Jacob Hoback, Associate Member, University of Cincinnati Law Review*
One of the first Supreme Court cases that law students read is Marbury v. Madison. In that landmark decision, Chief Justice Marshall first articulated the principle of judicial review, under which courts have the authority to strike down laws that they rule unconstitutional.
Although Marbury itself is rarely the subject of controversy, the use (and potential misuse) of judicial review is. At the turn of the 20th century, the Supreme Court often struck down laws that regulated labor and the economy. Later, the Court struck down laws that infringed on unenumerated rights, such as the right to privacy. Now, a new era exists: the COVID-era. To slow the spread of COVID, state governments have restricted social gatherings. But sometimes in doing so, those governments acted unconstitutionally by infringing on fundamental human rights. Consequently, the Supreme Court struck such laws down.
When the Court strikes down laws that aim to achieve a particular interest, advocates of the interest often assert that the Court has abused its power by acting as a super-legislature. That was the argument of the dissent in South Bay United Pentecostal Church v. Newsom. There, California Governor Gavin Newsom issued an executive order that completely prohibited indoor worship in places where COVID was most prevalent. Despite the scientific evidence that proved that COVID was more likely to be transmitted in churches, the Court struck the order down by a 6-3 majority. The dissent, however, argued that the Justices in the majority were not deferential enough to the scientists who testified on the record.
This Article argues that the majority did not abuse its power by striking down the order. State governments do have the authority to handle COVID in the way that they see fit, but they are bound by the Constitution in doing so. It is then the Court’s job to determine whether the government acted unconstitutionally, and whether South Bay was right or not, that is all the Justices did.
This Section provides a background of the Court’s free exercise jurisprudence and a summary of the Court’s recent decision in South Bay.
A. The Free Exercise Clause
The First Amendment of the Constitution prohibits the government from “respecting an establishment of religion, or prohibiting the free exercise thereof.” In its jurisprudence, the Supreme Court has a simple test to determine whether a law that substantially burdens religious activity is unconstitutional: if the law is neutral and generally applicable, it will undergo rational basis review, but if the law is not, it will undergo strict scrutiny. Rational basis review is usually an easy test for the government; the government must only show that the government has a legitimate interest and that there is a rational basis between the law’s means and its ends. On the other hand, strict scrutiny is more rigorous; the government must show that its law is designed to achieve a compelling governmental interest and that the government narrowly tailored the law to further that interest. Simply put, laws that are neutral and generally applicable are typically constitutional, whereas laws that permit secular conduct—but not religious conduct—are not.
B. South Bay United Pentecostal Church v. Newsom
The plaintiffs in South Bay argued that the law was unconstitutional since it closed houses of worship but not retail stores. Like most state governments, California had adopted a system that dictated which activities could operate when. In areas where COVID was the most severe, indoor religious activity was completely prohibited. Retail stores, however, were able to operate at 25% capacity. Consequently, the Court applied strict scrutiny and ruled that the law was unconstitutional since it was not narrowly-tailored to fit the state’s interest. In contrast, the dissent concluded that strict scrutiny did not apply since the scientific findings revealed that retail stores were less dangerous than houses of worship.
1. The Holding
South Bay was interesting because there was no majority opinion. Instead, the Justices each signed onto a concurring or dissenting opinion. This Part only discusses Justice Gorsuch’s concurrence.
In his concurrence, Justice Gorsuch concluded that the order was unconstitutional since the law was not neutral and generally applicable. In attacking the neutrality of the order, he emphasized how California placed religious groups in their own category. Moreover, he highlighted that while California completely prohibited indoor worship, it allowed retail stores to function at lighter capacity. Also, Justice Gorsuch emphasized that California was the only state that had banned all religious gatherings.
Because Justice Gorsuch concluded that the order was not neutral and generally applicable, he applied strict scrutiny. In doing so, he reasoned that reducing the spread of COVID was a compelling governmental interest, but he did note that the factors involved in religious houses of worship that posed a serious risk (mixing households in close proximity for extended periods of time) existed in other secular activities. Further, Justice Gorsuch emphasized that California never explained why it had to enact a total ban, thus failing the narrowly-tailored requirement. Therefore, he concluded that the order was unconstitutional.
2. The Dissent
Justice Kagan, joined by Justice Breyer and Justice Sotomayor, argued that the Court should have been deferential to the state government, explaining that “Justices of the Court are not scientists.” The dissent argued that California’s ban on church services was neutral and generally applicable—satisfying the requirement for a law that burdens religion under modern free exercise jurisprudence. Most critically to the dissent, medical experts testified that theaters, churches, and larger public gatherings were more dangerous than places like retail stores. Accordingly, the dissent reasoned that California was justified in closing churches but not other venues.
Additionally, the dissent sharply criticized the majority for not deferring to the legislature. While the dissent believed that the Court was in legal error, it also feared that the decision by the Court would impair states in dealing with COVID as they saw fit. Interestingly, the dissent quoted Chief Justice Roberts in an earlier case with the same plaintiffs, saying that “judges ‘lack the background, competence, and expertise to assess public health.’”
Finally, the dissent expressed concerns over separation of powers. Quoting Chief Justice Roberts again, the dissent explained that the Justices were “not accountable to the people.” Moreover, it emphasized that the Justices would not have to face repercussions by striking down a public health measure since the Supreme Court was closed at the time. Finally, the dissent concluded by asserting that the Court in its decision “forgoes ahead regardless, insisting that science-based policy yield to judicial edict.”
Science does not dictate policy. Of course, it would have been inappropriate for the Justices to completely disregard the scientific evidence presented in the case. Nevertheless, holding that the order was unconstitutional does not contradict the evidence because although scientific findings influence policy decisions, they certainly do not dictate them. Consider something as simple as driving. If vehicle manufacturers designed cars that had square tires, the rate of traffic accidents would exponentially decline. Yet policy experts would never recommend such a strict rule because almost all Americans accept the risk of driving since they value efficiency over the small risk of serious bodily injury.
The same holds true with the Constitution. It exists to preserve the strongest American values so that even a bare majority could not infringe on fundamental rights. To ensure that those values are preserved, courts use tests to determine whether a law that undermines a fundamental right is justified. Which test is applied is dependent on the priority of the right at stake. For example, the medical experts in South Bay explained that COVID is more likely to spread in theaters than retail stores. Since there is no right to visit a theater, courts apply a lower standard of scrutiny, under which the law is usually upheld. Accordingly, the different classification of a theater and a shopping mall would probably be permissible. But when a law undermines a constitutional right, the standard for the government is higher.
Indeed, that is what South Bay was all about. The disagreement between the Justices was not whether the science was accurate but rather which level of scrutiny applied. Free exercise jurisprudence is hardly settled, and there is still debate about the scope of the law that governs the Free Exercise Clause today. In this case, churches and theaters were left open, but retail stores were closed. Under the dissent’s understanding of Smith, because the secular venues that posed the same risk as churches were closed, the law was neutral and generally applicable. Under the majority’s understanding, however, because retail stores were able to operate, the law was not neutral and generally applicable. Reasonable people might disagree which reading of the law is correct, but regardless of the answer, the underlying question of which standard of scrutiny applies is not a scientific inquiry, but a legal one.
The different levels of scrutiny resulted in different legal outcomes. Here, forty-nine states allowed worship, but California was the only state to impose such harsh restrictions against religious activity, and it provided no reason for doing so. As Chief Justice Roberts said in his opinion, “[T]he State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.” Consequently, the majority held that the law was unconstitutional. This analysis is not a scientific formula, nor is it an epidemiological conjecture; it is the application of strict scrutiny. Determining whether a law passes strict scrutiny is not a job for scientists in lab coats but rather jurists in robes. Therefore, the dissent was incorrect in suggesting that the Justices simply just disregarded the science.
The majority in South Bay did not abuse its power. There are very thin lines that separate when courts should and should not exercise their power to strike down laws. Nevertheless, when a constitutional right is at issue, courts can and must step in. Under the Constitution, there is a fundamental right to the free exercise of religion. No mathematic formula or scientific hypothesis can declare whether a government has violated that right or not; that is a decision for the judiciary.
* I would like to thank Rufus King Professor of Constitutional Law Professor A. Christopher Bryant for his substantial help in writing this Article.
 5 U.S. 137 (1803).
 Id. at 177-79.
 See e.g., Lochner v. New York, 198 U.S. 45 (1905); Hamer v. Dagenhart, 247 U.S. 251 (1918).
 See e.g., Griswold v. Connecticut, 381 U.S. 479 (1965).
 See e.g., Roman Catholic Diocese of New York v. Cuomo, 592 U.S. ___ (2020).
 592 U.S. ___ (2021) (Kagan, J., dissenting).
 U.S. Const. amend. I., incorporated against the states in Cantwell v. Connecticut, 310 U.S. 296 (1940).
 Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 879 (1990).
 South Bay, 592 U.S. ___.
 South Bay, 592 U.S. ___ (Gorsuch, J., concurring).
 Id. (Kagan, J., dissenting).
 Id. (Gorsuch, J., concurring) (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534-535 (1993)).
 Id. (Kagan, J., dissenting).
 Id. (“Is it that the Court does not believe the science, or does it think even the best science must give way?”).
 Id. (quoting South Bay United Pentecostal Church v. Newsom, 590 U.S., at ___ (Roberts, C.J., dissenting)).
 Id. (quoting South Bay, 590 U.S., at ___ (Roberts, C.J., dissenting)).
 Emily Orshinsky, Foster Care and the First Amendment: What are the Requirements for Proving a Free Exercise Violation Under Smith?, Sunday Splits, Sunday Splits (July 19, 2020), http://sundaysplits.com/2020/07/19/foster-care-and-the-first-amendment-what-are-the-requirements-for-proving-a-free-exercise-violation-under-smith/ (explaining the current circuit split regarding the scope of Employment Division v. Smith). See also Rebekah Durham & Jacob Hoback, Seeing Both Sides: Was the Sixth Circuit Right About Kentucky School Closures?, U. Cin. L. Rev. Blog (Dec. 23, 2020), https://uclawreview.org/2020/12/23/seeing-both-sides-was-the-sixth-circuit-right-about-kentucky-school-closures/ (debating the scope of the Free Exercise Clause under Employment Division v. Smith).
 Id. (Gorsuch, J., concurring).
 Id. (Kagan, J., dissenting).
 Id. (Gorsuch, J., concurring).
 Id. (Roberts, C.J., concurring).