Whether the Free Exercise Clause prohibits government discrimination against houses of worship

QUESTIONS PRESENTED As this Court has made plain, “even in a pandemic, the Constitution cannot be put away and forgotten.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 8. Ct. 638, 68 (2020) (emphasis added). As Justice Gorsuch succinctly stated, “[i]t is time—past time—to make plain that, while the pandemic poses many grave challenges, there is no world in which the Constitution tolerates color-coded executive edicts that reopen liquor stores and bike shops but shutter churches, synagogues, and mosques.” Id. at 72 (Gorsuch, J., concurring) (emphasis added). Yet, despite that clear teaching, this Court has been forced to issue numerous injunctions and orders vacating decisions of lower courts refusing to follow that direction. See, eg., South Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021); Harvest Rock Church v. Newsom, No. 20A137, 2021 WL 406257 (U.S. Feb. 5, 2021); Gateway City Church v. Newsom, No. 20A138, 2021 WL 753575 (U.S. Feb. 26, 2021); Harvest Rock Church v. Newsom, No. 20A94, 2020 WL 7061630 (U.S. Dec. 3, 2020); High Plains Harvest Church v. Polis, 141 S. Ct. 527 (2020); Robinson v. Murphy, No. 20A95, 2020 WL 7346601 (U.S. Dec. 15, 2020); Gish v. Newsom, No. 20A120, 2021 WL 422669 (U.S. Feb. 8, 2021). The questions presented are: (1) Whether the Free Exercise Clause of the First Amendment prohibits the government ii from discriminating against houses of worship by restricting the size of religious gatherings while exempting or giving other preferential treatment to comparable nonreligious gatherings occurring inside the same houses of worship or to other comparable nonreligious gatherings occurring externally. (2) Whether the Establishment Clause of the First Amendment and this Court’s holding in Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 15 (1947 that “[nJeither a state nor the Federal Government... can force or influence a person to go to or remain away from church against his will” is violated when a State prohibits or forbids upon criminal penalty houses of worship from assembling regardless of the size of the house of worship or the religious doctrine or practice. (3) Whether this Court’s decision in Employment Division v. Smith, 494 U.S. 872 (1990), is irreconcilable with the proper understanding of the Free Exercise Clause of the First Amendment and should be overturned. (4) Whether this Court’s decision in Jacobson v. Massachusetts, 197 U.S. 11 (1905), issued decades before the First Amendment was incorporated against the States and 60 years before strict scrutiny would become the governing standard in First Amendment cases, dictates a separate standard for determining First Amendment liberties in times of declared crisis. iii (5) Whether the First Circuit erred in finding that a denial of a request for temporary restraining order and preliminary injunction, which the District Court labeled as a denial of a temporary restraining order, but which addressed the merits of the First Amendment claim, and fully-briefed with sworn testimony from all parties, where all parties treated the matter as a preliminary injunction, and where the District Court and the First Circuit denied a preliminary injunction pending appeal, is not immediately appealable.