CALVARY CHAPEL DAYTON VALLEY,
STEVE SISOLAK, in his official capacity as Governor of Nevada, et al.,
The Minnesota Catholic Conference, the Minnesota North District of the Lutheran Church–Missouri Synod, the Minnesota South District of the Lutheran Church–Missouri Synod, the Roman Catholic Diocese of Madison, Samuel A. Fryer Yavneh Academy, Montebello Christian School, and Saint Joseph Academy (collectively, “amici”) are churches or 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 disparate treatment it faced, to a point, but each remains subject to the specter of renewed dis-favor as public officials cast about for gatherings and activities they perceive as “low value” or having mini-mal 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 Petitioner is experiencing and will continue to experience if this Court does not step in to protect Petitioner’s most cherished freedoms. Amici submit this brief to illustrate for the Court the pervasive, systematic, and nationwide ex-tent 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).
SUMMARY OF ARGUMENT
The restrictions on religious exercise imposed by Respondents and governments throughout the country could never survive the exacting constitutional scrutiny prescribed by this Court over the past century for laws trenching on core civil liberties. Under that precedent, laws subjecting religion to disparate treatment 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 that their actions are narrowly tailored to that interest when they restrict religious activity but allow congruent secular activities to persist.
Recognizing that their actions cannot survive nor-mal constitutional standards, Respondents 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 Jacob-son v. Massachusetts, contending in essence that there are two constitutions: one for times of peace and one for times of pandemic. That approach finds no support in the precedent of this Court—including Jacobson—and would endanger the very concept of fundamental and well-ordered liberties.
Like Petitioner, amici—churches or religious schools in Minnesota, Wisconsin, and California—have experienced firsthand the effects of state and local governments’ sweeping use of their emergency powers. Asserting plenary discretion under 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, Catholic, and Christian 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 rooms for secular activities, but those very same people—some-times in those very same rooms—are prohibited from gathering in worship.
This Petition presents an opportunity for the Court to reaffirm that constitutional standards of review and fundamental rights are not weakened during a pandemic. Amici recognize and appreciate that the Court has recently taken a step in this direction by acknowledging that “effectively barring many from attending religious services strike[s] at the very heart of the First Amendment’s guarantee of religious liberty” and thus government restrictions having that effect are due “serious examination.” Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *3 (U.S. Nov. 25, 2020) (per curiam). However, even after Diocese of Brooklyn, confusion in the lower courts regarding Jacobson persists. See, e.g., Kentucky ex rel. Danville Christian Acad., Inc. v. Beshear, No. 20-6341, 2020 WL 7017858, at *3 (6th Cir. Nov. 29, 2020) (suggesting that Jacobson alters the strict scrutiny analysis of laws held to not be of general applicability). Accordingly, the Court should use this Petition as an opportunity to make clear in a merits opinion what was implicit in Diocese of Brooklyn: Jacobson does not sup-plant or, in any way, alter the strict scrutiny analysis applied to laws infringing religious liberties during a pandemic.
This Court should therefore grant certiorari before judgment to correct the error of the lower courts in applying Jacobson.