Amicus Curiae Brief — Calvary Chapel San Jose, et al., Petitioners v. California, et al.

Supreme Court briefJan 16, 2026

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No. 25-703

In the Supreme Court of the United States

CALVARY CHAPEL SAN JOSE, ET AL.,

Petitioners,

PEOPLE OF THE STATE OF CALIFORNIA, ET AL.,

Respondents.

——————

ON PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA COURT OF APPEAL,

SIXTH APPELLATE DISTRICT

BRIEF OF AMICI CURIAE STATE OF

WEST VIRGINIA AND 19 OTHER STATES

IN SUPPORT OF PETITIONERS

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

cdavid@wvago.gov

(304) 558-2021

CALEB B. DAVID

Deputy Solicitor General

Counsel of Record

MATT K. NIU

Caldwell Fellow

[additional counsel listed after signature page]

TABLE OF CONTENTS

Introduction and Interests of Amici Curiae ..................... 1

Summary of Argument ........................................................ 2

Reasons for Granting the Petition...................................... 3

I. Free Exercise is Our First Core Right. .................. 3

II. Pandemics—Though Serious—Don’t Reduce or

Eliminate Constitutional Rights. ........................... 9

III. California’s Regulations Unconstitutionally

Burden Calvary Chapel’s Free Exercise............ 13

IV. If Need Be, Smith Should Be Overruled. ............ 18

Conclusion ........................................................................... 23

III

TABLE OF AUTHORITIES

Page(s)

Cases

Ariz. Christian Sch. Tuition Org. v. Winn,

563 U.S. 125 (2011) ......................................................... 5

Attorney General v. Desilets,

418 Mass. 316 (Mass. 1994) .......................................... 21

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ..................................................... 1

Cantwell v. Connecticut,

310 U.S. 296 (1940) ................................................... 7, 15

Carson v. Makin,

596 U.S. 767 (2022) ......................................................... 8

Catholic Charities Bureau, Inc. v. Wis.

Labor & Indus. Rev. Comm’n,

605 U.S. 238 (2025) ......................................................... 6

Church of the Lukumi Babalu Aye v.

Hialeah,

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

Cooper v. French,

460 N.W.2d 2 (Minn. 1990) .......................................... 21

Employment Division v. Smith,

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

Everson v. Bd. of Educ. of Ewing,

330 U.S. 1 (1947) ............................................................. 4

First Nat’l Bank of Bos. v. Bellotti,

435 U.S. 765 (1978) ....................................................... 17

Fisher v. Univ. of Tex. at Austin,

570 U.S. 297 (2013) ....................................................... 17

Frazee v. Illinois,

489 U.S. 829 (1989) ......................................................... 7

Fulton v. City of Philadelphia,

593 U.S. 522 (2021) ...............................................passim

Gateway City Church v. Newsom,

141 S. Ct. 1460 (Feb. 26, 2021) .................................... 13

Gish v. Newsom,

141 S. Ct. 1290 (Feb. 8, 2021) ...................................... 13

Harvest Rock Church, Inc. v. Newsom,

141 S. Ct. 889 (Dec. 3, 2020)......................................... 12

Hawai‘i v. Armitage,

319 P.3d 1044 (Haw. 2014) ........................................... 21

High Plains Harvest Church v. Polis,

141 S. Ct. 527 (Dec. 15, 2020) ....................................... 12

Hobbie v. Unemployment Appeals

Comm’n of Fla.,

480 U.S. 136 (1987) ......................................................... 7

Home Bldg. & L. Ass’n v. Blaisdell,

290 U.S. 398 (1934) ....................................................... 11

Hosanna-Tabor Evangelical Lutheran

Church and Sch. v. EEOC,

565 U.S. 171 (2012) ................................................... 6, 19

Humphrey v. Lane,

728 N.E.2d 1039 (Ohio 2000) ....................................... 21

James v. Heinrich,

960 N.W.2d 350 (Wis. 2021) ......................................... 21

Kennedy v. Bremerton Sch. Dist.,

597 U.S. 507 (2022) ................................................... 4, 20

Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist.,

508 U.S. 384 (1993) ....................................................... 21

Mahmoud v. Taylor,

606 U.S. 522 (2025) ................................................... 3, 18

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rts. Comm’n,

584 U.S. 617 (2018) ......................................................... 8

McLaughlin v. Florida,

379 U.S. 184 (1964) ....................................................... 22

Munns v. Martin,

930 P.2d 318 (Wash. 1997) ........................................... 21

Our Lady of Guadalupe Sch. v. MorrisseyBerru,

591 U.S. 732 (2020) ....................................................... 19

Roman Catholic Diocese of Brooklyn v.

Cuomo,

592 U.S. 14 (2020) ................................................... 10, 12

Rupert v. City of Portland,

605 A.2d 63 (Maine 1992) ............................................. 21

Sherbert v. Verner,

374 U.S. 398 (1963) ....................................... 7, 19, 20, 22

South Bay United Pentecostal Church v.

Newsom,

985 F.3d 1128 (9th Cir. 2021) ....................................... 18

South Bay United Pentecostal Church v.

Newsom,

141 S. Ct. 716 (2021) ............................................... 12, 17

Tandon v. Newsom,

593 U.S. 61 (2021) .................................................passim

Thomas v. Rev. Bd. of Ind. Emp. Sec. Div.,

450 U.S. 707 (1981) ......................................................... 7

In Matter of Tiffany O.,

467 P.3d 1076 (Alaska 2020) ........................................ 21

Torcaso v. Watkins,

367 U.S. 488 (1961) ......................................................... 7

Trinity Lutheran Church of Columbia v.

Comer,

582 U.S. 449 (2017) ......................................................... 8

United States v. Carolene Products Co.,

304 U.S. 144 (1938) ....................................................... 22

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) ......................................................... 5

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................... 7, 20

VII

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ....................................................... 10

Constitutional Provisions

ALA. CONST. art. I, § 3.01 ................................................... 20

U.S. CONST. amend. I ....................................................... 4, 7

Statutes

42 U.S.C. § 2000bb .............................................................. 20

42 U.S.C. § 2000cc .............................................................. 20

71 PA. CONS. STAT. § 2404.................................................. 20

ARK. CODE ANN. § 16-123-404 ........................................... 20

CONN. GEN. STAT. ANN. § 52-571b.................................... 20

FLA. STAT. § 761.03 ............................................................ 20

GA. CODE ANN. § 50-15A-1 ................................................ 20

IDAHO CODE ANN. § 73-402 ............................................... 20

ILL. COMP. STAT. 35/15....................................................... 20

IND. CODE § 34-13-9-8 ........................................................ 20

IOWA CODE ANN. § 675.4.................................................... 20

KAN. STAT. ANN. § 60-5304 ................................................ 20

VIII

KY. REV. STAT. ANN. § 446.350 ......................................... 20

LA. STAT. ANN. § 13:5233 ................................................... 20

MISS. CODE ANN. § 11-61-1 ............................................... 20

MO. ANN. STAT. § 1.302 ...................................................... 20

MONT. CODE ANN. § 27-33-105 .......................................... 20

N.D. CENT. CODE ANN. § 14-02.4-08.1 ............................. 20

NEB. REV. STAT. § 20-703 .................................................. 20

OKLA. STAT. tit. 51, § 253 ................................................... 20

R.I. GEN. LAWS § 80.1-3 ..................................................... 20

S.C. CODE ANN. § 1-32-40 .................................................. 20

S.D. CODIFIED LAWS § 1-1A-4 .......................................... 20

TENN. CODE ANN. § 4-1-407 .............................................. 21

TEX. CIV. CODE ANN. § 110.003 ........................................ 21

UTAH CODE ANN. § 63L-5-201 .......................................... 21

VA. CODE ANN. § 57-2.02.................................................... 21

W. VA. CODE § 35-1A-1....................................................... 21

WYO. STAT. ANN. § 9-29-103 .............................................. 21

Regulations

85 Fed. Reg. 15337 (Mar. 18, 2020),

https://bit.ly/4jAQ4KC ................................................... 9

Cal. Exec. Order No. N-33-20 (Mar. 19,

2020), available at

https://tinyurl.com/y9envz3e ......................................... 9

Other Authorities

1 ANNALS OF CONG. 757 (1789) (J. Gales ed.

1834) ................................................................................. 5

15 Days to Slow the Spread, WHITE HOUSE

(Mar. 16, 2020),

https://tinyurl.com/yc5x7ybd......................................... 9

Branton J. Nestor, Revisiting Smith: Stare

Decisis and Free Exercise Doctrine, 44

HARV. J. L. & PUB. POL’Y 403 (2021) .......................... 21

COVID-19 Declarations,

FEMA, https://www.fema.gov/covid-19

(last accessed Jan. 13, 2026) .......................................... 9

Douglas Laycock & Thomas C. Berg,

Protecting Free Exercise Under Smith

and After Smith, 2021 CATO SUP. CT.

REV. 33 ........................................................................... 21

Exercise, SAMUEL JOHNSON’S DICTIONARY

(4th ed. 1773) ................................................................... 4

Free, SAMUEL JOHNSON’S DICTIONARY (4th

ed. 1773) ........................................................................... 4

Governor Newsom Orders Additional

Action to Slow Community

Transmission, CAL. DEP’T PUB.

HEALTH (last updated Feb. 3, 2021),

https://tinyurl.com/ynhjajcx .......................................... 9

Howell E. Jackson & Steven L. Schwarcz,

Protecting Financial Stability: Lessons

from the COVID-19 Pandemic, 11

HARV. BUS. L. REV. 193 (2021) .................................... 10

James Madison, Letter from James

Madison to the Rev. George Eve, Jan. 2,

1789, in 11 THE PAPERS OF JAMES

MADISON 7 MARCH 1788 — 1 MARCH

1789 404 (R. Rutland & C. Hobson eds.

1977), https://tinyurl.com/4r6mrw62 ............................ 5

Josh Blackman, The “Essential” Free

Exercise Clause, 44 HARV. J.L. & PUB.

POL’Y 637 (2021) ............................................................ 11

Mary Ann Glynn, ‘15 Days to Slow the

Spread’: Covid-19 and Collective

Resilience, 58 J. MANAGE. STUD. 265

(2020) .............................................................................. 10

Michael W. McConnell, Free Exercise

Revisionism and the Smith Decision,

57 U. CHI. L. REV. 1109 (1990) ...................................... 5

Michael W. McConnell, The Origins and

Historical Understanding of Free

Exercise of Religion, 103 HARV. L. REV.

1409 (1990) ................................................................... 5, 6

Nick Igbokwe, How many players can

dress for an NFL game? Revisiting the

league's new rules and regulations for

2023, SPORTSKEEDA,

https://tinyurl.com/yc455uvu (May 31,

2024, 8:11 a.m. GMT) .................................................... 16

Officials' Responsibilities & Positions,

NFL, https://tinyurl.com/435c3s7v (last

visited Jan. 13, 2026) .................................................... 16

Paul C. Erwin, Kenneth W. Mucheck &

Ross C. Brownson, Different Responses

to COVID-19 in Four US States:

Washington, New York, Missouri, and

Alabama, 111 AM. J. PUB. HEALTH 647

(2021) .............................................................................. 10

Prohibit, SAMUEL JOHNSON’S DICTIONARY

(4th ed. 1773) ................................................................... 4

Religion, SAMUEL JOHNSON’S DICTIONARY

(4th ed. 1773) ................................................................... 4

Religion, WEBSTER’S AMERICAN

DICTIONARY OF THE ENGLISH

LANGUAGE (1st ed. 1828) ............................................... 4

Stephanie Barclay, Constitutional Rights

as Protected Reasons, 92 U. CHI. L.

REV. 1179 (2025) ........................................................... 22

XII

Trudy Henson, Safe at Home? Legal and

Liberty Concerns with Stay-at-Home

Orders, 28 GEO. MASON L. REV. 509,

514 (2021) ....................................................................... 10

Virgil H. Storr et al., Essential or Not?

Knowledge Problems and COVID-19

stay-at-home Orders, 87 S. ECON. J.

1229 (2021), available at

https://tinyurl.com/y36tjyne ........................................ 11

INTRODUCTION AND INTERESTS

OF AMICI CURIAE1

Religious freedom drove the Nation’s founding. So as

America’s 250th birthday draws near, one might be

forgiven for thinking religious exercise law would be

settled by now. But after more than two centuries of

relatively consistent judicial protection of this core liberty,

the Court made an abrupt about-face.

Employment Division v. Smith, 494 U.S. 872 (1990),

turned free exercise jurisprudence on its head. According

to Smith, laws burdening religious exercise don’t

“offend[]” the First Amendment, so long as they are

“generally applicable” and have merely “incidental effect”

on religious liberty. Id. at 878. That test might seem

initially innocuous. After all, some laws don’t make any

religious-based classification. For example, “a city fire

code may require sprinklers in all buildings that can hold

more than 100 people.” Calvary Chapel Dayton Valley v.

Sisolak, 140 S. Ct. 2603, 2611 (2020) (Kavanaugh, J.,

dissenting).

A law like that one doesn’t present

“impermissible [religious] discrimination or favoritism.”

Id. But other laws do. And under Smith’s framework,

“general applicability” is the key that unshackles laws

from strict scrutiny’s rigors.

For decades now, courts have struggled to consistently

determine the bounds of Smith’s “general applicability”

proviso. In the face of the COVID pandemic, the problem

worsened. Some courts seemed to think the Constitution

takes a backseat in times of crisis. So, following a bevy of

legal challenges to pandemic-related directives, this Court

Under Supreme Court Rule 37.2(a), amici timely notified counsel

of record of their intent to file this brief.

narrowed the focus. It said a law is not generally

applicable if it treats “any comparable secular activity

more favorably than religious exercise.” Tandon v.

Newsom, 593 U.S. 61, 62 (2021) (per curiam).

Still, courts—like the lower court here—can’t seem to

untangle the general-applicability web. The California

Court of Appeal found no free-exercise problem with

directives requiring congregants to wear masks during

worship, despite exemptions for professional sports and

the film industry. The lower court leaned on the

directives’ seeming general applicability. It drew a

meaningless line between the conduct of professional

athletics and church services, ignoring what matters—

their risks to the government’s asserted interest. So this

Court needs to remind lower courts that they can’t

relegate free exercise to disfavored status.

The Court should grant the petition. The States here

have a strong interest in seeing the Free Exercise Clause

applied as the Framers originally intended. And further

course correction is necessary. Current free-exercise

application departs from the First Amendment’s text and

history. Lower courts need clear guardrails—or they’ll

continue veering into making value judgments and calling

it constitutional adherence.

SUMMARY OF ARGUMENT

I. The First Amendment guards religious exercise.

Text and history confirm that much. Religious exercise

should be unrestrained by government. The government,

on the other hand, is held to an exacting standard

whenever it passes a law burdening free exercise.

II. The Constitution doesn’t relax its grip on

government authority during emergencies. But lower

courts gave governments license to trample fundamental

rights during the COVID pandemic. This Court stepped

in repeatedly to ensure religious exercise was treated at

least as well as comparable secular activities.

III. Lower courts still analyze free exercise challenges

through a value-judgment lens. The lower court did that

here. It recognized that state and county COVID

guidance favored certain activities and individuals. And it

acknowledged that religious worship wasn’t in the favored

category. But it simply concluded that religious worship

and professional athletics, for instance, aren’t comparable

activities and moved on. The Court should grant the

petition to remind lower courts that religious exercise is a

fundamental liberty. It requires more than cursory

review. Even Smith demands that.

IV. If Smith doesn’t require a searching inquiry, the

Court should scrap it. It’s inconsistent with First

Amendment text and history. And it’s difficult to apply

consistently, as evidenced by the lower court here. The

Court should return to strict scrutiny. Smith poses a

barrier to rigorous review. It’s time to tear down the wall.

REASONS FOR GRANTING THE PETITION

Free Exercise is Our First Core Right.

A. The First Amendment secures the broad free

exercise of religion under its plain text, structure,

legislative context, and founding-era history.

“At its heart, the Free Exercise Clause of the First

Amendment protects the ability of those who hold

religious beliefs of all kinds to live out their faiths in daily

life through the performance of religious acts.” Mahmoud

v. Taylor, 606 U.S. 522, 546 (2025) (cleaned up). This scope

comes from the text’s “normal and ordinary meaning.”

Fulton v. City of Philadelphia, 593 U.S. 522, 564-65 (2021)

(Alito, J., concurring) (cleaned up). The First Amendment

provides that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise

thereof.” U.S. CONST. amend. I. “Prohibit” means to

“hinder.” Prohibit, SAMUEL JOHNSON’S DICTIONARY (4th

ed. 1773). “Free” means “unrestrained.” Free, SAMUEL

JOHNSON’S DICTIONARY (4th ed. 1773). “Exercise” means

an “act of divine worship whether public[] or private.”

Exercise, SAMUEL JOHNSON’S DICTIONARY (4th ed. 1773).

And “religion” means personal “virtue” or “a system of

divine faith and worship as opposite to others.” Religion,

SAMUEL JOHNSON’S DICTIONARY (4th ed. 1773); see also

Religion, WEBSTER’S AMERICAN DICTIONARY OF THE

ENGLISH LANGUAGE (1st ed. 1828). So Congress cannot

make any law that hinders unrestrained acts of worship

expressed privately or publicly in virtue or a system of

faith.

In placing the Free Exercise Clause where they did,

the Framers further emphasized their wish for broad

religious exercise protections. The Religion Clauses sit

together. “A natural reading of the First Amendment

suggests

that

the

[Religion]

Clauses

have

‘complementary’ purposes, not warring ones where one

clause is always sure to prevail over the others.” Kennedy

v. Bremerton Sch. Dist., 597 U.S. 507, 510 (2022) (cleaned

up). The clauses join forces for a common goal—limiting

government intrusion on religious exercise. See Everson

v. Bd. of Educ. of Ewing, 330 U.S. 1, 13, 15 (1947). Courts

thus have no “need to generate conflict between an

individual’s rights under the Free Exercise [Clause]” and

other First Amendment clauses. Kennedy, 597 U.S. at

542.

A strong conception of religious liberty is also

consistent with the First Amendment’s place in the

Constitution. “[T]he very purpose of a Bill of Rights was

to withdraw certain subjects from the vicissitudes of

political controversy, to place them beyond the reach of

the majorities and officials and to establish them as legal

principles to be applied by the courts.” W. Va. State Bd.

of Educ. v. Barnette, 319 U.S. 624, 638 (1943). “Freedom

of worship” is one of those rights. Id. And the Religion

Clauses were intended to be unaffected by “elections.” Id.

Legislative context at the ratification supports a broad

construction of free exercise, too. James Madison, “the

leading architect of the religion clauses,” Ariz. Christian

Sch. Tuition Org. v. Winn, 563 U.S. 125, 141 (2011)

(citation omitted), designed them to support “essential

rights” “in the fullest latitude,” James Madison, Letter

from James Madison to the Rev. George Eve, Jan. 2, 1789,

in 11 THE PAPERS OF JAMES MADISON 7 MARCH 1788 — 1

MARCH 1789 404, 404-06 (R. Rutland & C. Hobson eds.

1977), https://tinyurl.com/4r6mrw62. He said that the

First Amendment would prevent the government from

“compel[ling] men to worship God in any manner contrary

to their conscience.” 1 ANNALS OF CONG. 757 (1789) (J.

Gales ed. 1834). Another congressman, Daniel Carroll,

stated that such rights “will little bear the gentlest touch

of governmental hand.” Id. And after considering several

versions of the amendment’s specific language, Congress

ultimately ratified Madison’s synthesis. Michael W.

McConnell, The Origins and Historical Understanding of

Free Exercise of Religion, 103 HARV. L. REV. 1409, 148085 (1990) (recounting the legislative history). Therefore,

Madison’s intentions in drafting the Amendment—that

religious rights be construed broadly—should be given

great weight. See Michael W. McConnell, Free Exercise

Revisionism and the Smith Decision, 57 U. CHI. L. REV.

1109, 1119 (1990).

Were that not enough, historical context further

affirms a broad construction of free exercise. Even before

the Revolution, “[s]eeking to escape the control of the

national church, the Puritans fled to New England,” so

that they could “establish their own modes of worship.”

Hosanna-Tabor Evangelical Lutheran Church and Sch.

v. EEOC, 565 U.S. 171, 182 (2012) (cleaned up). Indeed,

“the popular conception of free exercise on this side of the

Atlantic was more expansive” than conceptions

dominating English philosophy at the time. Origins and

Historical Understanding, supra, at 1444. “[E]arly

American decisions justified protections for church

autonomy” as opposed to government control of church

affairs “in part based on the need to respect religious

institutions’ legitimate and distinct sphere of authority.”

Catholic Charities Bureau, Inc. v. Wis. Labor & Indus.

Rev. Comm’n, 605 U.S. 238, 258 (2025) (Thomas, J.,

concurring).

And constitutional charters routinely

provided for broad free exercise rights subject only to

“peace and safety” carveouts. Fulton, 593 U.S. at 575-76

(Alito, J., concurring). Pre-ratification cases suggest that

broad free exercise—with exemptions from certain

government regulations like oath requirements, military

conscription, and ministerial support—was part of the

legal backdrop. Origins and Historical Understanding,

supra, at 1512.

Thus, the text, structure, legislative history, and

founding-era understandings of the First Amendment

establish “unrestrained” religious exercise.

B. Just as the First Amendment guarantees a broad

free exercise right, it equally narrows government action

burdening that right.

This Court has long limited government actions

burdening free exercise. The Court narrowed regulations

compelling religious solicitation licensure, Cantwell v.

Connecticut, 310 U.S. 296 (1940), affirmations of

repugnant beliefs, Torcaso v. Watkins, 367 U.S. 488

(1961), school attendance, Wisconsin v. Yoder, 406 U.S.

205 (1972), and recission or denial of unemployment

benefits due to religious affiliation, Thomas v. Rev. Bd. of

Ind. Emp. Sec. Div., 450 U.S. 707 (1981); Hobbie v.

Unemployment Appeals Comm’n of Fla., 480 U.S. 136

(1987); Frazee v. Illinois, 489 U.S. 829 (1989). Until

recently, the “door of the Free Exercise Clause [stood]

tightly closed against any governmental regulation of

religious beliefs.” Sherbert v. Verner, 374 U.S. 398, 402

(1963).

C. Smith opened the door. Instead of adhering to the

First Amendment’s command that “Congress … make no

law” prohibiting religious exercise, U.S. CONST. amend. I,

Smith permitted government to make some laws

hindering free exercise. The Court reasoned that laws

burdening religious exercise don’t “offend[]” the First

Amendment, so long as they are “generally applicable”

and have merely “incidental effect” on religious liberty.

Smith, 494 U.S. at 878. Smith’s standard departed from

strict scrutiny—“a settled and inviolate principle of this

Court’s First Amendment jurisprudence.” Id. at 908

(Blackmun, J., dissenting). The Court concluded “that

strict scrutiny of a state law burdening the free exercise

of religion is a ‘luxury’ that a well-ordered society cannot

afford.” Id. at 908-909 (Blackmun, J., dissenting) (cleaned

up). But that’s not how “the Founders thought [of] their

dearly bought freedom from religious persecution.” Id. at

909 (Blackmun, J., dissenting).

Fortunately, the Court pulled back the reins (a bit)

over the next few decades. It added a “minimum

requirement of neutrality” to the “general proposition”

that a law must be generally applicable. Church of the

Lukumi Babalu Aye v. Hialeah, 508 U.S. 520, 533 (1993).

And laws that target religious beliefs can never be neutral.

Id. at 532, 533 (cleaned up). The Court later condemned

“even subtle departures from neutrality on matters of

religion.” Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rts. Comm’n, 584 U.S. 617, 638-39 (2018) (cleaned up).

The Court tightened the general-applicability standard,

too. It said “[a] law is not generally applicable if it invites

the government to consider the particular reasons for a

person’s conduct by providing a mechanism for

individualized exemptions.” Fulton, 593 U.S. at 533

(cleaned up). And “[a] law also lacks general applicability

if it prohibits religious conduct while permitting secular

conduct that undermines the government’s asserted

interests in a similar way.” Id. at 534. These subsequentto-Smith cases somewhat shrunk the general-applicability

standard’s overbreadth.

The Court also clarified that, when government passes

a law that is not neutral and generally applicable, it is

subject to “the strictest scrutiny.” Carson v. Makin, 596

U.S. 767, 780 (2022) (cleaned up). The Court takes this

hard-look approach because the Free Exercise Clause

prohibits laws that “impose special disabilities on the basis

of religious status.”

Trinity Lutheran Church of

Columbia v. Comer, 582 U.S. 449, 461 (2017) (cleaned up).

“To satisfy strict scrutiny, government action must

advance interests of the highest order and must be

narrowly tailored in pursuit of those interests.” Carson,

596 U.S. at 780 (cleaned up). “Put another way, so long as

the government can achieve its interests in a manner that

does not burden religion, it must do so.” Fulton, 593 U.S.

at 541. If the government fails to do so, such laws “will

survive strict scrutiny only in rare cases.” Lukumi, 508

U.S. at 546.

So even post-Smith, laws burdening free exercise

should face a steep standard.

II.

Pandemics—Though Serious—Don’t Reduce or

Eliminate Constitutional Rights.

A. The COVID-19 pandemic changed the world. But

it did not change the Constitution. The high bar

restraining government regulation of religious exercise

isn’t lowered in times of crisis.

In December 2019, initial cases of a “novel []

coronavirus known as SARS-CoV-2” (COVID) were

detected in China. Proclamation No. 9994 of March 13,

2020: Declaring a National Emergency Concerning the

Novel Coronavirus Disease (COVID-19) Outbreak, 85

Fed. Reg. 15337 (Mar. 18, 2020), https://bit.ly/4jAQ4KC.

The virus “spread globally.” Id. By March 2020,

President Trump declared a national emergency as the

disease reached the United States. Id. The States

followed suit. See, e.g., COVID-19 Declarations, FEMA,

https://www.fema.gov/covid-19 (last accessed Jan. 13,

2026) (listing COVID declarations); Cal. Exec. Order No.

N-33-20

(Mar.

19,

2020),

available

https://tinyurl.com/y9envz3e.

Federal and State governments began campaigns to

“slow the spread” of the virus. See, e.g., 15 Days to Slow

the Spread, WHITE HOUSE (Mar. 16, 2020),

https://tinyurl.com/yc5x7ybd; Governor Newsom Orders

Additional Action to Slow Community Transmission,

CAL. DEP’T PUB. HEALTH (last updated Feb. 3, 2021),

https://tinyurl.com/ynhjajcx.

States took varying

approaches. Paul C. Erwin, Kenneth W. Mucheck & Ross

C. Brownson, Different Responses to COVID-19 in Four

US States: Washington, New York, Missouri, and

Alabama, 111 AM. J. PUB. HEALTH 647 (2021).

“California, New York, and Washington acted quickly

with executive orders that … implemented physical and

social distancing practices.” Trudy Henson, Safe at

Home? Legal and Liberty Concerns with Stay-at-Home

Orders, 28 GEO. MASON L. REV. 509, 514 (2021). Executive

orders expanded to mandate home-quarantining, business

and school shutdowns, gathering restrictions, and vaccine,

facemask, social distancing, and sanitation protocols. Id.

These campaigns were supposed to last for 15 days. 15

Days to Slow the Spread, supra. But as 15 days turned to

30—and stretched into months—measures like social

distancing mandates tore “at the social fabric that affords

people support and comfort in distressing times.” Mary

Ann Glynn, ‘15 Days to Slow the Spread’: Covid-19 and

Collective Resilience, 58 J. MANAGE. STUD. 265 (2020).

“Government edicts to implement social distancing and

self-isolation”

resulted

“wide-scale

layoffs,

skyrocketing unemployment, and the grinding to a halt of

many sectors of the economy.” Howell E. Jackson &

Steven L. Schwarcz, Protecting Financial Stability:

Lessons from the COVID-19 Pandemic, 11 HARV. BUS. L.

REV. 193, 199 (2021).

B. Unfortunately, certain States eyed COVID as an

opportunity to crack down on not only social events and

business operations, but also worship services.

Thankfully, “even in a pandemic, the Constitution cannot

be put away and forgotten.” Roman Catholic Diocese of

Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per curiam).

“[T]he forefathers omitted” from our Constitution the

notion that “necessity knows no law.” Youngstown Sheet

& Tube Co. v. Sawyer, 343 U.S. 579, 646, 650 (1952).

“Emergency does not create power. Emergency does not

increase granted power or remove or diminish the

restrictions imposed upon power granted or reserved.”

Home Bldg. & L. Ass’n v. Blaisdell, 290 U.S. 398, 425

(1934).

At the height of COVID, many States distinguished

regulated and non-regulated activities by categorizing

activities as “essential” or “non-essential.” See Virgil H.

Storr et al., Essential or Not? Knowledge Problems and

COVID-19 stay-at-home Orders, 87 S. ECON. J. 1229

(2021), available at https://tinyurl.com/y36tjyne. When an

activity was “essential,” it could “continue operating.” Id.

When it was “non-essential,” the activity was severely

limited or even shut down. Id. Some States labeled

religious gatherings as “non-essential” activities and thus

subjected them to strict restrictions. Josh Blackman, The

“Essential” Free Exercise Clause, 44 HARV. J.L. & PUB.

POL’Y 637, 643-44 (2021). Houses of worship challenged

the regulations on free-exercise grounds. See id.

In considering these challenges, this Court affirmed—

as it should now—that free exercise of religion is

“essential” and doesn’t take a backseat when the

government declares an emergency. The Court limited

the permission Smith gave governments to regulate

religious exercise. It explained in no uncertain terms that

a law cannot “treat any comparable secular activity more

favorably than religious exercise.” Tandon, 593 U.S. at

62. Weighing religious and secular activities “against the

asserted government interest,” the government must

show that “measures less restrictive” of its burdens on

religious exercise “could not address its interest in

reducing the spread of COVID.” Id. at 62-63. So “[w]here

the government permits other activities to proceed with

precautions, it must show that the religious exercise at

issue is more dangerous than those activities even when

the same precautions are applied.” Id. at 63. And

regulations that “contain[] myriad exceptions and

accommodations for comparable activities” must undergo

strict scrutiny. Id. at 64.

Of most relevance here, a regulation is impermissible if

it treats “some comparable secular activities more

favorably than … religious exercise. Tandon, 593 U.S. at

63. For example, a regulation restricting at-home

religious exercise to no more than three households at a

time but “permitting hair salons, retail stores, personal

care services, movie theaters, private suites at sporting

events and concerts, and indoor restaurants to bring

together more than three households at a time” doesn’t

clear this high bar. Tandon, 593 U.S. at 63. That’s

because such a regulation isn’t “neutral and generally

applicable” and “the risks [those] various activities pose”

are similar. Id. at 62.

The Court has repeatedly invalidated laws restricting

free exercise during COVID. For example, in Roman

Catholic Diocese of Brooklyn v. Cuomo, New York

imposed “severe restrictions on attendance at religious

services,” but left open “essential” businesses like

“acupuncture facilities, camp grounds, [and] garages.”

592 U.S. at 15-17. The Court cut down that regulation. Id.

at 20. And it granted, vacated, and remanded similar

cases in California and Colorado. Harvest Rock Church,

Inc. v. Newsom, 141 S. Ct. 889 (Dec. 3, 2020); High Plains

Harvest Church v. Polis, 141 S. Ct. 527 (Dec. 15, 2020).

California is a repeat offender. The Court enjoined

California’s enforcement of a prohibition on indoor

worship services. South Bay United Pentecostal Church

v. Newsom (South Bay II), 141 S. Ct. 716 (2021). And

again, it granted, vacated, and remanded even more free

exercise challenges from California. Gateway City

Church v. Newsom, 141 S. Ct. 1460 (Feb. 26, 2021); Gish

v. Newsom, 141 S. Ct. 1290 (Feb. 8, 2021).

The government cannot “assume the worst when

people go to worship but assume the best when people go

to work.” Tandon, 593 U.S. at 64 (cleaned up). Even

during a pandemic, the Free Exercise Clause “is not

watered down; it really means what it says.” Id. at 65

(cleaned up). But judging from the decision below, lower

courts need yet another reminder that religious exercise

is at least as vital as physical exercise.

III.

California’s Regulations Unconstitutionally

Burden Calvary Chapel’s Free Exercise.

The County’s COVID orders burdened Calvary

Chapel’s religious exercise. Under Smith and Tandon,

that burden wouldn’t violate the First Amendment had

the County applied its rules across the board. But it

didn’t. The County exempted all sorts of secular

activities—without explaining how religious worship

posed a greater public health threat. Those comparablesecular-activity exceptions should have been subjected to

strict scrutiny. But the lower court dismissed any notion

that athletics, for example, are comparable to singing

praises. That misapplication of Smith comes with dire

consequences. The government dropped the hammer,

imposing more than $1 million in fines—and making an

example out of a house of worship.

The Court should grant the petition to remind lower

courts that secular-activity comparisons rise and fall on

the government’s asserted interest and not on apples-toapples activity categorization.

A. During the pandemic, the County issued a “safety

measures order” requiring “[a]ll persons” to “follow the

health officer’s mandatory directive on use of face

coverings.” Pet.App.33a. And the mandatory directive

said “[a]ll residents, businesses, and governmental

entities must follow the California Department of Public

Health’s guidance for use of face coverings.” Pet.App.33a.

That guidance, in turn, imposed varying masking

requirements dependent on vaccination status and

whether a person was indoors or outdoors. Pet.App.33a34a.

These directives might seem generally applicable on

first blush, but the devil’s in the details. The state

guidance exempted “specific settings” from “face covering

requirements”—bureaucratic speak for a rule rife with

exceptions. Pet.App.34a. People undergoing medical or

even cosmetic services involving the nose or face were

exempted. Pet.App.34a. Hearing-impaired people were

exempted.

Pet.App.35a.

Young children, too.

Pet.App.34a. The County also exempted certain activities.

Restaurant customers could “remove their face coverings

once their food or drinks [were] served and … leave them

off until” their meal was finished. Pet.App.38a. Like the

state guidance, the County’s directive permitted mask

removal “while receiving a personal care service indoors

or outdoors.” Pet.App.39a. And, coincidentally, in the

home county of the San Francisco 49ers, collegiate and

professional athletes could “remove their face coverings

… while … actively engaged in athletic activity.”

Pet.App.38a.

Religious worship, however, was absent from both the

state’s and county’s exemptions lists. That exclusion is a

subtle—but unmistakable—“religious gerrymander.”

Lukumi, 508 U.S. at 535 (cleaned up). Commercial

activities received favored status. But religious worship

was cast aside.

B. Calvary Chapel refused to comply with the

directives. And for good reason. The church believes in a

literal reading of the apostle Paul’s letter to the

Corinthians: “And we all, who with unveiled faces

contemplate the Lord’s glory, are being transformed into

his image with ever-increasing glory, which comes from

the Lord, who is the Spirit.” 2 Corinthians 3:18 (New

International Version). So the church believed the

directives infringed on its “form of worship.” Cantwell,

310 U.S. at 303.

The lower court disagreed. It took a cursory look at

the exempted individuals and activities—“children,

collegiate and professional athletic activity, restaurant

customers while eating, … and individuals while

undergoing personal services involving the face”—and

concluded that “these secular activities were [not]

comparable to the church activities.” Pet.App.39a. But

that analysis misapplies Smith and Tandon.

The lower court erred by comparing the activities

rather than their contagion-spreading risks. As this Court

has explained—repeatedly—“whether two activities are

comparable for purposes of the Free Exercise Clause

must be judged against the asserted government interest

that justifies the regulation at issue.” Tandon, 593 U.S. at

62 (cleaned up). “A law … lacks general applicability if it

prohibits religious conduct while permitting secular

conduct that undermines the government’s asserted

interests in a similar way.” Fulton, 593 U.S. at 534. Put

another way, “[c]omparability is concerned with the risks

various activities pose, not the reasons why people

gather.” Tandon, 593 U.S. at 62 (cleaned up).

How did the lower court contrast COVID-transmission

risk from salon facial services with the risk posed by

religious worship? It didn’t. Despite acknowledging that

the County’s interest was a “local health emergency” from

“a highly contagious viral disease,” the lower court never

engaged with transmission risk. Pet.App.2a. That absent

analysis was necessary. Without it, the lower court’s

decision cannot stand.

C. It’s not hard to conclude the County’s exempted

activities pose a similar transmission risk to religious

worship. A simple hypothetical illustrates the point.

NFL teams dress 48 players each week. Nick

Igbokwe, How many players can dress for an NFL game?

Revisiting the league's new rules and regulations for

2023, SPORTSKEEDA, https://tinyurl.com/yc455uvu (May

31, 2024, 8:11 a.m. GMT). And seven officials referee each

game. Officials' Responsibilities & Positions, NFL,

https://tinyurl.com/435c3s7v (last visited Jan. 13, 2026).

Those 103 individuals come together for hours each

Sunday during the season. They huddle up, call plays,

crash into each other, call fouls, and hand or throw a ball

to one another. State and county guidance permits all that

without a mask. But if those same 103 individuals entered

a church, sat in pews, heard a minister preach, sang

worship songs, and prayed together, then they violate that

same guidance. And could be on the hook for substantial

fines.

That’s not right. A football exemption favors athletic

exercise over religious exercise. And considering the

other exemptions, it favors commercial exercise over

religious exercise. So the state and county orders aren’t

generally applicable.

D. Because the COVID orders aren’t generally

applicable, strict scrutiny applies. South Bay II, 141 S. Ct.

at 717-18 (statement of Gorsuch, J.) (stating that strict

scrutiny applies when the government “impose[s] more

stringent regulations on religious institutions than on

many businesses”).

“Strict scrutiny is a searching examination, and it is the

government that bears the burden” of proof. Fisher v.

Univ. of Tex. at Austin, 570 U.S. 297, 310 (2013).

Specifically, the government must establish that the law is

“justified by a compelling governmental interest and …

narrowly tailored to advance that interest.” Lukumi, 508

U.S. at 531–32.

The State and County can’t satisfy that burden. For

starters, their “purpose is belied … by the provisions of

the” orders because they are “underinclusive.” First Nat’l

Bank of Bos. v. Bellotti, 435 U.S. 765, 793 (1978). Both

state and county guidance exempt myriad activities

involving individuals in close quarters. They’re “not as

concerned with the close physical proximity of hairstylists

… to their customers, whom they touch and remain near

for extended periods.” South Bay II, 141 S. Ct. at 718

(statement of Gorsuch, J.). That’s the sort of “telltale

sign[] this Court has long used to identify laws that fail

strict scrutiny.” Id.

Neither government explains why “narrower options”

like cleaning, plexiglass barriers, or “a reasonable limit on

the length of indoor religious gatherings would fail to meet

its concerns.” South Bay II, 141 S. Ct. at 719 (statement

of Gorsuch, J.). If those options are fine for personal care

services, then they’re sufficient for religious worship, too.

And the governments could have required COVID-19

testing protocols—like the State did when it exempted

Hollywood from its guidance.

South Bay United

Pentecostal Church v. Newsom, 985 F.3d 1128, 1145 (9th

Cir. 2021), vacated by 141 S. Ct. 2563. A policy that relaxes

regulation for solely economic reasons—to the exclusion

of religious reasons—can’t be “narrowly tailored” to

“advance[] interests of the highest order.” Mahmoud, 606

U.S. at 565 (cleaned up).

The Court should grant the petition to fix the lower

court’s error.

IV.

If Need Be, Smith Should Be Overruled.

When a law is neutral and generally applicable, this

Court has at times upheld it. See, e.g., Smith, 494 U.S. at

878-82. This case does not involve a neutral and generally

applicable law given California’s many comparable carveouts. But if the Court believes otherwise, this case shows

exactly why Smith is “ripe for reexamination.” Fulton,

593 U.S. at 545 (Alito, J., concurring). At least six factors

demand overturning Smith.

A. First, Smith “can’t be squared with the ordinary

meaning of the text of the Free Exercise Clause.” Fulton,

593 U.S. at 553 (Alito, J., concurring). As previously

explained, the Free Exercise Clause’s text prohibits

government from making any law hindering acts of

worship expressed privately or publicly in virtue or a

system of faith. See pp. 3-4, supra. This broad

formulation of free exercise contravenes Smith, which

allows laws to burden free exercise so long as they equally

burden activities not found in the Bill of Rights. 494 U.S.

at 879. If the First Amendment doesn’t provide any

greater protection to religious exercise than is generally

afforded to, say, indoor dining, then what’s the point?

Second, Smith is inconsistent with the structure of the

First Amendment and Bill of Rights.

The First

Amendment was meant to grant individuals broad freeexercise rights and place hardline limits on how the

government treated religion. See p. 4, supra. Its place at

the front of the Bill of Rights reveals even more. The Bill

of Rights was passed to act as a powerful restraint on

government regulations after the stench of monarchy

assailed the law. See pp. 4-5, supra. Yet, Smith

greenlights capacious “generally applicable” regulations.

494 U.S. at 878.

Third, Smith doesn’t align with “prevalent

understanding of the scope of the free-exercise right at

the time of the First Amendment’s adoption.” Fulton, 593

U.S. at 553 (Alito, J., concurring). Founding-era actors

were well-aware of broad free-exercise rights. See pp. 56, supra. They sought to preserve that understanding in

the First Amendment. See p. 6, supra. Smith undercuts

that understanding by allowing the government to

trample free exercise rights so long as they do not appear

targeted or discriminatory. See Lukumi, 508 U.S. at 532.

Fourth, Smith is inconsistent with precedents before it

and after it. Smith supplanted cases holding every law

burdening religious liberty to strict scrutiny. See, e.g.,

Sherbert, 374 U.S. at 406. And now, Smith’s standard has

led to inconsistent applications where exemptions are

granted despite seeming neutrality and general

applicability. See, e.g., Hosanna-Tabor, 565 U.S. at 190

(exception to the Americans with Disabilities Act); Our

Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S.

732, 762 (2020) (same and exception to Age Discrimination

in Employment Act). So Smith does not settle the score—

it distracts from the First Amendment’s plain meaning.

Fifth, Smith has “not provided a clear-cut rule that is

easy to apply.” Fulton, 593 U.S. at 553-54 (Alito, J.,

concurring). It has created confusion. Because the Court

uses language like “hybrid rights” to describe free

exercise exemptions, it must come up with rules to discern

whether a rule “targets” religion, and must define the

appropriate nature and scope of exemptions. Id. at 60309. Smith has not led to clarity, but more uncertainty.

Sixth, “experience has disproved the Smith majority’s

fear that retention of the Court’s prior free-exercise

jurisprudence would lead to anarchy.” Fulton, 593 U.S. at

554 (Alito, J., concurring) (cleaned up). On the contrary,

Federal and State legislatures have long since sought to

“abandon[]” this standard. Kennedy, 597 U.S. at 534.

Smith’s ink had scarcely dried before Congress passed the

Religious Freedom Restoration Act. Congress recounted

that the Framers “recogniz[ed] free exercise of religion as

an unalienable right” and “secured its protection in the

First Amendment.” 42 U.S.C. § 2000bb(a)(1) (cleaned up).

It therefore sought to overturn Smith by “restor[ing] the

compelling interest test set forth” in Sherbert and Yoder.

Id. § 2000bb(b)(1). It expanded the compelling interest

test’s coverage when it passed the Religious Land Use and

Institutionalized Persons Act. Id. § 2000cc. In droves,

States have passed free religious exercise laws subjecting

the government to a strict-scrutiny-like inquiry.2 And

See ALA. CONST. art. I, § 3.01; ARK. CODE ANN. § 16-123-404; CONN.

GEN. STAT. ANN. § 52-571b; FLA. STAT. § 761.03; GA. CODE ANN. § 5015A-1; IDAHO CODE ANN. § 73-402; 775 ILL. COMP. STAT. 35/15; IND.

CODE § 34-13-9-8; IOWA CODE ANN. § 675.4; KAN. STAT. ANN. § 605304; KY. REV. STAT. ANN. § 446.350; LA. STAT. ANN. § 13:5233; MISS.

CODE ANN. § 11-61-1; MO. ANN. STAT. § 1.302; MONT. CODE ANN.

§ 27-33-105; NEB. REV. STAT. § 20-703; N.D. CENT. CODE ANN. § 1402.4-08.1; OKLA. STAT. tit. 51, § 253; 71 PA. CONS. STAT. § 2404; 42 R.I.

GEN. LAWS § 80.1-3; S.C. CODE ANN. § 1-32-40; S.D. CODIFIED LAWS

many more States’ highest courts require a strict scrutiny

standard under State law.3 So the federal and State

political and State judicial branches have abandoned

Smith. Yet, “[l]ike some ghoul in a late-night horror

movie” Smith “stalks” this Court’s free-exercise

jurisprudence. Lamb’s Chapel v. Ctr. Moriches Union

Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J.,

concurring).

For these reasons, even stare decisis can’t save Smith.

See Fulton, 593 U.S. at 595-614 (Alito, J., concurring).

B. “Yet what should replace Smith?” Fulton, 593 U.S.

at 543 (Barrett, J., concurring). Fortunately, the Court

doesn’t have to look far.

Many scholars have debated a Smith replacement.

Some propose a text, history, and tradition test. Branton

J. Nestor, Revisiting Smith: Stare Decisis and Free

Exercise Doctrine, 44 HARV. J. L. & PUB. POL’Y 403, 455

(2021). Others believe there should be a “balance between

burdens on religion and government, with a thumb on the

scale for protecting religion.” Douglas Laycock & Thomas

C. Berg, Protecting Free Exercise Under Smith and After

Smith, 2021 CATO SUP. CT. REV. 33, 56.

But perhaps the simplest avenue is just returning to

what worked before. The Court explored levels of

§ 1-1A-4; TENN. CODE ANN. § 4-1-407; TEX. CIV. CODE ANN.

§ 110.003; UTAH CODE ANN. § 63L-5-201; VA. CODE ANN. § 57-2.02;

W. VA. CODE § 35-1A-1; WYO. STAT. ANN. § 9-29-103.

See James v. Heinrich, 960 N.W.2d 350, 369 (Wis. 2021); In Matter

of Tiffany O., 467 P.3d 1076, 1081-82 (Alaska 2020); Hawai‘i v.

Armitage, 319 P.3d 1044, 1066-68 (Haw. 2014); Humphrey v. Lane,

728 N.E.2d 1039, 1043 (Ohio 2000); Munns v. Martin, 930 P.2d 318,

321-22 (Wash. 1997); Attorney General v. Desilets, 418 Mass. 316, 32023 (Mass. 1994); Rupert v. City of Portland, 605 A.2d 63, 65-67 (Maine

1992); Cooper v. French, 460 N.W.2d 2, 8-10 (Minn. 1990).

scrutiny nearly a century ago in United States v. Carolene

Products Co., 304 U.S. 144 (1938). That inquiry led the

Court to develop the rational-basis test. Id. at 152

(“[R]egulatory legislation affecting ordinary commercial

transactions is not … unconstitutional unless” its

character “preclude[s] the assumption that it rests upon

some rational basis.”). And the famous “footnote 4”

suggested a “narrower scope for operation of the

presumption of constitutionality when legislation appears

on its face to be within a specific prohibition of the

Constitution.” Id. at 152 n.4. It wasn’t long before the

Court started speaking of “suspect” classifications and the

need for “the most rigid scrutiny.” McLaughlin v.

Florida, 379 U.S. 184, 192 (1964) (cleaned up). And the

Court eventually announced that “a law that imposes a

substantial burden on the exercise of religion must be

narrowly tailored to serve a compelling interest.” Fulton,

593 U.S. at 556 (Alito, J., concurring) (emphasis added)

(citing Sherbert, 374 U.S. at 403, 406). In other words, preSmith, laws substantially burdening free exercise had to

satisfy strict scrutiny.

The Court could return to Sherbert and stop there.

Strict scrutiny is a good fit for free exercise challenges.

The Free Exercise Clause’s text ensures that government

cannot hinder acts of personal or public worship. And the

structure of the Free Exercise Clause’s placement in the

First Amendment points to restraining government

action—not the worshipper. So free exercise rights

should be understood as “protected reason[s]” for

exclusion from certain government regulation. Stephanie

Barclay, Constitutional Rights as Protected Reasons, 92

U. CHI. L. REV. 1179, 1183 (2025). The Free Exercise

Clause operates as a high barrier the government must

scale.

Strict

scrutiny

Everest-like—not

insurmountable, but a fierce test for those bold enough to

endeavor. It’s also the test applied to regulations aimed

at other First Amendment rights.

Sherbert’s threshold substantial-burden inquiry may

require factfinding, but courts do that regularly. And this

Court need not iron out every wrinkle now. Returning

Free Exercise Clause jurisprudence to its textual and

historical understanding is enough.

Strict scrutiny protects religious exercise from

disfavored treatment absent narrowly tailored means

justified by compelling ends.

Reestablishing this

framework cuts off any notion that the First Amendment

“offers

nothing

than

protection

from

discrimination.” Fulton, 593 U.S. at 543 (Barrett, J.,

concurring).

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted.

JOHN B. MCCUSKEY

Attorney General

OFFICE OF THE

WEST VIRGINIA

ATTORNEY GENERAL

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25305

cdavid@wvago.gov

(304) 558-2021

CALEB B. DAVID

Counsel of Record

Deputy Solicitor General

MATT K. NIU

Caldwell Fellow

Counsel for Amicus Curiae State of West Virginia

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

STEPHEN J. COX

Attorney General

State of Alaska

JAMES UTHMEIER

Attorney General

State of Florida

CHRISTOPHER M. CARR

Attorney General

State of Georgia

BRENNA BIRD

Attorney General

State of Iowa

KRIS W. KOBACH

Attorney General

State of Kansas

LIZ MURRILL

Attorney General

State of Louisiana

LYNN FITCH

Attorney General

State of Mississippi

CATHERINE HANAWAY

Attorney General

State of Missouri

AUSTIN KNUDSEN

Attorney General

State of Montana

MICHAEL T. HILGERS

Attorney General

State of Nebraska

DREW H. WRIGLEY

Attorney General

State of North Dakota

DAVE YOST

Attorney General

State of Ohio

GENTNER DRUMMOND

Attorney General

State of Oklahoma

ALAN WILSON

Attorney General

State of South Carolina

JONATHAN SKRMETTI

Attorney General

State of Tennessee

DEREK BROWN

Attorney General

State of Utah

MARTY J. JACKLEY

Attorney General

State of South Dakota

KEN PAXTON

Attorney General

State of Texas

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.