Written by Jose Ruiz

In 2020, many Americans added a new salutation to their repertoire when sending out e-mails or letters: “I hope this finds you well in these uncertain and unprecedented times.” And the year was without question rife with uncertainty. Between January 19, 2020 — the date of the first documented case of COVID-19 in the United States — and December 31, 2020, approximately 20 million Americans tested positive for the coronavirus. In an effort to contain the spread of the virus, states enacted sweeping regulations, including stay-at-home orders, mask mandates, closures of certain types of businesses, and occupancy limits on others. As these restrictions continued into the summer of 2020, individuals nationwide began challenging their constitutionality by lodging complaints against their respective states. But as these individuals would quickly learn, while the times may have been uncertain, they were far from unprecedented. 

As suit after suit was filed in federal district courts across the country, federal judges found themselves relying on a century-old Supreme Court case — Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 634 (1905) — in determining whether various restrictions imposed by the States were valid under the Constitution. Jacobson involved a plaintiff who challenged the constitutionality of a Massachusetts law promulgated in the midst of a smallpox epidemic that required all adult citizens to be given the smallpox vaccination. The plaintiff argued the law violated his Fourteenth Amendment right “to care for his own body and health in such way as to him seems best.” Id. at 28. The Supreme Court rejected the plaintiff’s claim, explaining that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Id. Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. The Court went on to describe the broad police power given to the States in combating a public health crisis, explaining:

In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect to his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.

Id. at 29.

Noting the broad deference to be given to the legislative and executive branches of state government when combatting a public health crisis, the Supreme Court in Jacobson established the following rule for evaluating the constitutionality of restrictions implemented to combat an epidemic or pandemic:

[I]f a statute purporting to have been enacted to protect the public health, the public morals or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.

Id. at 31.

One hundred and fifteen years after the Court’s decision in Jacobson, the Supreme Court again reiterated the broad discretion that must be given to state officials when combatting the current public health crisis caused by COVID-19 in denying a writ application filed by a plaintiff challenging the constitutionality of California’s 25% occupancy limit on religious worship services. See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 207 L. Ed. 154 (2020). The Court noted that “[w]here those broad limits [provided to state officials] 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.” Id. at 1613-14 (citing Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545, 105 S. Ct. 1005, 83 L. Ed. 2d 1016 (1985)). As stated succinctly by the United States Fifth Circuit:

[W]hen faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.”

In re Abbot, 954 F.3d 772, 784 (5th Cir. 2020) (quoting Jacobson, 197 U.S. at 31).

Applying the rule outlined by Jacobson, countless federal courts around the country have stricken down challenges to the constitutionality of COVID restrictions implemented by the States. While the nature of these challenges has varied, the reasoning behind the courts’ ultimate holding has remained the same: under Jacobson, so long as the restrictions bear a “real and substantial relation” to the goal of slowing the spread of COVID-19 and are not “beyond all question” a violation of fundamental rights, courts will not second-guess the states’ decisions.

As the number of new daily COVID-19 cases in the United States began to decline at the end of the summer of 2020, state and local governments nationwide began loosening and lifting the various restrictions that had been implemented to combat the spread of the virus. And as a result, the number of lawsuits filed challenging the validity of these restrictions declined as well. Yet as the country currently grapples with the “third wave” of COVID cases, states are beginning to consider re-implementing these restrictions to slow the spread of the disease and take some pressure off the healthcare system. This necessarily begs the question: When restrictions are inevitably put back into place, will individuals and businesses have any success in challenging them? While the answer to that question seems like a foregone conclusion based on Jacobson and recent federal decisions, the appointment of Justice Amy Coney Barrett to the Supreme Court has posed a serious question as to whether the Jacobson rule will continue to apply.

When the Newsom decision was rendered by the Court in May of 2020, Justices Kavanaugh, Thomas, and Gorsuch dissented, stating they believed California’s 25% occupancy cap on religious worship services was a violation of individuals’ First Amendment rights to freedom of religion. Two months later, in Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 207 L. Ed. 2d 1129, the Supreme Court denied an application for injunctive relief filed by a Nevada resident challenging the constitutionality of Nevada’s 50% occupancy cap on religious services. Justice Alito authored a dissent to this decision, joined by Justices Thomas and Kavanaugh, wherein he argued Jacobson was being read out of context and inappropriately applied. Id. at 2608 (Alito, J., dissenting). He stated his belief that “it is a mistake to take Jacobson as the last word on what the Constitution allows public officials to do during the COVID-19 pandemic,” and that it was “a considerable stretch to read the decision as establishing the test to be applied when statewide measures of indefinite duration are challenged under the First Amendment or other provisions not at issue in that case.” Id. In his dissent, Justice Alito further noted:

For months now, States and their subdivisions have responded to the pandemic by imposing unprecedented restrictions on personal liberty, including the free exercise of religion. This initial response was understandable. In times of crisis, public health officials must respond quickly and decisively to evolving and uncertain situations. At the dawn of an emergency — and the opening days of the COVID-19 outbreak qualify — public officials may not be able to craft precisely tailored rules. Time, information, and expertise may be in short supply, and those responsible for enforcement may lack the resources needed to administer rules that draw fine distinctions. Thus, at the outset of an emergency, it may be appropriate for courts to tolerate very bunt rules. In general, this is what happened thus far during the COVID-19 pandemic. But a public health emergency does not give Governors and other public officials carte blanche to disregard the Constitution for as long as the medical problem persists.

Id. at 2604-05

Justice Gorsuch authored a separate dissent in Sisolak, noting that while Jacobson did provide state and local governments with wide discretion in choosing how to combat the virus, “COVID-19 is not a blank check for a state to discriminate against religious people, religious organizations, and religious services.” Id. at 2614 (Gorsuch, J., dissenting).

Since the Supreme Court’s decisions in Newsom and Sisolak, former Justice Ruth Bader Ginsburg — who joined the majority in both decisions — has been replaced on the bench by Justice Amy Coney Barrett. Given Justice Barrett’s philosophy, it seems likely that if another case challenging the constitutionality of occupancy limits on religious services reaches the Supreme Court, she will join with Justices Alito, Thomas, Kavanaugh, and Gorsuch. If that occurs, the new majority may take the opportunity to re-visit Jacobson and re-define the rule used to assess the constitutionality of restrictions implemented in response to a public health crisis.