (May 22, 2020), ECF No. 32. California invoked so-called “Jacobson deference” in an attempt to evade searching judicial scrutiny of its restrictions

on religious schools, which did not apply to tens of thousands of day camps or childcare centers. Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary Injunction, Samuel A. Fryer Yavneh Acad. v. Newsom, No. 2:20-

3 These invocations of Jacobson are often based on a misreading of the Chief Justice’s nonprecedential

concurrence in the denial of an application for injunctive relief in South Bay United Pentecostal Church

v. Newsom, 140 S. Ct. 1613 (2020). See Harvest Rock Church, Inc. v. Newsom, 977 F.3d 728, 732 (9th

Cir. 2020) (O’Scannlain, J., dissenting) (objecting to panel majority’s reliance on the Chief Justice’s

South Bay opinion in rejecting a Free Exercise challenge).

8

cv-7408 (JAK) (Sept. 11, 2020), ECF No. 53. More examples abound. See infra Section II.D.

This interpretation and use of Jacobson is as chilling as it is wrong. Jacobson

did not hold that constitutional liberties are weakened or given less protection during

a pandemic. In fact, the plaintiff there failed to identify any constitutional right infringed by regulations requiring mandatory smallpox vaccinations. Jacobson, 197

U.S. at 30–31. Rather, he objected to being vaccinated because he “had no faith in

vaccination as a means of preventing the spread of smallpox, or … thought that vaccination, without benefiting the public, put in peril the health of the person vaccinated.” Id. at 36. The holding in Jacobson is simple and limited: the police power

of the state includes the power to compel healthy adults to be vaccinated, so long as

the law applies “equally to all in like condition” and does not infringe the Constitution. Id. at 30. The Jacobson court—perhaps anticipating the abuses we have seen

during the COVID-19 pandemic—went out of its way to explicitly hold that if a state’s

pandemic-related action violates a fundamental right, “it is the duty of the courts to

so adjudge, and thereby give effect to the Constitution.” Id. at 30–31.

In the context of the religious injuries suffered by Respondent, amici, and

countless faithful around the country, giving effect to the Constitution requires evaluating pandemic-related government actions using the tiered-scrutiny framework

that the Court developed subsequent to its decision in Jacobson. That framework

requires that restrictions on religious worship “undergo the most rigorous of scrutiny.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546

9

(1993). Such restrictions must be invalidated unless they are “justified by a compelling interest and … narrowly tailored to advance that interest.” Id. at 533. This

standard allows and accounts for the state’s heightened interests during a pandemic,

but prevents the state from imposing burdens in a manner that disfavors the free

exercise of religion.

There can be no doubt that Applicants, amici, and others who have been subject to COVID-19 restrictions have had their religious freedom infringed. Central to

the practice of Orthodox Judaism is the communal celebration of the Sabbath in the

synagogue, which Respondent’s restrictions have made impossible. See Application

22. Similarly, central to the practice of Roman Catholicism is the fulfillment of the

“Sunday obligation” to attend Mass in a parish church, which many state and local

governments have made impossible by imposing strict limitations on religious gatherings.

There can also be no doubt that Respondent’s restrictions and other COVID19 measures around the country are not narrowly tailored to the state’s compelling

interest in mitigating the pandemic. Many COVID-19 restrictions, including Respondent’s, discriminate against religion on their face.

See Application 25–29;

Church of the Lukumi Babalu Aye, 508 U.S. at 533 (“a law targeting religious beliefs

as such is never permissible” and “the minimum requirement of neutrality is that a

law not discriminate on its face”). Others, like the restrictions California imposed on

amici schools, have been unequally enforced. See Masterpiece Cakeshop, Ltd. v. Colo.

10

Civil Rights Comm’n, 138 S. Ct. 1719, 1732 (2018) (“disparate consideration” of religious and nonreligious conduct evidenced hostility toward religion, which is “inconsistent with what the Free Exercise Clause requires”). And nearly all are riddled

with exceptions for favored interests and industries: in California, for instance, the

entertainment industry is exempted from much of the state’s restrictions; in Nevada,

casinos are treated far more favorably than houses of worship; and in Minnesota and

Wisconsin, amici churches had to threaten litigation just to be treated on par with

commercial interests such as restaurants, bars, and retail stores. See Emp’t Div.,

Dep’t of Human Res. v. Smith, 494 U.S. 872, 884 (1990) (“where the State has in place

a system of individual exemptions, it may not refuse to extend that system to cases

of ‘religious hardship’ without compelling reason”). Thus, applying the ordinary

standard of review required by this Court’s modern religious liberties cases would

result in the invalidation of Respondent’s orders. Jacobson does not allow or require

a different result.

In cases involving nonreligious issues, the lower courts have readily applied

modern analyses and rejected states’ arguments that Jacobson justified restrictions

on constitutional rights. For example, both the Sixth and Eleventh Circuits struck

down COVID-related abortion restrictions, holding that Jacobson does not alter modern constitutional standards. See Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 926

(6th Cir. 2020), petition for cert. filed, No. 20-482 (U.S. Oct. 14, 2020); Robinson v.

Attorney Gen., 957 F.3d 1171, 1182 (11th Cir. 2020). The Sixth Circuit reasoned that

“we will not countenance … the notion that COVID-19 has somehow demoted Roe

11

and Casey to second-class rights, enforceable against only the most extreme and outlandish violations. Such a notion is incompatible not only with Jacobson, but also

with American constitutional law writ large.” Adams & Boyle, P.C., 956 F.3d at 927.

The same reasoning applies to the First Amendment, which expressly protects religious free exercise. “The Constitution sets certain lines that may not be crossed, even

in an emergency” and if “[a]ctions taken by [governments] cross[] those lines,” “[i]t is

the duty of the Court to declare those actions unconstitutional.” Cty. of Butler v. Wolf,

No. 2:20-CV-677, 2020 WL 5510690, at *31 (W.D. Pa. Sept. 14, 2020). See Soos v.

Cuomo, No. 1:20-cv-651 (GLS), 2020 WL 3488742, at *8 (N.D.N.Y. June 26, 2020),

appeal docketed, No. 20-2418 (2d Cir. July 30, 2020); First Baptist Church v. Kelly,

455 F. Supp. 3d 1078, 1089 (D. Kan. 2020); Tabernacle Baptist Church, Inc. of Nicholasville v. Beshear, 459 F. Supp. 3d 847, 850 (E.D. Ky. 2020); Capitol Hill Baptist

Church v. Bowser, No. 20-cv-2710 (TNM), 2020 WL 5995126, at *12 (D.D.C. Oct. 9,

2020).

II.

Jacobson is nevertheless being used to justify severe infringements on

religious freedoms throughout the Nation.

Amici have directly experienced the consequences of assertions—often prem-

ised on a misreading of Jacobson—that governments have near-plenary authority to

infringe the free exercise of religion during a pandemic. State and local governments

in Minnesota, Wisconsin, and California ran roughshod over amici’s rights, imposing

greater restrictions on religious worship and education than similarly situated secu-

12

lar conduct. Only by seeking legal recourse were amici able to achieve some semblance of equal treatment. This pattern has repeated itself in jurisdictions across the

country.

By acting on this application, this Court can clarify for both governmental authorities and lower courts that the government will not be given carte blanche to violate religious freedoms in the name of combatting COVID-19, but rather that pandemic mandates burdening fundamental rights, including free exercise, will be subject to the same judicial skepticism and incisive scrutiny this Court has long required

of all such laws.

A.

Minnesota relied on Jacobson to justify its months-long

prohibition of public worship, while permitting shopping malls

and restaurants to operate.

When Minnesota began to relax its initial COVID-19 restrictions, the state allowed “[n]on-[c]ritical,” “customer facing businesses”—such as the Mall of America

and pet groomers—to reopen at 50 percent capacity. Minn. Exec. Order No. 20-56

¶ 7(e)(ii) (May 13, 2020), https://www.leg.mn.gov/archive/execorders/20-56.pdf. But

religious gatherings were subject to more onerous restrictions: Minnesota expressly

prohibited “gatherings of more than 10 people” for a “faith-based … purpose—even if

social distancing c[ould] be maintained.” Id. ¶ 6(c). Minnesota’s “guidance” for houses

of worship reinforced the ban on religious gatherings of 10 or more persons while

giving no indication of when faith-based gatherings could resume. Minn. Dep’t of

Health, Guidance for Faith-Based Communities Considering In-Person Services (May

13, 2020). Yet the governor directed state agencies “to develop a phased plan to

13

achieve the limited and safe reopening of bars, restaurants, and other places of public

accommodation beginning on June 1, 2020.” Minn. Exec. Order No. 20-56 ¶ 7(b).

In each phase of its reopening plan, Minnesota discriminated against the free

exercise of religion.

Minnesota’s Stay Safe Plan, Minn. COVID-19 Response,

https://mn.gov/covid19/for-minnesotans/stay-safe-mn/stay-safe-plan.jsp

(last

updated Nov. 10, 2020). In “Phase I,” places of worship and religious services were

restricted to 10 or fewer people, indoors or outdoors, even though retail establishments were open at 50 percent capacity and both critical and non-critical businesses

were open. Id. In “Phase II,” nothing changed for places of worship—even outdoor

and socially-distanced religious gatherings remained limited to 10 persons. Id. But

restaurants and bars were permitted to serve up to 50 patrons outdoors,

campgrounds and boat charters were allowed to operate, and salons and barbershops

were open at 25 percent capacity. Id. Restaurant patrons were not required to wear

masks, so long as they practiced social distancing. Id. Even in “Phase III” of Minnesota’s reopening, places of worship were to be limited to indoor gatherings of 20 or

fewer persons, while restaurants and bars were allowed to open indoor dining and

other businesses were permitted to operate at increased capacity. Id.

This discriminatory treatment lacked any scientific, health, or other meaningful rationale. On its face, Minnesota Executive Order 20-56 allowed more than 10

persons to gather in cannabis dispensaries, liquor stores, bicycle shops, and a long

list of other “critical and non-critical businesses.” See Minn. Exec. Order No. 20-56

14

¶ 6(c). Yet the Order deemed public worship less important than “commercial activity,” relegating it to an inferior category along with “social,” “leisure,” and “recreational” gatherings. Id. Order 20-56 targeted religious gatherings not because they

present a heightened risk of COVID-19 transmission (there is no reliable evidence

that they do) but because of their “faith-based … purpose.” Id.

The consequences of this discriminatory treatment should shock the conscience

of every American: this May in Minnesota, twelve people could legally shop in a retail

store, but if that same group crossed the street to pray at a neighborhood church, they

violated the law. Tens of thousands were allowed in the Mall of America—up to 50

percent of its capacity—but to fill even one percent of the pews at the Cathedral of

Saint Paul (capacity 3000) was a criminal offense.

Minnesota offered no explanation for allowing the Mall of America to operate

at 50 percent capacity with store employees, custodial staff, security, and guests for

upwards of 8 hours a day, while demanding that houses of worship be banned from

holding services with more than 10 persons for a short time on Saturday or Sunday.

Nor could it. There is no basis to conclude that attending a church service, subject to

the same social distancing requirements set out for commercial activities, presents

any greater risk of transmission than shopping at a retail outlet.

Patently unable to satisfy the strict scrutiny framework, Minnesota justified

its conduct by citing Jacobson as the controlling authority. See Defs.’ Mem. in Opp’n

to Pls.’ Mot. for T.R.O., Northland Baptist Church of St. Paul v. Walz, No. 20-cv-1100

15

(WMW) (ECF No. 32) (May 22, 2020) (Jacobson is “the seminal United States Supreme Court case that governs the constitutional analysis in this case,” and “courts

give significant deference to the emergency measures instituted during an epidemic

under the standard set forth by the Supreme Court in Jacobson.”). Despite letters

pleading for fair treatment from churches including amicus the Roman Catholic Archdiocese of Saint Paul and Minneapolis, Minnesota refused to work toward a solution

that respected religious freedom. Minnesota only changed course after the Archdiocese and other churches retained counsel and threatened litigation over the state’s

discriminatory and unconstitutional treatment of religion. Even when the governor

announced his concession to let churches reopen, the mayors of Minneapolis and St.

Paul responded by urging citizens not to return to church and indicating that they

were considering their own ban on religious gatherings. Anthony Gockowski, Twin

Cities Mayors Don’t Want to Let Churches Reopen, Archbishop Hits Back, Minn. Sun

(May 26, 2020), https://theminnesotasun.com/2020/05/26/twin-cities-mayors-dontwant-to-let-churches-reopen-archbishop-hits-back/. Only the tragic death of George

Floyd and resulting public demonstrations—which those same public officials embraced—forestalled these further threatened restrictions on religious association.

B.

In the name of public health and under pressure from

antireligion activists, the City of Madison and Dane County,

Wisconsin likewise prohibited public worship for months, while

permitting retail stores, restaurants, and office buildings to

operate, and approving of mass protests.

After Wisconsin’s statewide COVID-19 restrictions were held by the Wisconsin

Supreme Court to have been unlawfully promulgated, Public Health Madison & Dane

16

County (“PHMDC”) implemented local restrictions and a phased reopening plan that

initially treated religious entities the same as other “essential businesses and operations,” limiting occupancy to 25 percent. PHMDC Emergency Order 1 (May 13, 2020)

(requiring religious entities to follow Section 2(b) of Wisconsin Department of Health

Services Emergency Order #28); PHMDC, Forward Dane: Phased Reopening Plan for

Dane County During the COVID-19 Pandemic 13 (May 18, 2020) (“Forward Dane

Version 1”). However, three days after receiving a letter from the Freedom From

Religion Foundation complaining that churches were being permitted to reopen,4

PHMDC issued Emergency Order 3 and revised its “Forward Dane” reopening plan

to cap all religious gatherings at 50 persons. PHMDC, Forward Dane Version 2:

Phased Reopening Plan for Dane County During the COVID-19 Pandemic 13 (May

22, 2020) (“Forward Dane Version 2”). Under Emergency Order 3, all businesses were

permitted to resume routine operations at 25 percent capacity, but “Mass Gatherings,” defined as “planned events … such as a concert, festival, meetings, training,

conference, religious service, or sporting event,” were capped at 50 persons. PHMDC

Emergency Order No. 3, § 2 (May 22, 2020), https://publichealthmdc.com/documents/2020-05-22_Order_3.pdf.

Of all the entities and activities addressed in the Forward Dane plan, only

houses of worship fared worse in Forward Dane Version 2. For example, in the original plan, “[i]ndoor places of arts and culture” such as movie theaters and museums

4 May 19, 2020 letter from Annie Laurie Gaylor & Dan Barker, Co-Presidents, Freedom from Religion

Foundation, to Janel

https://bit.ly/3cCqd0V.

Heinrich,

Director,

Public

17

Health

Madison

&

Dane

County

1,

were allowed to open in Phase 1 at 25 percent capacity with “[m]inimum 6 feet spacing between groups.” Forward Dane Version 1, at 6. In Version 2, that category was

combined with “[i]ndoor playgrounds, funplexes, trampoline parks, [and] miniature

golf” into a new grouping called “[p]laces of amusement and activity,” which were

permitted to reopen at 25 percent capacity—without the requirement of six-foot distancing between groups. Forward Dane Version 2, at 13.

PHMDC made clear in a May 29, 2020 “COVID-19 Information Update” that

the “Mass Gathering” restrictions did not apply to a business’s “everyday operations”—only to atypical gatherings. PHMDC Emergency Order No. 3, § 2. Only religious organizations were prohibited from resuming their everyday operations—religious services—at 25 percent capacity, because Emergency Order 3 defined all religious services as “Mass Gatherings.”

Dane County officials went so far as to call diocesan officials and pastors at

several diocesan parishes, threatening to “monitor” Masses and issue citations if a

religious gathering exceeded the 50-person limit. These admonishments came even

as thousands of Madisonians packed the streets for public protests with inconsistent

masking and no semblance of social distancing. According to media reports, there

were few citations or arrests at these protests. On the contrary, the Mayor of Madison

said she “supported people protesting as long as they wanted, and wherever they

18

wanted.”5 Madison and Dane County clearly favored some First Amendment activities over others.

Thus, in Madison, much like in Minnesota, thousands of people could shop together at malls, hundreds could work in office buildings with social distancing, and

dozens of children could bounce around at indoor trampoline parks. And as long as

local officials supported their cause, protestors could violate the “Mass Gathering”

ban with impunity. But because all religious services were deemed “Mass Gatherings,” no more than 50 of the 1,225 seats in the Diocese of Madison’s Saint Maria

Goretti Church could be filled by law-abiding citizens.

The Diocese of Madison protested PHMDC’s religious discrimination without

success until the Diocese retained counsel and threatened litigation. Only then did

PHMDC issue a new order that treated religious and nonreligious activities equally.6

C.

California relied on Jacobson to justify its months-long

prohibition of in-person religious education, while permitting

camps and daycares to operate in school buildings.

In response to COVID-19, California enacted restrictions that burdened religious schools while leaving other, functionally identical groups unburdened. The

state closed all schools and then issued a “framework for reopening” that indefinitely

suspended “in-person learning” for nearly the entire state. Exec. Dep’t, State of Cal.,

After Peaceful Afternoon, Protests Escalating in Madison, WAOW TV-9 (May 30, 2020),

https://waow.com/2020/05/30/after-peaceful-afternoon-protests-escalating-in-madison/.

5

6 While amici in Wisconsin and Minnesota were grateful to secure positive outcomes short of litigation,

these resolutions underscore a further concern, that state and local governments may bend or break

the law, only to pull back when threatened with litigation. This sort of gamesmanship, mooting claims

and legislating around protected rights by trial and error is too often a feature of religious liberties

litigation.

19

Proclamation of a State of Emergency (Mar. 4, 2020), https://bit.ly/31ZDbTj; Exec. Order No. N-33-20 (Mar. 19, 2020), https://bit.ly/3arL6fM. After the filing of multiple

lawsuits in federal and state court, including by some of amici, the state issued “cohort guidance” that allowed daycares, camps, and other supervised care environments to operate at 100 percent capacity, so long as children were placed in small

cohorts. See Cal. Dep’t of Pub. Health, Guidance Related to Cohorts (Sept. 4, 2020),

https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/small-groups-childyouth.aspx. However, schools were allowed to open only at 25 percent capacity and

only to provide a subset of services. See Cal. Dep’t of Pub. Health, Providing Targeted,

Specialized

Support

and

Services

at

School

(updated

Sept.

4,

2020),

https://bit.ly/2ZRotNQ.

Amici schools believe that their religious missions can be fulfilled only through

some in-person instruction and communal participation in prayers, sacraments, and

other religious observances. See supra 6-7. Yet at the same time California refused

to accommodate amici’s religious needs, it went to great lengths to accommodate nonreligious interests. While California required most schools to remain closed, it allowed tens of thousands of day camps and childcare facilities to continue providing

services—including in the very school buildings closed to in-person education. In

other words, children could gather in a room to play, but that very same group in that

very same room was prohibited from receiving religious instruction. Children could

gather in person at distance-learning hubs, karate dojos, bowling alleys, movie theaters, and arcades, but they could not come together for religious inculcation. See

20

Sonja Sharp, A Loophole Is Allowing Thousands of California Students to Use Pandemic-Shuttered Classrooms, L.A. Times (Aug. 22, 2020), https://lat.ms/2Qmfu25;

Katy Murphy, Shadow Schools? Class Is in Session — at the YMCA and Roller Rink,

Politico (Aug. 7, 2020), https://politi.co/2QiLnIJ; Cal. Dep’t of Pub. Health, COVID-19

Industry

Guidance:

Family

Entertainment

Centers

(Oct.

20,

2020),

https://bit.ly/3ljEp4o; Cal. Dep’t of Pub. Health, COVID-19 Interim Guidance: Youth

Sports (Aug. 3, 2020), https://bit.ly/2Eh1mVu.

When amici schools sued, the state invoked “the deference afforded under Jacobson” in defense of its discriminatory restrictions. Memorandum of Points and Authorities in Opposition to Plaintiffs’ Motion for Preliminary Injunction at 7, Samuel

A. Fryer Yavneh Acad. v. Newsom, No. 2:20-cv-7408 (JAK) (Sept. 11, 2020), ECF No.

53. Fortunately, California relented and agreed to a stipulated order allowing religious schools in the California to open at 100 percent capacity, as long as the schools

follow the cohort guidance applicable to comparable nonreligious activities. Stipulated Order of Dismissal, Samuel A. Fryer Yavneh Acad. v. Newsom, No. 2:20-cv-7408

(JAK) (Oct. 28, 2020), ECF No. 63.

D.

The constitutional and religious injuries endured by Amici have been

replicated across the Nation by states relying on Jacobson and the

need to protect public health.

Amici are only a few of the untold thousands of houses of worship, schools, and

religious organizations that have endured heavy-handed prohibitions of the free exercise of their religion in the name of “flattening the curve.” Other examples from

21

around the country demonstrate that the states’ disrespect and disregard for the free

exercise of religion is a truly national problem.

Kansas, for instance, after initially exempting religious services from its massgathering restriction, issued a new order five days before Easter banning religious

gatherings of more than 10 persons. Yet the government continued to allow more

than 10 persons in retail stores, restaurants, public transportation facilities, and offices. First Baptist Church v. Kelly, 455 F. Supp. 3d at 1089. The district court

determined that the governor had singled out churches as “the only essential function

whose core purpose . . . had been basically eliminated,” making it clear that “religious

activity was targeted for stricter treatment due to the nature of the activity involved,

rather than because such gatherings pose unique health risks.” Id.

Kentucky’s governor and the mayor of Louisville went a step further by imposing—and threatening to enforce—prohibitions on drive-through church services,

while allowing drive-through liquor stores and restaurants to operate freely.

Maryville Baptist Church, 957 F.3d at 613; On Fire Christian Ctr., Inc. v. Fischer, 453

F. Supp. 3d 901, 910 (W.D. Ky. 2020). Ironically, while drive-through worship was

criminalized, indoor, in-person office meetings were allowed, “even though the openair services would seem to present a lower health risk.” Maryville Baptist Church,

957 F.3d at 613. In fact, Kentucky slated nearly every type of activity—from car

washing to dog grooming—to resume before worship services. Id.

Nevada’s governor allowed thousands of people to congregate in casinos, while

simultaneously limiting attendance at religious services to 50 regardless of the size

22

of the facility. See Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2604

(2020) (Alito, J., dissenting). This overt discrimination led one member of this Court

to conclude that in Nevada, “it is better to be in entertainment than religion.” Id. at

2609 (Gorsuch, J., dissenting).

The mayor of the District of Columbia refused to issue a permit for a church to

meet outdoors and socially distanced, while publicly and simultaneously “‘welcom[ing]’ hundreds, if not thousands” of protesters to the city. Capitol Hill Baptist

Church, 2020 WL 5995126, at *8. The district court observed that “[n]o matter how

the protests were organized and planned, the District’s (and in particular, Mayor

Bowser’s) support for at least some mass gatherings undermines its contention that

it has a compelling interest in capping the number of attendees at the Church’s outdoor services.” Id.

Colorado designated houses of worship as “critical,” but functionally “treat[ed]

them differently from other ‘critical’ businesses and activities, even those that pose a

comparable risk of COVID-19 transmission.” Denver Bible Church v. Azar, 2020 WL

6128994, at *9 (D. Colo. Oct. 15, 2020). The state required houses of worship to operate at a lower capacity than “critical” nonreligious concerns such as packing plants

and warehouses, groceries, liquor stores, gun shops, and marijuana dispensaries. Id.

at 10. The district court concluded that “[h]aving decided that the risk of allowing

various activities to be exempt from the strictest Safer at Home rules is justified on

the basis that those activities are critical and necessary, the State cannot decide for

Plaintiffs what is critical and necessary to their religious exercise.” Id. at *13.

23

Finally, Respondent has discriminated against religious organizations in New

York for months. Until June, houses of worship were the only indoor facilities in the

state that were subject to a 25 percent capacity limitation; other “nonessential businesses” enjoyed a 50 percent cap despite not being “justifiably different than houses

of worship.” Soos, 2020 WL 3488742, at *11. Similarly, New York’s restrictions on

outdoor gatherings expressly exempted graduation ceremonies, and implicitly contained a “de facto exemption” for public protests, id., but made no allowance for outdoor religious activities. Respondent’s blatant preference for nonreligious behavior

has also affected the enforcement of New York’s COVID-19 restrictions, leading to

outrageous spectacles such as a group of eight Jews, spaced twenty feet from one

another, being threatened with arrest for praying together in an “illegal gathering.”

Id. at *6.

CONCLUSION

Only a year ago, the thought of state governments cracking down on public

worship was unthinkable. It has sadly now become commonplace. But this Court

should not allow it to become acceptable. To be clear, amici appreciate the challenges

state and local elected and public health officials face in combating this pandemic. At

the same time, the simple truth remains that when a situation is so bad as to justify

such extreme restrictions, then such restrictions should rightly apply equally to all

similarly situated assemblies as a matter of sound policy and logic. The fact that the

decision has been made, repeatedly, to apply restrictions unevenly, undercuts these

officials’ justifications. The law does not allow this disparity.

24

It falls to this Court to underscore that Jacobson does not displace constitutional norms and to ensure that state and local governments cannot chop down cherished protections and fundamental rights in pursuit of COVID-19. As written in a

different context:

William Roper:

So, now you give the Devil the benefit

of law!

Sir Thomas More:

Yes! What would you do? Cut a great

road through the law to get after the

Devil?

William Roper:

Yes, I’d cut down every law in England

to do that!

Sir Thomas More:

Oh? And when the last law was down,

and the Devil turned round on you—

where would you hide, Roper, the laws

all being flat? This country’s planted

thick with laws from coast to coast—

man’s laws, not God’s—and if you cut

them down, and you’re just the man to

do it, d’you really think you could stand

upright in the winds that would blow

then? Yes, I’d give the Devil benefit of

law, for my own safety’s sake!

Robert Bolt, A Man for All Seasons 66 (1st Vintage international ed. 1990) (1960).7

Beyond the benefits that constitutional protection confers on religious observants, the entire nation benefits from the preservation of the rule of law when the

words of our nation’s founding document are given full force. The Court should grant

the application and enter the writ of injunction or, in the alternative, grant certiorari

before judgment to correct the error of the lower courts in applying Jacobson.

7 Viewable at https://www.youtube.com/watch?v=d9rjGTOA2NA (Columbia Pictures 1966).

25

Respectfully submitted,

/s/ Gordon D. Todd

MICHAEL A. HELFAND

PEPPERDINE CARUSO SCHOOL OF LAW*

24255 PACIFIC COAST HIGHWAY

MALIBU, CA 90263

(310) 506-4611

MORGAN A. PINO

SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

(212) 839-5300

GORDON D. TODD

Counsel of Record

DINO L. LAVERGHETTA

LUCAS W.E. CROSLOW

CHRISTOPHER S. ROSS

ROBIN W. CLEARY

MACKENZI J.S. EHRETT

CODY L. REAVES

BROOKE E. BOYD

SIDLEY AUSTIN LLP

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

(202) 736-8000

Counsel for Amici Curiae

*Institutional affiliation listed for identification purposes only

26