Freedom to Pray, Not to Protest

By Leah Reiss. Full Text.

The Supreme Court has never definitively ruled on the constitutionality of curfews that target political activity. Historically, curfews have been very difficult to challenge. They suffer from mootness issues because they tend to be temporary in nature, so associated harms are also temporary. Likely as a result, challenges to curfews more commonly take the form of a complaint regarding misconduct by a law enforcement officer during the curfew, rather than a facial challenge to the curfew itself. Further, courts are typically deferential to state claims of police power, which provides the authority for state and local governments to take action on public health and safety related issues. In stark contrast, the Supreme Court took on COVID-19-related restrictions on gathering in a significant way, especially those that had some kind of impact on religious activity, like occupancy restrictions that included limits on houses of worship. And the treatment of those challenges, starting with the appointment and confirmation of Justice Barrett, provided a potential pathway forward for people seeking to challenge curfews.

In Tandon v. Newsom, the Court articulated new precedent for interpreting government restrictions that impact religious activity. Up to this point, the practice of evaluating restrictions on religious behavior involved an application of strict scrutiny, but that standard was reserved for regulations that targeted religious behavior. A content-neutral regulation that had incidental impacts on religious activity was deemed acceptable, so long as activity treated more leniently was sufficiently dissimilar. Tandon calls for courts to apply strict scrutiny to generally-applicable regulations with incidental impacts on religious activity. Additionally, a termination or modification of the challenged regulation does not moot a challenge if the Court finds a continued threat that the restrictions will be reinstated. Aside from being generally a higher standard of evaluation, the fact that Tandon provides a relatively broad opportunity to avoid a mootness challenge is significant for a class of restrictions that is so temporary in nature, like curfews.

Identifying a more effective way to challenge politically-motivated curfews is important for two major reasons: (1) these curfews limit the First Amendment rights of speech, assembly, and petitioning the government, which is inherently harmful; and (2) the application of curfews throughout United States history is racialized. Government officials used curfews to target enslaved and free Black people in the pre-Revolution and pre-Civil War eras, civil rights era protestors, and modern-day Black Lives Matter/anti-police brutality protestors. The typical pattern seen time after time is this: The white majority oppresses the Black population. The white majority then stokes fear of racial uprisings and revolts. Governments then use these racist fears as pretext for curfews that cut off protest responses—effectively taking away peoples’ constitutional rights. May and June of 2020 followed this same pattern. If we take as a given that this pattern will continue, it is crucial to devise a new legal strategy to break the pattern and allow sustained anti-racist protest without the threat of overzealous curfews. This Note see promise in the Tandon approach because, if the Court is open to a higher standard of review for restrictions on religious activity, then a compelling argument can be made that the higher standard should be applied to other forms of protected activity.