The First Amendment course is in my law school teaching portfolio. So, I read with great interest last Friday's late-night Supreme Court order denying, by a 5-4 vote, injunctive relief to a Southern Californian church to enjoin the state government's order relating to holding its church services in the age of COVID-19.

Before diving into the deep end of the pool, let's look at some history. Before the ratification of the First Amendment the states had differing views on protection of religion. In one corner were the states protecting religious worship (the narrow view) and in the other corner were the states protecting religious expression (the expansive view). The second won out and that's why our First Amendment protects expression. All sorts of expression ended up being protected: from providing for unemployment compensation to an employee whose religion forbade working on a Saturday to allowing an Amish family to keep their children under 16 from compulsory public education. The formula was simple: No compelling reason offered for the rule by the state, then no state regulation. The Supreme Court changed tack somewhat in 1991 and held that if the government's mere rule is one of "general applicability," then only a mere reasoned rationale need be offered for its rule.

What happened when this body of law collided head-on with COVID-19? The government sought to protect its citizens by limiting the number of people who could meet while others sought to preserve First Amendment freedom. The first clash was Maryville Baptist Church v. Beshear (the governor of Kentucky). The U.S. Court of Appeals for the Sixth Circuit ruled that the state's closing down of a drive-in Easter church service, with the minister speaking through a megaphone, violated the Free Expression Clause because it unduly burdened religious expression. After all, the court asked, what is the difference between people waiting in their car for a liquor store to open (approved) as opposed to waiting in a car in a parking lot for a minister to speak? The answer: none. In a striking note of powerful humility, the court wrote: "But it is not always easy to decide what is Caesar's and what is the government's—most assuredly true in the context of a pandemic." But the court did not, as it recognized, deal with the issue of an in-church service. That issue though would be taken up a few weeks later by the Ninth Circuit.