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Is SCOTUS Done with Emergency COVID-19 Free Exercise Litigation?

The past 96 hours have been very busy for COVID-19 Free Exercise Clause litigation.

On Friday, January 22, a Ninth Circuit panel upheld California’s “Regional Stay at Home Order and Tier 1 of the Blueprint.” This measure prohibited all indoor worship, but permitted outdoor worship. (I wrote about those directives here, here, here, here, and here). The South Bay United Pentecostal Church no doubt began to prepare another emergency application to the Supreme Court.

At 9:30 a.m. on Monday, January 25, the Supreme Court denied Calvary Chapel’s petition for certiorari before judgment. The Court did not see fit to review this case from Nevada a second time. I think the majority said what they wanted to say in Diocese of Brooklyn.

Shortly thereafter, another Ninth Circuit panel denied Harvest Rock’s application for an injunction pending appeal. This panel found itself bound by the three-day old South Bay circuit precedent. Judge O’Scannlain dissented, contending that South Bay was “woefully out of step with” Roman Catholic Diocese of Brooklyn. He wrote:

A simple, straightforward application of these controlling cases compels what should be the obvious result here: California’s uniquely severe restrictions against religious worship services—including its total ban against indoor worship in nearly the entire state—are patently unconstitutional and should be enjoined. The court’s refusal to do so in South Bay cries out for correction.

And shortly thereafter, California lifted the regional stay at home order. Now, local authorities can impose their own measures. Was this change made based on #science? I would not be surprised if this timing was occasioned by the Ninth Circuit’s double-rulings, and the Supreme Court’s cert denial. Now California can argue, for the umpteenth time, that an emergency application to the Court is moot. Sense a pattern? The game of whack-a-mole continues.

At this juncture, I think the Supreme Court is finished with emergency COVID-19 Free Exercise Clause litigation. The Court may still consider some cases that arise in the normal course–for example, a dispute that seeks damages, rather than an injunction. But the shadow docket will likely cool off in a shady penumbra for some time.

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Josh Blackman

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