Hydroxychloroquine and Chloroquine Increase COVID-19 Patients’ Risk of Death, Says New Study

“We’re going to defeat the invisible enemy. I think we’re going to do it even faster than we thought. And it will be a complete victory. It’ll be a total victory,” declared President Trump at the White House coronavirus task force press briefing on March 18. He hinted that a second news conference in the next day or so would feature “some potentially very exciting news…having to do with the FDA.”

A day later the president asserted that the malaria and arthritis drugs chloroquine and hydroxychloroquine had “shown very encouraging—very, very encouraging early results” in treating COVID-19. The president also praised the Food and Drug Administration (FDA) for moving quickly, saying that drugs have “gone through the approval process; it’s been approved.” Consequently, Trump added, “we’re going to be able to make that drug available almost immediately.” He suggested that using the drugs to treat patients suffering from COVID-19 could be “a tremendous breakthrough” and “a game changer.”

On March 28, the FDA issued an emergency use authorization allowing hydroxychloroquine and chloroquine to be distributed and used to treat certain hospitalized patients with COVID-19. A month later, the agency warned about heart rhythm problems and noted that “hydroxychloroquine and chloroquine have not been shown to be safe and effective for treating or preventing COVID-19.” Nevertheless, Trump let slip on May 19 that he was personally taking hydroxychloroquine as a coronavirus preventative treatment. Yesterday, the president said that he has just finished his hydroxychloroquine and zinc treatment regimen.

Sadly, accumulating scientific evidence is ever more strongly indicating that the president’s hopes for chloroquine and hydroxychloroquine as breakthrough treatments for COVID-19 are not being borne out.

The latest blow to those hopes was a huge observational study published last Friday by researchers in The Lancet. Researchers assessed nearly 100,000 COVID-19 patients from 671 hospitals on six continents with about two-thirds of the patients hailing from North America. They compared those being treated with chloroquine and hydroxychloroquine alone or in combination with the antibiotics azithromycin or clarithromycin with a cohort of patients who did not take those drugs.

The researchers controlled for multiple confounding factors such as age, sex, race or ethnicity, body-mass index, underlying cardiovascular disease and its risk factors, diabetes, underlying lung disease, smoking, immunosuppressed condition, and baseline disease severity.

Ultimately, they found that for patients treated with hydroxychloroquine, there was a 34 percent increase in risk of death and a 137 percent increase of risk for a serious heart arrhythmia compared to those patients not taking the drugs. The risk of death and heart arrhythmia increased to 45 percent and 411 percent, respectively, for those treated with hydroxychloroquine and an antibiotic. Being treated with chloroquine alone resulted in a 37 percent increased risk of death and a 256 percent increased risk of serious heart arrhythmia. There was also a 37 percent increased risk of death among patients taking both chloroquine and antibiotic. That combination slightly boosted the risk of serious heart arrhythmia to 301 percent.

In the wake of the increased mortality and heart arrhythmia risks reported in The Lancet study, the World Health Organization has decided to pause the ongoing randomized controlled trials using hydroxychloroquine that it is overseeing. Patients in those trials who are currently being treated with the drug will continue to receive it until they have finished their courses of treatment. The agency will evaluate the data so far collected from the trials and plans to issue an evaluation by mid-June of the evidence for harm, benefit, or lack of benefit from using hydroxychloroquine to treat COVID-19.

The best way to nail down the therapeutic risks and benefits of drugs is through randomized double blind placebo controlled clinical trials in which patients are randomly assigned to either the treatment group or the placebo group. Neither the researchers nor the participants know to which group individual patients have been assigned. In mid-May, the National Institute of Allergy and Infectious Diseases announced that it is sponsoring a randomized control trial to evaluate the efficacy of the combination of hydroxychloroquine and azithromycin in treating COVID-19 patients. Preliminary results from that trial are not expected until some time in October. No news yet on whether the agency will continue with the trial in light of The Lancet results.

Perhaps hydroxychloroquine and chloroquine in some combination will still turn out to be a game changer helping to lead to total victory against COVID-19, but that happy outcome is looking ever less likely.

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Churches Get Go-Ahead in California’s Latest Reopening Plans

California released new guidelines over the weekend explaining how churches may reopen so long as certain social distancing and public health measures are in place. The state’s actions come just a week before a possible confrontation between government officials and a group of religious leaders planning to hold in-person services for the Pentecost, May 31.

Under a new 13-page plan from California’s Department of Public Health, churches and places of worship in the Golden State can reopen with a limit of 25 percent capacity and a host of screening and sanitization measures in place to reduce the possible spread of COVID-19. Church staff must be screened for symptoms and their temperatures checked, and congregants should be similarly screened when they arrived for services. Social distancing plans must be implemented to keep congregants apart, which means no passing the collection plate around, singing is strongly discouraged, no potluck meals, and, of course, everybody should wear masks.

These new guidelines come just days after the Department of Justice sent Gov. Gavin Newsom (D) a letter warning that the state’s reopening plans were inappropriately and unconstitutionally leaving churches behind. The state had unveiled plans for the reopening of retail spaces, bars, restaurants, schools, and other gathering places, but churches would not be considered until a later phase.

That approach presented a legal problem because public health restrictions on the rights of people to gather and worship together need to generally match the restrictions placed on comparable secular gatherings. Otherwise, the state risks running afoul of the Constitution and of certain Supreme Court precedents by treating religious activity differently than similarly situated non-religious behavior. It was those constitutional risks that prompted the Justice Department’s warning letter to the state.

California also released new plans over the weekend that will allow retail stores that aren’t currently open to start reopening under similar requirements as churches.

There’s a notable difference in how the state treats these businesses compared to churches, however, and that difference is likely to keep the legal challenges alive against California’s coronavirus closure orders. While churches are required to limit their capacity to 25 percent, places like shopping malls are only required to reduce their capacity to 50 percent. This disparity has already led to a Pentecostal pastor in San Diego County saying that the new guidelines don’t do enough to persuade him to drop his legal challenge.

In fact, Pastor Arthur E. Hodges has even asked the Supreme Court to intervene in the case and added a supplementary letter to his request explaining that the new guidelines released over the weekend are not sufficient. “The State is still interfering with [the] right to free exercise of religion,” Hodges and his lawyers told the Court, “by issuing arbitrary and unconstitutional orders.”

Read his lawsuit here. This Sunday we’ll see whether California attempts to stop the more than 1,200 churches who have declared that they’ll be holding socially distant Pentecost services in person regardless of what the state orders.

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Churches Get Go-Ahead in California’s Latest Reopening Plans

California released new guidelines over the weekend explaining how churches may reopen so long as certain social distancing and public health measures are in place. The state’s actions come just a week before a possible confrontation between government officials and a group of religious leaders planning to hold in-person services for the Pentecost, May 31.

Under a new 13-page plan from California’s Department of Public Health, churches and places of worship in the Golden State can reopen with a limit of 25 percent capacity and a host of screening and sanitization measures in place to reduce the possible spread of COVID-19. Church staff must be screened for symptoms and their temperatures checked, and congregants should be similarly screened when they arrived for services. Social distancing plans must be implemented to keep congregants apart, which means no passing the collection plate around, singing is strongly discouraged, no potluck meals, and, of course, everybody should wear masks.

These new guidelines come just days after the Department of Justice sent Gov. Gavin Newsom (D) a letter warning that the state’s reopening plans were inappropriately and unconstitutionally leaving churches behind. The state had unveiled plans for the reopening of retail spaces, bars, restaurants, schools, and other gathering places, but churches would not be considered until a later phase.

That approach presented a legal problem because public health restrictions on the rights of people to gather and worship together need to generally match the restrictions placed on comparable secular gatherings. Otherwise, the state risks running afoul of the Constitution and of certain Supreme Court precedents by treating religious activity differently than similarly situated non-religious behavior. It was those constitutional risks that prompted the Justice Department’s warning letter to the state.

California also released new plans over the weekend that will allow retail stores that aren’t currently open to start reopening under similar requirements as churches.

There’s a notable difference in how the state treats these businesses compared to churches, however, and that difference is likely to keep the legal challenges alive against California’s coronavirus closure orders. While churches are required to limit their capacity to 25 percent, places like shopping malls are only required to reduce their capacity to 50 percent. This disparity has already led to a Pentecostal pastor in San Diego County saying that the new guidelines don’t do enough to persuade him to drop his legal challenge.

In fact, Pastor Arthur E. Hodges has even asked the Supreme Court to intervene in the case and added a supplementary letter to his request explaining that the new guidelines released over the weekend are not sufficient. “The State is still interfering with [the] right to free exercise of religion,” Hodges and his lawyers told the Court, “by issuing arbitrary and unconstitutional orders.”

Read his lawsuit here. This Sunday we’ll see whether California attempts to stop the more than 1,200 churches who have declared that they’ll be holding socially distant Pentecost services in person regardless of what the state orders.

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The Debate About the Original Meaning of the Free Exercise Clause

My amicus brief in Fulton v. City of Philadelphia, which argues that the Court was right in Employment Division v. Smith when it said the Free Exercise Clause is a nondiscrimination provision, deliberately doesn’t discuss the original meaning arguments: I have 8000 words for my brief, and I don’t want to use them to duplicate arguments that will doubtless arise in other amicus briefs. But I know our readers are interested in this question, so I thought I’d pass along the Justices’ most detailed discussion of the issue, from City of Boerne v. Flores (1997). What follows is an excerpt, which omits many of the specific details; you can see those details in the full decision (focus on Justice Scalia’s concurrence and Part II of Justice O’Connor’s dissent).

Here is Justice Scalia’s argument (which I generally think is right) for why the Free Exercise Clause was originally understood as only preventing discriminatory persecution of religious people and practices because of their religiosity:

[A.] {[T]he protections afforded by} various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights … are in fact more consistent with Employment Div. v. Smith‘s interpretation of free exercise than with the dissent’s understanding of it….

[T]he early “free exercise” enactments cited by the dissent protect only against action that is taken “for” or “in respect of” religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken “on account of” religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or “discriminat[ory]” action (New York Constitution); or, finally (and unhelpfully for purposes of interpreting “free exercise” in the Federal Constitution), action that interferes with the “free exercise” of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to … would not constitute action taken “for,” “in respect of,” or “on account of” one’s religion, or “discriminatory” action.

Assuming, however, that the affirmative protection of religion accorded by the early “free exercise” enactments sweeps as broadly as the dissent’s theory would require, those enactments do not support the dissent’s view, since they contain “provisos” that significantly qualify the affirmative protection they grant…. In fact, the most plausible reading of the “free exercise” enactments (if their affirmative provisions are read broadly, as the dissent’s view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct.

The “provisos” in the enactments negate a license to act in a manner “unfaithfull to the Lord Proprietary” (Maryland Act Concerning Religion of 1649), or “behav[e]” in other than a “peaceabl[e] and quie[t]” manner (Rhode Island Charter of 1663), or “disturb the public peace” (New Hampshire Constitution), or interfere with the “peace [and] safety of th[e] State” (New York, Maryland, and Georgia Constitutions), or “demea[n]” oneself in other than a “peaceable and orderly manner” (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping “peace” and “order” seems to have meant, precisely, obeying the laws. “[E]very breach of a law is against the peace.” Queen v. Lane, 87 Eng. Rep. 884 (Q.B. 1704).

Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of “peace”: “8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace.” {The word “licentious,” used in several of the early enactments, likewise meant “[e]xceeding the limits of law.”} This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right “to do only what was not lawfully prohibited.” “Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.” Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992).

{The same explanation applies, of course, to George Mason’s initial draft of Virginia’s religious liberty clause. When it said “unless, under colour of religion, any man disturb the peace … of society,” it probably meant “unless under color of religion any man break the law.” Thus, it is not the case that “both Mason’s and [James] Madison’s formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person’s interest in freely practicing his religion was to be balanced against state interests,” at least insofar as regulation of conduct was concerned.}

And while, under this interpretation, these early “free exercise” enactments support the Court’s judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O’Connor, or any of Smith‘s other critics. No one in that camp, to my knowledge, contends that their favored “compelling state interest” test conforms to any possible interpretation of “breach of peace and order”—i.e., that only violence or force, or any other category of action (more limited than “violation of law”) which can possibly be conveyed by the phrase “peace and order,” justifies state prohibition of religiously motivated conduct.

[B.] [T]hat legislatures sometimes (though not always) found it “appropriate” to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause…. [Likewise, t]here is no reason to think [that Framers’ statements about proposed legislative enactments] were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable.

Thus, for example, the pamphlet written by James Madison opposing Virginia’s proposed general assessment for support of religion does not argue that the assessment would violate the “free exercise” provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators. Likewise, the letter from George Washington to the Quakers by its own terms refers to Washington’s “wish and desire” that religion be accommodated, not his belief that existing constitutional provisions required accommodation….

The one exception is the statement by Thomas Jefferson that he considered “the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises”; but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) [(“Jefferson’s understanding of the scope and rationale of free exercise rights, however, was more limited even than Locke’s. Like Locke, he based his advocacy of freedom of religion on the judgment that religion, properly confined, can do no harm: ‘The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.'”)]….

[C.] Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the know­ledge of the academic defenders of the dissent’s position, none exists.

The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips (N.Y. Ct. Gen. Sess. 1813). Even this lone case is weak authority, not only because it comes from a minor court [conducted by the Mayor, who had never been a jurist], but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court’s simply modifying the common-law rules of evidence to recognize such a privilege.

On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent’s view. In Philips v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who “refused to be sworn, because it was his Sabbath.” {Indeed, the author of Philips could well have written Smith: “[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established.”} …

[D.] The historical evidence marshalled by the dissent … is more supportive of [Smith] than destructive of it. And … that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith….

And here is Justice O’Connor’s argument that the Free Exercise Clause did require religious exemptions even from religion-neutral, generally applicable laws:

[A.] Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government’s ability to intrude on religious practice….

[I]n 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: “[N]o person … professing to believe in Jesus Christ, shall from henceforth be any ways troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof … nor any way [be] compelled to the belief or exercise of any other Religion against his or her consent, so as they be not unfaithful to the Lord Proprietary, or molest or conspire against the civil Government.” [Archaic spelling updated here and in the next paragraph.—ed.]

Rhode Island’s Charter of 1663 used the analogous term “liberty of conscience.” It protected residents from being in any ways “molested, punished, disquieted, or called in question, for any differences in opinion, in matters of religion, and do not actually disturb the civil peace of our said colony.” The Charter further provided that residents may “freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious concernments …; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others.” Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663.

These documents suggest that, early in our country’s history, several Colonies acknowledged that freedom to pursue one’s chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent “licentiousness.”

In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise….

[B.] The principles expounded in these early charters re-emerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution.

These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution’s protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses.

The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided: “[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

Similarly, the New Hampshire Constitution of 1784 declared: “Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, … provided he doth not disturb the public peace, or disturb others, in their religious worship.”

The Maryland Declaration of Rights of 1776 read: “[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.”

The religious liberty clause of the Georgia Constitution of 1777 stated: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.”

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared: “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.”

[This language] strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to “free exercise” required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience—there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be “construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State.” Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.

The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following: “That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

Mason’s proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason’s use of the term “toleration,” contending that the word implied that the right to practice one’s religion was a governmental favor, rather than an inalienable liberty.

Second, Madison thought Mason’s proposal countenanced too much state interference in religious matters, since the “exercise of religion” would have yielded whenever it was deemed inimical to “the peace, happiness, or safety of society.” Madison suggested the provision read instead: “That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered.”

Thus, Madison wished to shift Mason’s language of “toleration” to the language of rights. Additionally, under Madison’s proposal, the State could interfere in a believer’s religious exercise only if the State would otherwise “be manifestly endangered.” In the end, neither Mason’s nor Madison’s language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution’s religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

For our purposes, however, it is telling that both Mason’s and Madison’s formulations envisioned that, when there was a conflict, a person’s interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason’s narrower and Madison’s broader notions of the right to religious freedom.

[C.] The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice….

For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or “swear” allegiance to civil authority…. [Many colonies] exempted Quakers from military service [as did the Continental Congress]….

States and Colonies with established churches … required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments….

[Likewise, b]oth North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws [that barred uncle-niece marriages, which Jewish law accepted—ed.]; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded….

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County Threatens Fines, Demands Expensive Alterations From Arizona Couple Hosting Free Yoga Classes and Potlucks on Their Property

Joshua and Emily Killeen left San Diego, California, looking for two things they couldn’t find in Southern California: cheap land and lax regulation. Both were necessary for the married couple’s dream of starting a wedding venue and yoga retreat.

“Her dream of opening a yoga studio and holding retreats, and my dream of opening a wedding venue go hand in hand,” Joshua Killeen, a military veteran and wedding videographer who was introduced to yoga through his wife, tells Reason. “We’re both sober so we wanted it to be a space where people can enjoy events and fun times that aren’t catered around alcoholic substances.”

Finding a property that was both affordable to the couple and zoned for what they were looking to do proved near-impossible in San Diego. So when a family member offered to sell them a rural property in Yavapai County, Arizona, the Killeens jumped at the opportunity.

They purchased the land and then set about building a tiny home and a barn that would serve as an event space for their eventual retreat. The two designed it all to be off-grid, sustained by solar power and rainwater—the perfect setup for the wellness-centered life and business they hoped to build out in the desert.

Or so they thought.

Soon after constructing improvements on the property, Yavapai County officials informed the couple that their buildings violated the county’s zoning code and that they’d either have to pay for permits and perform extensive renovations or tear everything down and vacate the property.

When the couple started to advertise their forthcoming wedding business and take deposits on future events to finance these alternations, the county again threatened them with fines and potentially even the demolition of their home and barn. It also told them to stop holding free community events on their property.

With no other way to raise money for the required renovations and unwilling to abandon their dream, the couple decided to sue. Today, they filed a lawsuit in the U.S District Court for the District of Arizona arguing that the restrictions imposed on their ability to advertise and hold free events amount to a violation of their First Amendment right to free speech.

“There is nothing in Yavapai County’s code that would authorize the government to restrict people’s speech as a condition of code compliance violations, or to incentivize them to comply more quickly in the future. That’s just not on the table,” says Jeff Rowes, an attorney with the Institute for Justice, which is representing the Killeens. “[County officials] were doing something they weren’t supposed to be doing—and even worse, what they were doing violated the Constitution.”

Rowes concedes, as does Joshua Killeen, that the initial improvements the couple made on their property required permits the two hadn’t obtained.

When the couple bought the 20-acre property in 2017, they believed the parcels they were purchasing were zoned as rural land and therefore didn’t require permits for buildings under a certain square footage.

In fact, the county had zoned all the unincorporated parts of Yavapai County to be rural-residential, meaning that the two would need permits for any structure larger than a shed, plus a special conditional use permit to operate a business there.

This information wasn’t secret, but it also wasn’t obvious or even readily apparent when they bought the land. Joshua Killeen says the person they purchased the property from had misinformed them about its zoning designation. The land they bought is pretty isolated, too, and far removed from anything that might suggest it was considered residential on paper.

“You can’t even throw a rock and hit our neighbor’s property,” says Joshua Killeen.

After buying the property, the Killeens went about building a small 800-square-foot home (plus a septic tank) and a barn they could use as an events space for their eventual wedding venue, all without pulling any permits.

Their trouble started in late June 2018, when Jacob Lane, a code enforcement officer with Yavapai County Development Services, scoped out the property in response to an anonymous complaint, spotting a number of structures on what should, according to county records, be vacant land.

He also spotted an archway bearing the words “Ananda Retreat,” the name of the Killeens’ business. Searching the internet for that name, he found a Facebook page and website the couple had set up to advertise their forthcoming retreat, as well as a phone number for Joshua Killeen.

Lane called Joshua Killeen that day to inform him that he would need permits for the structures on his property, and advised him to get in touch with another person at Development Services to bring his property into compliance.

In August, the Killeens met with Development Services personnel who told them that they would need to make a number of renovations to their property in order for it to be fully compliant with local regulations.

This included building a privacy fence around their isolated property, adding a commercial fire suppression system to their barn, despite them not doing any cooking or having open flames in it, and building wheelchair paths that complied with the Americans with Disabilities Act. (The demand that they build a privacy fence was later dropped.)

Joshua Killeen says that many of these proposed alternations didn’t make sense for their rural property, and conflicted with their vision of living humbly and off the grid. (The required commercial fire suppression rig they were required to get wasn’t going to work with the couple’s rain catchment system, for instance.) The alterations were also slated to be quite pricey.

“Just getting any heavy machinery out here is very, very expensive. We’re not a corporation. We’re a family using our savings to start a business,” says Joshua Killeen. The wheelchair paths and fire suppression system, he estimates, would cost $50,000-70,000 to build. That would be in addition to $11,000 in permitting fees the county was requiring.

Nevertheless, he and his wife agreed to bring their property into compliance. To raise money for all the county-demanded fixes, the two started advertising, and taking deposits for, future wedding bookings.

During this time, the Killeens also started hosting “Wellness Wednesday” events on their property, which included a free yoga class, vegetarian potluck, and yard games for community members.

Their ads proved successful enough, Killeen says, that their business received around 100 inquiries within three months. People loved the potlucks too, with about 30 community members showing up each week.

“It was for the community to get together, and for us to bring yoga and wellness to a community that didn’t have anything like this,” he says. “We had 60-year-old men who never practiced yoga before and were living out in the woods, we had them coming to every single one of our classes because it made them feel so good and so healthy.”

Development Services was less pleased.

County records show that officials kept a close eye on the weekly Facebook posts the Killeens made advertising their services and community events. Finally, in late August, Lane returned to the couple’s property to serve them with a Notice of Violation.

Joshua Killeen says one day he returned home only to find a white pickup truck with a Yavapai County seal on the side blocking the entrance to his property. Inside was Lane who reportedly refused to let him onto the property, asked him to get out of his vehicle, and demanded to know his name.

“He didn’t announce who he was, he didn’t announce what he was doing. He just shoved some papers in my face and said you have a hearing coming up,” says Joshua Killeen.

That hearing occurred in September, where officials made clear that until the Killeens brought their property into full compliance with the county’s zoning code, they needed to stop advertising their upcoming business, and stop holding any sort of public events (even free ones) on their property.

“They had printouts of our Facebook pages like they were criminal evidence,” Joshua Killeen says. “They made it seem like we were trying to hurt people. It was very bad, very humiliating.”

But when faced with the prospect of fines or having to demolish their home and barn, the Killeens agreed to comply with the county’s orders to stop advertising or holding events.

A judgment issued against the two by Yavapai County in November 2018 explicitly forbids the couple from hosting weddings, group photography, yoga classes, “wellness clinics,” or even potlucks on their property until they’ve secured all the necessary permits.

The forced cancellation of their weekly yoga class and potluck was a real let-down for the couple, and for many former attendees, says Killeen.

“When we had to cancel the ‘Wellness Wednesdays,’ everybody was very sad,” says Killeen. “For the first six months, whenever we’d see people in town when we went to run errands or sometimes randomly, they’d reach out to ask when classes are going to pick up again.”

The Killeens were initially given until March 2019 to come into compliance with all the county’s zoning code requirements. They eventually received a conditional use permit for their business in April of that year. The county also granted them a number of extensions on the deadline for bringing the property into compliance.

Rowes, their attorney, says that during this time, the two tried to finance all the alterations they needed to make by plying their trades as a yoga instructor and wedding photographer off-property. The COVID-19 pandemic has effectively shut off their opportunity to do that, however, making their ability to advertise and book future events crucial to getting their business up and running.

In addition to being a bummer for the community, and a detriment to their business, the county’s decision to force the couple to stop advertising and hosting events on their property is unconstitutional, says Rowes.

“The only kind of commercial speech the government can suppress is businesses that are inherently illegal, not just you can’t lawfully open right now,” says Rowes. “Here, it’s not that Joshua and Emily’s business is inherently illegal. It’s OK to have wedding venues.”

The fact that they still have outstanding code violations that need to be remedied is not an excuse for restricting the Killeens’ First Amendment-protected speech, he says.

In addition to this free speech claim, the lawsuit filed by the Institute for Justice argues that the county’s restrictions on their ability to hold free community events violate the protections of the Due Process Clause of the 14th Amendment.

Their complaint asks that the county’s restrictions on advertising and hosting events be lifted, and that the county pay the Killeens nominal damages of $10.

Killeen says the lawsuit he and his wife have filed is also about protecting a vision and a lifestyle they had hoped becoming rural landowners would enable them to enjoy.

“The ability to live within our means without going tens and thousands of dollars in debt, by living the way we want to live in a more simple, sustainable fashion, are rights and liberties that we should be able to appreciate and enjoy,” he says.

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The Debate About the Original Meaning of the Free Exercise Clause

My amicus brief in Fulton v. City of Philadelphia, which argues that the Court was right in Employment Division v. Smith when it said the Free Exercise Clause is a nondiscrimination provision, deliberately doesn’t discuss the original meaning arguments: I have 8000 words for my brief, and I don’t want to use them to duplicate arguments that will doubtless arise in other amicus briefs. But I know our readers are interested in this question, so I thought I’d pass along the Justices’ most detailed discussion of the issue, from City of Boerne v. Flores (1997). What follows is an excerpt, which omits many of the specific details; you can see those details in the full decision (focus on Justice Scalia’s concurrence and Part II of Justice O’Connor’s dissent).

Here is Justice Scalia’s argument (which I generally think is right) for why the Free Exercise Clause was originally understood as only preventing discriminatory persecution of religious people and practices because of their religiosity:

[A.] {[T]he protections afforded by} various statutory and constitutional protections of religion enacted by Colonies, States, and Territories in the period leading up to the ratification of the Bill of Rights … are in fact more consistent with Employment Div. v. Smith‘s interpretation of free exercise than with the dissent’s understanding of it….

[T]he early “free exercise” enactments cited by the dissent protect only against action that is taken “for” or “in respect of” religion (Maryland Act Concerning Religion of 1649, Rhode Island Charter of 1663, and New Hampshire Constitution); or action taken “on account of” religion (Maryland Declaration of Rights of 1776 and Northwest Ordinance of 1787); or “discriminat[ory]” action (New York Constitution); or, finally (and unhelpfully for purposes of interpreting “free exercise” in the Federal Constitution), action that interferes with the “free exercise” of religion (Maryland Act Concerning Religion of 1649 and Georgia Constitution). It is eminently arguable that application of neutral, generally applicable laws of the sort the dissent refers to … would not constitute action taken “for,” “in respect of,” or “on account of” one’s religion, or “discriminatory” action.

Assuming, however, that the affirmative protection of religion accorded by the early “free exercise” enactments sweeps as broadly as the dissent’s theory would require, those enactments do not support the dissent’s view, since they contain “provisos” that significantly qualify the affirmative protection they grant…. In fact, the most plausible reading of the “free exercise” enactments (if their affirmative provisions are read broadly, as the dissent’s view requires) is a virtual restatement of Smith: Religious exercise shall be permitted so long as it does not violate general laws governing conduct.

The “provisos” in the enactments negate a license to act in a manner “unfaithfull to the Lord Proprietary” (Maryland Act Concerning Religion of 1649), or “behav[e]” in other than a “peaceabl[e] and quie[t]” manner (Rhode Island Charter of 1663), or “disturb the public peace” (New Hampshire Constitution), or interfere with the “peace [and] safety of th[e] State” (New York, Maryland, and Georgia Constitutions), or “demea[n]” oneself in other than a “peaceable and orderly manner” (Northwest Ordinance of 1787). At the time these provisos were enacted, keeping “peace” and “order” seems to have meant, precisely, obeying the laws. “[E]very breach of a law is against the peace.” Queen v. Lane, 87 Eng. Rep. 884 (Q.B. 1704).

Even as late as 1828, when Noah Webster published his American Dictionary of the English Language, he gave as one of the meanings of “peace”: “8. Public tranquility; that quiet, order and security which is guaranteed by the laws; as, to keep the peace; to break the peace.” {The word “licentious,” used in several of the early enactments, likewise meant “[e]xceeding the limits of law.”} This limitation upon the scope of religious exercise would have been in accord with the background political philosophy of the age (associated most prominently with John Locke), which regarded freedom as the right “to do only what was not lawfully prohibited.” “Thus, the disturb-the-peace caveats apparently permitted government to deny religious freedom, not merely in the event of violence or force, but, more generally, upon the occurrence of illegal actions.” Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. Law Rev. 915 (1992).

{The same explanation applies, of course, to George Mason’s initial draft of Virginia’s religious liberty clause. When it said “unless, under colour of religion, any man disturb the peace … of society,” it probably meant “unless under color of religion any man break the law.” Thus, it is not the case that “both Mason’s and [James] Madison’s formulations envisioned that, when there was a conflict [between religious exercise and generally applicable laws], a person’s interest in freely practicing his religion was to be balanced against state interests,” at least insofar as regulation of conduct was concerned.}

And while, under this interpretation, these early “free exercise” enactments support the Court’s judgment in Smith, I see no sensible interpretation that could cause them to support what I understand to be the position of Justice O’Connor, or any of Smith‘s other critics. No one in that camp, to my knowledge, contends that their favored “compelling state interest” test conforms to any possible interpretation of “breach of peace and order”—i.e., that only violence or force, or any other category of action (more limited than “violation of law”) which can possibly be conveyed by the phrase “peace and order,” justifies state prohibition of religiously motivated conduct.

[B.] [T]hat legislatures sometimes (though not always) found it “appropriate” to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause…. [Likewise, t]here is no reason to think [that Framers’ statements about proposed legislative enactments] were meant to describe what was constitutionally required (and judicially enforceable), as opposed to what was thought to be legislatively or even morally desirable.

Thus, for example, the pamphlet written by James Madison opposing Virginia’s proposed general assessment for support of religion does not argue that the assessment would violate the “free exercise” provision in the Virginia Declaration of Rights, although that provision had been enacted into law only eight years earlier; rather the pamphlet argues that the assessment wrongly placed civil society ahead of personal religious belief and, thus, should not be approved by the legislators. Likewise, the letter from George Washington to the Quakers by its own terms refers to Washington’s “wish and desire” that religion be accommodated, not his belief that existing constitutional provisions required accommodation….

The one exception is the statement by Thomas Jefferson that he considered “the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises”; but it is quite clear that Jefferson did not in fact espouse the broad principle of affirmative accommodation advocated by the dissent, see McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1415 (1990) [(“Jefferson’s understanding of the scope and rationale of free exercise rights, however, was more limited even than Locke’s. Like Locke, he based his advocacy of freedom of religion on the judgment that religion, properly confined, can do no harm: ‘The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.'”)]….

[C.] Had the understanding in the period surrounding the ratification of the Bill of Rights been that the various forms of accommodation discussed by the dissent were constitutionally required (either by State Constitutions or by the Federal Constitution), it would be surprising not to find a single state or federal case refusing to enforce a generally applicable statute because of its failure to make accommodation. Yet the dissent cites none—and to my knowledge, and to the know­ledge of the academic defenders of the dissent’s position, none exists.

The closest one can come in the period prior to 1850 is the decision of a New York City municipal court in 1813, holding that the New York Constitution of 1777 required acknowledgment of a priest-penitent privilege, to protect a Catholic priest from being compelled to testify as to the contents of a confession. People v. Phillips (N.Y. Ct. Gen. Sess. 1813). Even this lone case is weak authority, not only because it comes from a minor court [conducted by the Mayor, who had never been a jurist], but also because it did not involve a statute, and the same result might possibly have been achieved (without invoking constitutional entitlement) by the court’s simply modifying the common-law rules of evidence to recognize such a privilege.

On the other side of the ledger, moreover, there are two cases, from the Supreme Court of Pennsylvania, flatly rejecting the dissent’s view. In Philips v. Gratz, 2 Pen. & W. 412 (Pa. 1831), the court held that a litigant was not entitled to a continuance of trial on the ground that appearing on his Sabbath would violate his religious principles. And in Stansbury v. Marks, 2 Dall. 213 (Pa. 1793), decided just two years after the ratification of the Bill of Rights, the court imposed a fine on a witness who “refused to be sworn, because it was his Sabbath.” {Indeed, the author of Philips could well have written Smith: “[C]onsiderations of policy address themselves with propriety to the legislature, and not to a magistrate whose course is prescribed not by discretion, but rules already established.”} …

[D.] The historical evidence marshalled by the dissent … is more supportive of [Smith] than destructive of it. And … that evidence is not compatible with any theory I am familiar with that has been proposed as an alternative to Smith….

And here is Justice O’Connor’s argument that the Free Exercise Clause did require religious exemptions even from religion-neutral, generally applicable laws:

[A.] Although the Framers may not have asked precisely the questions about religious liberty that we do today, the historical record indicates that they believed that the Constitution affirmatively protects religious free exercise and that it limits the government’s ability to intrude on religious practice….

[I]n 1649, the Maryland Assembly enacted the first free exercise clause by passing the Act Concerning Religion: “[N]o person … professing to believe in Jesus Christ, shall from henceforth be any ways troubled, molested or discountenanced for or in respect of his or her religion nor in the free exercise thereof … nor any way [be] compelled to the belief or exercise of any other Religion against his or her consent, so as they be not unfaithful to the Lord Proprietary, or molest or conspire against the civil Government.” [Archaic spelling updated here and in the next paragraph.—ed.]

Rhode Island’s Charter of 1663 used the analogous term “liberty of conscience.” It protected residents from being in any ways “molested, punished, disquieted, or called in question, for any differences in opinion, in matters of religion, and do not actually disturb the civil peace of our said colony.” The Charter further provided that residents may “freely, and fully have and enjoy his and their own judgments, and conscience in matters of religious concernments …; they behaving themselves peaceably and quietly and not using this liberty to licentiousness and profaneness; nor to the civil injury, or outward disturbance of others.” Various agreements between prospective settlers and the proprietors of Carolina, New York, and New Jersey similarly guaranteed religious freedom, using language that paralleled that of the Rhode Island Charter of 1663.

These documents suggest that, early in our country’s history, several Colonies acknowledged that freedom to pursue one’s chosen religious beliefs was an essential liberty. Moreover, these Colonies appeared to recognize that government should interfere in religious matters only when necessary to protect the civil peace or to prevent “licentiousness.”

In other words, when religious beliefs conflicted with civil law, religion prevailed unless important state interests militated otherwise….

[B.] The principles expounded in these early charters re-emerged over a century later in state constitutions that were adopted in the flurry of constitution drafting that followed the American Revolution. By 1789, every State but Connecticut had incorporated some version of a free exercise clause into its constitution.

These state provisions, which were typically longer and more detailed than the Federal Free Exercise Clause, are perhaps the best evidence of the original understanding of the Constitution’s protection of religious liberty. After all, it is reasonable to think that the States that ratified the First Amendment assumed that the meaning of the federal free exercise provision corresponded to that of their existing state clauses.

The precise language of these state precursors to the Free Exercise Clause varied, but most guaranteed free exercise of religion or liberty of conscience, limited by particular, defined state interests. For example, the New York Constitution of 1777 provided: “[T]he free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

Similarly, the New Hampshire Constitution of 1784 declared: “Every individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason; and no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, … provided he doth not disturb the public peace, or disturb others, in their religious worship.”

The Maryland Declaration of Rights of 1776 read: “[N]o person ought by any law to be molested in his person or estate on account of his religious persuasion or profession, or for his religious practice; unless, under colour of religion, any man shall disturb the good order, peace or safety of the State, or shall infringe the laws of morality, or injure others, in their natural, civil, or religious rights.”

The religious liberty clause of the Georgia Constitution of 1777 stated: “All persons whatever shall have the free exercise of their religion; provided it be not repugnant to the peace and safety of the State.”

In addition to these state provisions, the Northwest Ordinance of 1787—which was enacted contemporaneously with the drafting of the Constitution and reenacted by the First Congress—established a bill of rights for a territory that included what is now Ohio, Indiana, Michigan, Wisconsin, and part of Minnesota. Article I of the Ordinance declared: “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.”

[This language] strongly suggests that, around the time of the drafting of the Bill of Rights, it was generally accepted that the right to “free exercise” required, where possible, accommodation of religious practice. If not—and if the Court was correct in Smith that generally applicable laws are enforceable regardless of religious conscience—there would have been no need for these documents to specify, as the New York Constitution did, that rights of conscience should not be “construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of [the] State.” Such a proviso would have been superfluous. Instead, these documents make sense only if the right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes.

The Virginia Legislature may have debated the issue most fully. In May 1776, the Virginia Constitutional Convention wrote a constitution containing a Declaration of Rights with a clause on religious liberty. The initial drafter of the clause, George Mason, proposed the following: “That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be (directed) only by reason and conviction, not by force or violence; and therefore, that all men should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate, unless, under colour of religion, any man disturb the peace, the happiness, or safety of society. And that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.”

Mason’s proposal did not go far enough for a 26-year-old James Madison, who had recently completed his studies at the Presbyterian College of Princeton. He objected first to Mason’s use of the term “toleration,” contending that the word implied that the right to practice one’s religion was a governmental favor, rather than an inalienable liberty.

Second, Madison thought Mason’s proposal countenanced too much state interference in religious matters, since the “exercise of religion” would have yielded whenever it was deemed inimical to “the peace, happiness, or safety of society.” Madison suggested the provision read instead: “That religion, or the duty we owe our Creator, and the manner of discharging it, being under the direction of reason and conviction only, not of violence or compulsion, all men are equally entitled to the full and free exercise of it, according to the dictates of conscience; and therefore that no man or class of men ought on account of religion to be invested with peculiar emoluments or privileges, nor subjected to any penalties or disabilities, unless under color of religion the preservation of equal liberty, and the existence of the State be manifestly endangered.”

Thus, Madison wished to shift Mason’s language of “toleration” to the language of rights. Additionally, under Madison’s proposal, the State could interfere in a believer’s religious exercise only if the State would otherwise “be manifestly endangered.” In the end, neither Mason’s nor Madison’s language regarding the extent to which state interests could limit religious exercise made it into the Virginia Constitution’s religious liberty clause. Like the Federal Free Exercise Clause, the Virginia religious liberty clause was simply silent on the subject, providing only that “all men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

For our purposes, however, it is telling that both Mason’s and Madison’s formulations envisioned that, when there was a conflict, a person’s interest in freely practicing his religion was to be balanced against state interests. Although Madison endorsed a more limited state interest exception than did Mason, the debate would have been irrelevant if either had thought the right to free exercise did not include a right to be exempt from certain generally applicable laws. Presumably, the Virginia Legislature intended the scope of its free exercise provision to strike some middle ground between Mason’s narrower and Madison’s broader notions of the right to religious freedom.

[C.] The practice of the Colonies and early States bears out the conclusion that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice….

For example, Quakers and certain other Protestant sects refused on Biblical grounds to subscribe to oaths or “swear” allegiance to civil authority…. [Many colonies] exempted Quakers from military service [as did the Continental Congress]….

States and Colonies with established churches … required citizens to pay tithes to support either the government-established church or the church to which the tithepayer belonged. But Baptists and Quakers, as well as others, opposed all government-compelled tithes on religious grounds. Massachusetts, Connecticut, New Hampshire, and Virginia responded by exempting such objectors from religious assessments….

[Likewise, b]oth North Carolina and Maryland excused Quakers from the requirement of removing their hats in court; Rhode Island exempted Jews from the requirements of the state marriage laws [that barred uncle-niece marriages, which Jewish law accepted—ed.]; and Georgia allowed groups of European immigrants to organize whole towns according to their own faith.

To be sure, legislatures, not courts, granted these early accommodations. But these were the days before there was a Constitution to protect civil liberties—judicial review did not yet exist. These legislatures apparently believed that the appropriate response to conflicts between civil law and religious scruples was, where possible, accommodation of religious conduct. It is reasonable to presume that the drafters and ratifiers of the First Amendment—many of whom served in state legislatures—assumed courts would apply the Free Exercise Clause similarly, so that religious liberty was safeguarded….

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County Threatens Fines, Demands Expensive Alterations From Arizona Couple Hosting Free Yoga Classes and Potlucks on Their Property

Joshua and Emily Killeen left San Diego, California, looking for two things they couldn’t find in Southern California: cheap land and lax regulation. Both were necessary for the married couple’s dream of starting a wedding venue and yoga retreat.

“Her dream of opening a yoga studio and holding retreats, and my dream of opening a wedding venue go hand in hand,” Joshua Killeen, a military veteran and wedding videographer who was introduced to yoga through his wife, tells Reason. “We’re both sober so we wanted it to be a space where people can enjoy events and fun times that aren’t catered around alcoholic substances.”

Finding a property that was both affordable to the couple and zoned for what they were looking to do proved near-impossible in San Diego. So when a family member offered to sell them a rural property in Yavapai County, Arizona, the Killeens jumped at the opportunity.

They purchased the land and then set about building a tiny home and a barn that would serve as an event space for their eventual retreat. The two designed it all to be off-grid, sustained by solar power and rainwater—the perfect setup for the wellness-centered life and business they hoped to build out in the desert.

Or so they thought.

Soon after constructing improvements on the property, Yavapai County officials informed the couple that their buildings violated the county’s zoning code and that they’d either have to pay for permits and perform extensive renovations or tear everything down and vacate the property.

When the couple started to advertise their forthcoming wedding business and take deposits on future events to finance these alternations, the county again threatened them with fines and potentially even the demolition of their home and barn. It also told them to stop holding free community events on their property.

With no other way to raise money for the required renovations and unwilling to abandon their dream, the couple decided to sue. Today, they filed a lawsuit in the U.S District Court for the District of Arizona arguing that the restrictions imposed on their ability to advertise and hold free events amount to a violation of their First Amendment right to free speech.

“There is nothing in Yavapai County’s code that would authorize the government to restrict people’s speech as a condition of code compliance violations, or to incentivize them to comply more quickly in the future. That’s just not on the table,” says Jeff Rowes, an attorney with the Institute for Justice, which is representing the Killeens. “[County officials] were doing something they weren’t supposed to be doing—and even worse, what they were doing violated the Constitution.”

Rowes concedes, as does Joshua Killeen, that the initial improvements the couple made on their property required permits the two hadn’t obtained.

When the couple bought the 20-acre property in 2017, they believed the parcels they were purchasing were zoned as rural land and therefore didn’t require permits for buildings under a certain square footage.

In fact, the county had zoned all the unincorporated parts of Yavapai County to be rural-residential, meaning that the two would need permits for any structure larger than a shed, plus a special conditional use permit to operate a business there.

This information wasn’t secret, but it also wasn’t obvious or even readily apparent when they bought the land. Joshua Killeen says the person they purchased the property from had misinformed them about its zoning designation. The land they bought is pretty isolated, too, and far removed from anything that might suggest it was considered residential on paper.

“You can’t even throw a rock and hit our neighbor’s property,” says Joshua Killeen.

After buying the property, the Killeens went about building a small 800-square-foot home (plus a septic tank) and a barn they could use as an events space for their eventual wedding venue, all without pulling any permits.

Their trouble started in late June 2018, when Jacob Lane, a code enforcement officer with Yavapai County Development Services, scoped out the property in response to an anonymous complaint, spotting a number of structures on what should, according to county records, be vacant land.

He also spotted an archway bearing the words “Ananda Retreat,” the name of the Killeens’ business. Searching the internet for that name, he found a Facebook page and website the couple had set up to advertise their forthcoming retreat, as well as a phone number for Joshua Killeen.

Lane called Joshua Killeen that day to inform him that he would need permits for the structures on his property, and advised him to get in touch with another person at Development Services to bring his property into compliance.

In August, the Killeens met with Development Services personnel who told them that they would need to make a number of renovations to their property in order for it to be fully compliant with local regulations.

This included building a privacy fence around their isolated property, adding a commercial fire suppression system to their barn, despite them not doing any cooking or having open flames in it, and building wheelchair paths that complied with the Americans with Disabilities Act. (The demand that they build a privacy fence was later dropped.)

Joshua Killeen says that many of these proposed alternations didn’t make sense for their rural property, and conflicted with their vision of living humbly and off the grid. (The required commercial fire suppression rig they were required to get wasn’t going to work with the couple’s rain catchment system, for instance.) The alterations were also slated to be quite pricey.

“Just getting any heavy machinery out here is very, very expensive. We’re not a corporation. We’re a family using our savings to start a business,” says Joshua Killeen. The wheelchair paths and fire suppression system, he estimates, would cost $50,000-70,000 to build. That would be in addition to $11,000 in permitting fees the county was requiring.

Nevertheless, he and his wife agreed to bring their property into compliance. To raise money for all the county-demanded fixes, the two started advertising, and taking deposits for, future wedding bookings.

During this time, the Killeens also started hosting “Wellness Wednesday” events on their property, which included a free yoga class, vegetarian potluck, and yard games for community members.

Their ads proved successful enough, Killeen says, that their business received around 100 inquiries within three months. People loved the potlucks too, with about 30 community members showing up each week.

“It was for the community to get together, and for us to bring yoga and wellness to a community that didn’t have anything like this,” he says. “We had 60-year-old men who never practiced yoga before and were living out in the woods, we had them coming to every single one of our classes because it made them feel so good and so healthy.”

Development Services was less pleased.

County records show that officials kept a close eye on the weekly Facebook posts the Killeens made advertising their services and community events. Finally, in late August, Lane returned to the couple’s property to serve them with a Notice of Violation.

Joshua Killeen says one day he returned home only to find a white pickup truck with a Yavapai County seal on the side blocking the entrance to his property. Inside was Lane who reportedly refused to let him onto the property, asked him to get out of his vehicle, and demanded to know his name.

“He didn’t announce who he was, he didn’t announce what he was doing. He just shoved some papers in my face and said you have a hearing coming up,” says Joshua Killeen.

That hearing occurred in September, where officials made clear that until the Killeens brought their property into full compliance with the county’s zoning code, they needed to stop advertising their upcoming business, and stop holding any sort of public events (even free ones) on their property.

“They had printouts of our Facebook pages like they were criminal evidence,” Joshua Killeen says. “They made it seem like we were trying to hurt people. It was very bad, very humiliating.”

But when faced with the prospect of fines or having to demolish their home and barn, the Killeens agreed to comply with the county’s orders to stop advertising or holding events.

A judgment issued against the two by Yavapai County in November 2018 explicitly forbids the couple from hosting weddings, group photography, yoga classes, “wellness clinics,” or even potlucks on their property until they’ve secured all the necessary permits.

The forced cancellation of their weekly yoga class and potluck was a real let-down for the couple, and for many former attendees, says Killeen.

“When we had to cancel the ‘Wellness Wednesdays,’ everybody was very sad,” says Killeen. “For the first six months, whenever we’d see people in town when we went to run errands or sometimes randomly, they’d reach out to ask when classes are going to pick up again.”

The Killeens were initially given until March 2019 to come into compliance with all the county’s zoning code requirements. They eventually received a conditional use permit for their business in April of that year. The county also granted them a number of extensions on the deadline for bringing the property into compliance.

Rowes, their attorney, says that during this time, the two tried to finance all the alterations they needed to make by plying their trades as a yoga instructor and wedding photographer off-property. The COVID-19 pandemic has effectively shut off their opportunity to do that, however, making their ability to advertise and book future events crucial to getting their business up and running.

In addition to being a bummer for the community, and a detriment to their business, the county’s decision to force the couple to stop advertising and hosting events on their property is unconstitutional, says Rowes.

“The only kind of commercial speech the government can suppress is businesses that are inherently illegal, not just you can’t lawfully open right now,” says Rowes. “Here, it’s not that Joshua and Emily’s business is inherently illegal. It’s OK to have wedding venues.”

The fact that they still have outstanding code violations that need to be remedied is not an excuse for restricting the Killeens’ First Amendment-protected speech, he says.

In addition to this free speech claim, the lawsuit filed by the Institute for Justice argues that the county’s restrictions on their ability to hold free community events violate the protections of the Due Process Clause of the 14th Amendment.

Their complaint asks that the county’s restrictions on advertising and hosting events be lifted, and that the county pay the Killeens nominal damages of $10.

Killeen says the lawsuit he and his wife have filed is also about protecting a vision and a lifestyle they had hoped becoming rural landowners would enable them to enjoy.

“The ability to live within our means without going tens and thousands of dollars in debt, by living the way we want to live in a more simple, sustainable fashion, are rights and liberties that we should be able to appreciate and enjoy,” he says.

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Minnesota Man Dies After Video Shows Cop Pressing Knee to His Neck for Nearly 8 Minutes

A Minnesota man named George Floyd died Monday after a bystander video showed him begging for air while a police officer held a knee to his neck.

According to a statement by the Minneapolis Police Department (MPD), officers responded to reports of a forgery and were advised that the suspect appeared to be under the influence. Floyd was sitting in his car when officers arrived on the scene and commanded him to exit his vehicle. The statement says that Floyd got out of his car, physically resisted the officers, and was handcuffed. It was then that officers noticed that Floyd “appeared to be suffering medical distress.” (The statement does not provide further detail.)

But a bystander captured 10 minutes of the interaction on video. When the video starts, an MPD officer is seen pressing his knee into the side of Floyd’s neck while he’s on the ground and handcuffed.

Floyd is heard pleading with the officer, repeatedly saying, “I can’t breathe,” “My neck hurts,” and “They gone kill me.” He continues to move his head, presumably in an attempt to breathe.

“You got him down, man! Let him breathe at least,” a bystander is heard saying in the background. Another comments that his nose is bleeding. Others ask how long the officers plan to keep him on the ground and question the decision to keep him pinned by the neck.

At one point, another officer on the scene responds to the criticisms, saying that they tried to put Floyd in the police vehicle “for 10 minutes.”

About four minutes in, Floyd stops moving. That’s when the officer whose knee is pressed to Floyd’s neck pulls out what bystanders identify as mace and the other officer on scene moves to get between the officer and the crowd.

The bystanders continue to tell the officers that Floyd isn’t responding and urge them to check his pulse. The officer continues to keep his knee pressed to Floyd’s neck until emergency medical services arrive, which was called by the officers.

Floyd was transported to Hennepin County Medical Center. He died shortly after.

MPD confirmed that neither Floyd nor the officers used weapons in the incident, that the officers were not injured, and that the officers involved were wearing body cameras, which were activated at the time.

MPD has requested that the Minnesota Bureau of Criminal Apprehension investigate the incident. The FBI will also be part of the investigation.

Civil rights attorney Benjamin Crump, who is involved with cases like Ahmaud Arbery’s and Breonna Taylor’s, announced on Twitter that he is representing Floyd’s family in court.

“This abusive, excessive, and inhumane use of force cost the life of a man who was being detained by the police for questioning about a non-violent charge,” Crump said in a statement.

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Minnesota Man Dies After Video Shows Cop Pressing Knee to His Neck for Nearly 8 Minutes

A Minnesota man named George Floyd died Monday after a bystander video showed him begging for air while a police officer held a knee to his neck.

According to a statement by the Minneapolis Police Department (MPD), officers responded to reports of a forgery and were advised that the suspect appeared to be under the influence. Floyd was sitting in his car when officers arrived on the scene and commanded him to exit his vehicle. The statement says that Floyd got out of his car, physically resisted the officers, and was handcuffed. It was then that officers noticed that Floyd “appeared to be suffering medical distress.” (The statement does not provide further detail.)

But a bystander captured 10 minutes of the interaction on video. When the video starts, an MPD officer is seen pressing his knee into the side of Floyd’s neck while he’s on the ground and handcuffed.

Floyd is heard pleading with the officer, repeatedly saying, “I can’t breathe,” “My neck hurts,” and “They gone kill me.” He continues to move his head, presumably in an attempt to breathe.

“You got him down, man! Let him breathe at least,” a bystander is heard saying in the background. Another comments that his nose is bleeding. Others ask how long the officers plan to keep him on the ground and question the decision to keep him pinned by the neck.

At one point, another officer on the scene responds to the criticisms, saying that they tried to put Floyd in the police vehicle “for 10 minutes.”

About four minutes in, Floyd stops moving. That’s when the officer whose knee is pressed to Floyd’s neck pulls out what bystanders identify as mace and the other officer on scene moves to get between the officer and the crowd.

The bystanders continue to tell the officers that Floyd isn’t responding and urge them to check his pulse. The officer continues to keep his knee pressed to Floyd’s neck until emergency medical services arrive, which was called by the officers.

Floyd was transported to Hennepin County Medical Center. He died shortly after.

MPD confirmed that neither Floyd nor the officers used weapons in the incident, that the officers were not injured, and that the officers involved were wearing body cameras, which were activated at the time.

MPD has requested that the Minnesota Bureau of Criminal Apprehension investigate the incident. The FBI will also be part of the investigation.

Civil rights attorney Benjamin Crump, who is involved with cases like Ahmaud Arbery’s and Breonna Taylor’s, announced on Twitter that he is representing Floyd’s family in court.

“This abusive, excessive, and inhumane use of force cost the life of a man who was being detained by the police for questioning about a non-violent charge,” Crump said in a statement.

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My Argument for Preserving Employment Division v. Smith

In Fulton v. City of Philadelphia, the Court is considering whether to reverse Employment Division v. Smith, the case holding that (generally speaking) religious objectors aren’t constitutionally entitled to exemptions from generally applicable laws. I have long been one of the few law professors who (1) thinks Smith is right, but (2) thinks that jurisdiction-by-jurisdiction Religious Freedom Restoration Acts are generally a good idea. I wrote an article about that in 1999 (A Common-Law Model for Religious Exemptions), and now an amicus brief in Fulton (with the help of my students Robert Bowen, Delaney Gold-Diamond, and Caleb Mathena).

The amicus brief is on my own behalf, so there are no reasons for me to keep it confidential before I file it (it’s due next Wednesday, June 3, but I’d like to file it a couple of days early), and every reason not to: If there are any errors, small, medium, or large, in my thinking on this, I would love to have a chance to fix them. So if any of you are interested in having a look and giving me your suggestions, I’d much appreciate it. (Note that the brief has not yet been cite-checked or fully proofread, though I’d be glad to know of proofreading glitches as well as about more serious ones.) I include the Summary of Argument below, but you can read the whole brief here.

[1.] Justice Scalia was right: Courts should not be constantly “in the business of determining whether the ‘severe impact’ of various laws on religious practice” suffices to justify a constitutionally mandated exemption from a generally applicable law. Employment Division v. Smith, 494 U.S. 872, 889 n.5 (1990). “[I]t is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.” Id.

Indeed, overruling Smith would revive all the flaws of a broad substantive due process regime: It would require courts to routinely second-guess legislative judgments about the normative foundations for a wide range of laws, and about the laws’ practical necessity.

For instance, should people have a right to assisted suicide? This Court in Washington v. Glucksberg, 521 U.S. 702 (1997), refused to recognize such a right under substantive due process, and upheld an assisted suicide ban under the rational basis test. But if Smith were overruled, any person who claims a religious obligation to assist in suicide would trigger the very sort of strict scrutiny inquiry that Glucksberg forecloses.

Likewise, this Court has rejected heightened scrutiny of economic regulations, such as minimum wage laws. But if Smith were overruled, a person who claims a religious obligation to hire people but for less than minimum wage would be entitled to an exemption, unless the regulation passes strict scrutiny. And the list could go on.

Of course, it is appealing to protect religiously motivated action (or inaction) that does not really hurt anyone. But what constitutes “hurting anyone” is a hotly contested issue, as this very case shows. It is contested normatively. (Should refusing to deal with a same-sex couple qualify as hurting them? Is paying people a supposedly “exploitative” wage, even with their consent, hurting them?) And it is contested practically. (Would allowing assisted suicide end up pressuring people into choosing death even if they would rather not?) This Court’s rejection of a general right to liberty under the rubric of substantive due process wisely recognizes that these questions should ultimately be left to the political process.

[2.] To be sure, normative and pragmatic judgments about which actions hurt others are familiar to courts. Much of the common law of tort, contract, and property reflects such judgments.

But such decisions are only tentative, because they can be overruled by legislatures. Judges have the first word on these matters, but not the last. That makes common-law decisionmaking legitimate even when aggressive use of substantive due process would not be.

Indeed, decisionmaking under RFRAs is in this respect similar to such common-law decisionmaking. Because RFRAs (state or federal) are mere statutes, they give judges authority to create exceptions but subject to possible revision by legislatures.

Thus, for instance, this Court concluded in Gonzales v. O Centro Espírita Beneficente União do Vegetal that, in effect, hoasca was not so harmful as to justify denying an exemption request, 546 U.S. 418 (2006)—but if Congress had disagreed, it could have exempted the hoasca ban from RFRA, and thus had the last word on the subject. But if Smith were overruled, this Court’s estimate of harm would have been final, unrevisable without an Article V constitutional amendment.

[3.] Some substantive constitutional rights, of course, do require courts to evaluate the normative and pragmatic justification for restrictions on those rights, and the test in those cases often is strict scrutiny. But Smith was correct in concluding that claims of those rights are quite different from claims of religious exemptions, 494 U.S. at 885-86. Those rights require second-guessing legislative judgments only for specific, well-defined zones of regulation (e.g., content-based speech restrictions), where such judicial decisionmaking is especially justified. Overruling Smith would require courts to consider overriding legislative decisions as to a vast range of generally applicable laws.

[4.] Nor should this Court limit Smith to laws that lack secular exceptions. A law can be generally applicable if it does not single out religious behavior for special burdens, even if it does include exceptions for certain kinds of secular behavior. Indeed, a vast range of important laws have many exceptions—trespass law, the duty to testify, antidiscrimination law, copyright law, contract law, and many others.

[5.] This brief takes no position on whether statements of government officials and the shifting legal basis for the government’s actions may indicate that the City of Philadelphia singled out Catholic Social Services for different treatment on the basis of religion. Pet. Br. __. The brief argues only that this Court should reaffirm the Smith principle that, absent such intentional discrimination, the Free Exercise Clause does not provide a presumptive constitutional right to religious exemptions from government actions.

[Footnote:] This brief also does not discuss the original meaning of the Free Exercise Clause, a matter treated in Justice Scalia’s and Justice O’Connor’s opinions in City of Boerne v. Flores, 521 U.S. 507 (1997), and likely in other forthcoming amicus briefs in this case.

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