Whether the Free Exercise Clause prohibits government discrimination against religious gatherings

QUESTIONS PRESENTED The questions presented are: (1) Whether the Free Exercise Clause of the First Amendment prohibits the government from discriminating against religious gatherings 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 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. (3) 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. (4) 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 ii 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. (5) Whether the government’s prohibition of religious worship services while permitting nonreligious services in the same houses of worship and providing numerous other exemptions for nonreligious expression is a _ content-based restriction on speech requiring the application of strict scrutiny. During times of declared crisis, such as the uncertainty surrounding COVID-19, “the fog of public excitement obscures the ancient landmarks set up in our Bill of Rights.” Am. Communist Ass'n, C.LO. v. Douds, 339 U.S. 382, 453 (1950). But, where the fog of public excitement is at its apex, “the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly.” De Jonge v. Oregon, 299 U.S. 353, 365 (1937). Without doubt, “[t]herein lies the security of the Republic, the very foundation of constitutional government.” Id. “Times of crisis take the truest measure of our commitment to constitutional values. Constitutional values are only as strong as our willingness to reaffirm them when they seem most costly to bear.” Hariness v. Bush, 919 F.2d 170, 181 (D.C. Cir. 1990) (Edwards, J., dissenting) (emphasis added). A willingness to reaffirm our staunch commitment to our fundamental freedoms is imperative to the very survival of the American experiment. “If the iii provisions of the Constitution be not upheld when they pinch as well as when they comfort, they may as well be discarded.” Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398, 483 (1934) (Sutherland, J., dissenting) (emphasis added). Not surprisingly, the numerous stay-at-home orders, prohibitions on religious gatherings, and preferable treatment afforded to nonreligious gatherings have given rise to significant litigation a direct conflict among the circuit courts. Two federal appeals courts, the Fifth and Sixth Circuits, have found the discriminatory treatment of religious gatherings a violation of the First Amendment, and the Seventh and Ninth Circuits have taken a more deferential approach, as if the Constitution includes a pandemic exception to the First Amendment. Additionally, the district courts have reached inconsistent results in at least 73 cases in which decisions have been issued (with dozens more not yet decided), resulting in appeals pending in every Circuit Court in the country. (See First Amendment COVID-19 Litigation Addendum (listing of COVID-19 First Amendment cases in federal courts where decision has been issued)). Indeed, Justices of this