If hard cases make bad law, emergencies make even worse law. Our case books are littered with awful judicial decisions authorizing presidents and governors to violate core constitutional rights in the name of coping with crises. President Franklin Delano Roosevelt's decision to intern more than 100,000 Americans of Japanese descent following the attack on Pearl Harbor was upheld by liberal justices. President Abraham Lincoln's decision to detain citizens and deny them access to the writ of habeas corpus was upheld during the Civil War. Now that that we are experiencing a pandemic crisis, if history is any guide, we can expect some bad decisions.
Consider the recent decisions of the Supreme Court to deny emergency relief to churches that have been subjected by states to restrictions that are more onerous than to casinos and other secular institutions and businesses. The churches sought emergency relief under their First Amendment right of the free exercise of religion. The Supreme Court, in two 5-4 decisions, has denied that relief, with the swing vote being cast by the deeply religious and strongly conservative Chief Justice John Roberts, who joined the four liberal justices. The other four conservative justices dissented in both cases.
The first amendment's approach to religion is anything but clear or simple. It contains several relevant provisions: it prohibits "an establishment of religion." It also protects against laws "prohibiting the free exercise" of religion. Finally, it guarantees "the right of the people peaceably to assemble," although that provision seems geared more to political than religious assemblies — a distinction that may be difficult to make in an age in which everything, including religion, is political.
What does seem clear from these provisions and our long, if not always successful, effort to reconcile them in judicial decisions, is that the government may not discriminate against religion in general or any particular religion in particular. It need not exempt religious institutions or practitioners from rules that are generally applicable to similarly situated institutions or citizens, but it may not impose especially onerous rules on religion that limit its free exercise.
It is against this general background that the current claims of the churches must be analyzed. In my view, no state should be allowed to impose more onerous crowd restrictions on churches than on casinos. Under the first amendment, churches hold a higher protected status than comparably sized and ventilated businesses. So, as an initial matter, it would appear unconstitutional for a state to prohibit church assemblies of more than 50 congregants, regardless of the size of the building, while allowing a casino to host up to half their usual number of gamblers, which in some cases can exceed 1,000. But Chief Justice Roberts introduced a judicial consideration that went beyond that initial consideration, namely the right of governors not to be second-guessed by judges during a pandemic emergency:
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts "[t]he safety and the health of the people" to the politically accountable officials of the States "to guard and protect." Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials "undertake to act in areas fraught with medical and scientific uncertainties," their latitude "must be especially broad." Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an "unelected federal judiciary," which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonino Metropolitan Transit Authority, 409 U.S. 528, 545 (1985).
This is especially true where, as here, a party seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.
Justice Brett Kavanaugh responded to the Chief justice's invocation of emergency powers as follows:
But COVID–19 is not a blank check for a State to discriminate against religious people, religious organizations, and religious services. There are certain constitutional red lines that a State may not cross even in a crisis. Those red lines include racial discrimination, religious discrimination, and content-based suppression of speech. This Court's history is littered with unfortunate examples of overly broad judicial deference to the government when the government has invoked emergency powers and asserted crisis circumstances to override equal-treatment and free-speech principles. The court of history has rejected those jurisprudential mistakes and cautions us against an unduly deferential judicial approach, especially when questions of racial discrimination, religious discrimination, or free speech are at stake.
Justice Kavanaugh gets the better of the argument in my view. It is true that during the course of an emergency, courts tend to defer to executive powers, but the longer-term verdict of history often condemns those emergency decisions. Back in the early 1970s I wrote a series of articles about emergency powers in which I predicted, based on the history, what courts are likely to do in future emergencies:
What then could we reasonably expect from our courts if any American president (or governor) during a period of dire emergency were once again to suspend important constitutional safeguards? Our past experience suggests the following outline: The courts – especially the Supreme Court – will generally not interfere with the executive handling of a genuine emergency while it still exists. They will employ every technique of judicial avoidance at their disposal to postpone decision until the crisis has passed. (Indeed, though thousands of persons have been unlawfully confined during our various periods of declared emergency, I am aware of no one where the Supreme Court has ever actually ordered anyone's release while the emergency was still in existence.) The likely exceptions to this rule of judicial postponement will be cases of clear abuse where no real emergency can be said to exist, and cases in which delay would result in irrevocable loss of rights, such as those involving the death penalty.
The current cases seem to bear out my prediction. But there is a difference between predicting and justifying. I cannot constitutionally justify restrictions on religious exercise that are more demanding than restrictions on comparable non-religious activities.