OUR ANTI-KOREMATSU
AMERICAN JOURNAL
of LAW and EQUALITY
OUR ANTI-KOREMATSU
Cass R. Sunstein*
I.
A pandemic is not a war, but in 2020, more than three hundred seventy-five thousand
Americans died from the COVID-19 pandemic. By contrast, there were about two hundred
ninety-one thousand combat deaths in World War II and about forty-seven thousand such
deaths in the Vietnam War. As in wartime, a pandemic produces a series of mandates and
restrictions, some of which raise serious constitutional issues.
In the United States, some of the resulting questions involve liberty: Have restrictions
invaded some protected sphere? Are they too draconian? Unconstitutionally so? Others
involve equality: Have similarly situated people been treated differently? The equality
questions have proved especially challenging in the context of restrictions on attendance
at religious services.
Suppose, for example, that a state imposes a general restriction on gatherings of certain
kinds and that the restriction includes churches, synagogues, and mosques. Is the restriction
constitutional? Or suppose that a state imposes a general restriction on certain kinds of gather-
ings but that it includes exemptions for “essential” businesses, including drugstores and gro-
cery stores—but that places of worship are not deemed “essential.” Is that constitutional?
In approaching such questions, two propositions are clear. First, an unambiguously
discriminatory restriction would be highly likely to offend the Free Exercise Clause. If a
particular state imposed pandemic-related restrictions on houses of worship but at the
same time exempted comparable institutions, it would be acting unconstitutionally—
unless that state could give some compelling justification for its selectivity. Second, a non-
discriminatory restriction would not offend the Free Exercise Clause (although it could
Author: *Cass Sunstein is the Robert Walmsley University Professor at Harvard University. The author is grateful to
Randy Kennedy, Martha Minow, and Adrian Vermeule for excellent comments on a previous draft and to Satish Reginald
for excellent comments and valuable research assistance.
© 2021 Cass R. Sunstein. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0
International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00021
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raise questions under the Due Process Clause).1 But these two propositions leave open
questions. When, exactly, is a restriction discriminatory? And with what level of deference,
or instead skepticism, ought courts to answer that question?
The U.S. Supreme Court gave partial answers to these questions in Roman Catholic
Diocese of Brooklyn v. Cuomo.2 Its answer to the first question was that a restriction would
be deemed discriminatory whenever a state burdens places of worship while also exempting
institutions that are relevantly similar to them.3 Taken as such, that answer should not be
controversial, although as we shall see, it is far from easy to apply (which is why the issue in
Roman Catholic Diocese divided the Justices). The Court’s answer to the second question
was clear and of potentially enduring importance: with very little deference.4 For obvious
reasons, that answer should be controversial, and its scope remains to be clarified.
I offer two arguments here. The first is that because of the serious health effects of the
pandemic, and because of the plausibility of a plea for judicial respect for complex choices
by elected officials, Roman Catholic Diocese can reasonably be seen as a kind of anti-
Korematsu5—as a strong signal of judicial solicitude for constitutional rights and of judi-
cial willingness to protect against discrimination, even under emergency circumstances in
which life is on the line. The second argument is that Roman Catholic Diocese can also and
equally be seen as a vindication of Justice Robert Jackson’s argument in Railway Express,6
in which he called for relatively ready invocation of antidiscrimination principles, as op-
posed to liberty principles, on the ground that the former, unlike the latter, trigger political
safeguards against unjustified actions.7
The two claims are not meant to offer a final judgment about whether Roman Catholic
Diocese was rightly decided on its particular facts (although I will have something to say
about that question). And notwithstanding those claims, Roman Catholic Diocese leaves
some important questions open. The first is large: in deciding whether religious institu-
tions are subject to discrimination, how shall we identify the comparison cases in the com-
plex context of a pandemic? A claim of discrimination requires a comparator, and in
Roman Catholic Diocese, and in other cases of arguable discrimination in the context of
the pandemic, identification of the comparator is not straightforward. The second is even
larger: is Roman Catholic Diocese best taken as a general repudiation of the idea of judicial
1
2
3
4
5
6
7
See Emp. Div. v. Smith, 494 U.S. 872 (1990).
141 S. Ct. 63 (2020) (per curiam).
See id. at 66–67.
See id. at 68. (“Members of this Court are not public health experts.
cannot be put away and forgotten.”)
Korematsu v. United States, 323 U.S. 214 (1944).
Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 111–17 (1949) ( Jackson, J., concurring).
Id. at 111–12 ( Jackson, J., concurring).
. . . But even in a pandemic, the Constitution
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OUR ANTI-KOREMATSU
deference to officials in emergency conditions,8 or is it instead best taken as a reflection of
solicitude for religious institutions in particular? The answers to both questions remain
unclear.
II.
Roman Catholic Diocese arose in response to an executive order from New York Governor
Andrew Cuomo, which was designed to control the spread of the pandemic. In some ways,
Cuomo took a standard approach to the problem. He divided the state into various zones:
red, orange, yellow, and green.9 The zones were defined by reference to infection rates. Red
zones were those in which infection rates had spiked.10 The immediately surrounding
areas were designated as orange, and the outlying areas were deemed yellow.11 The severity
of the restrictions followed directly from the designation. In red zones, for example, the
number of people allowed to assemble would be the lesser of (a) ten or (b) twenty-five
percent of maximum capacity.12 In orange zones, the corresponding number would be
the lesser of (a) twenty-five or (b) thirty-three percent of maximum capacity.13 In yellow
zones, the restriction was fifty-five percent of capacity.14
In October 2020, Governor Cuomo designated parts of Brooklyn and Queens as red,
orange, and yellow.15 The Roman Catholic Diocese of Brooklyn and Agudath Israel of
America brought suit, contending that the restrictions in red zones and orange zones were
discriminatory and unduly strict and thus were in violation of the Free Exercise Clause.16
The district court rejected that argument. On the basis of evidence and testimony, it con-
cluded that the restrictions had been “crafted based on science and for epidemiological
purposes.”17 It explicitly recognized the difficulty of identifying the comparable institutions
with which to test the claim of discrimination. For example, the regulations treated reli-
gious gatherings more favorably than public lectures, concerts, and theatrical perfor-
mances.18 At the same time, they treated such gatherings less favorably than “essential
businesses,” which included banks and grocery stores.19 In terms of the relevant health
8
9
10
11
12
13
14
15
16
17
18
19
On the general question, see GEOFFREY STONE, PERILOUS TIMES (2005).
Roman Catholic Diocese of Brooklyn v. Cuomo, 493 F. Supp. 3d 118, 121 (E.D.N.Y. 2020).
Id.
Id. at 122.
Id.
Id.
Id.
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 76 (2020) (Breyer. J., dissenting).
See id. at 76–78.
Id. at 76 (quoting Roman Catholic Diocese, 495 F. Supp. 3d at 131).
Id.
Id.
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risks, however, the court concluded that essential businesses were distinguishable, and it
also expressed a reluctance to “second guess the State’s judgment about what should qual-
ify as an essential business.”20 The Second Circuit Court of Appeals declined to issue a
preliminary injunction, although it asked for full briefing.21
In an unsigned per curiam opinion, the U.S. Supreme Court rejected the analysis of the
district court.22 Its principal conclusion was that the applicants were likely to succeed on
the merits because the restrictions did not meet “the minimum requirement of neutrality”
to religion.23 As the Court had it, “they single out houses of worship for especially harsh
treatment.”24 To explain this conclusion, the Court noted that essential businesses,
exempted from red zone restrictions, included “things such as acupuncture facilities, camp
grounds, garages, as well as many whose services are not limited to those that can be
regarded as essential, such as all plants manufacturing chemicals and microelectronics
and all transportation facilities.”25 The Court added that in orange zones, the “disparate
treatment is even more striking.”26 In such zones, nonessential businesses are permitted to
decide how many people to admit, whereas “attendance in houses of worship is limited to
25 persons.”27 As a result, there would be “troubling results”—as, for example, when a
large store could have hundreds of people shopping there on a particular day, while a
nearby church would be limited to ten to twenty-five people.28
The discrimination did not necessarily require invalidation, but it did trigger “strict
scrutiny,” mandating a demonstration that the measures were narrowly tailored to serve
a compelling state interest.29 Such a demonstration might serve to establish the requisite
neutrality, showing that an animus against religion or religious groups, or insufficient
20
21
22
23
24
25
26
27
28
29
Id. (quoting Roman Catholic Diocese, 495 F. Supp. 3d at 130).
Agudath Israel v. Cuomo, 983 F.3d 620 (2d Cir. 2020), rev’g and remanding Roman Catholic Diocese of Brooklyn
v. Cuomo, 493 F. Supp. 3d 118 (E.D.N.Y. 2020).
The decision in Roman Catholic Diocese might be taken as a departure from the direction indicated by two
decisions earlier during the pandemic in which the Court denied applications for injunctive relief from houses
of worship. See South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020); Calvary Chapel Dayton
Valley v. Sisolak, 140 S. Ct. 2603 (2020). Justice Gorsuch embraced the change in tack, declaring, “Even if the
Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a
nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.”
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (Gorsuch, J., concurring).
Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. at 66 (quoting Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U.S. 520, 533 (1993)). The latter case involves the question of discriminatory exemptions, of course
at issue in Roman Catholic Diocese.
Id.
Id.
Id.
Id.
Id.
Id.
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OUR ANTI-KOREMATSU
concern for them, was not responsible for the relevant discrimination. With respect to
COVID-19, the state interest was clearly compelling, but the restriction was not narrowly
tailored.30 Among other things, the state had not demonstrated that a less restrictive
approach to houses of worship would cause serious health risks. For example, “the
maximum attendance at a religious service could be tied to the size of the church or syn-
agogue.”31 Most of the targeted churches could seat 500 people, and some could seat as
many as 1,000.32 “It is hard to believe that admitting more than 10 people to a 1,000-seat
church or 400-seat synagogue would create a more serious health risk than the many other
activities that the State allows.”33 With this point, the Court seems to be raising the
possibility that the restrictions would fail rationality review, although, of course, it was
applying strict scrutiny.
The most noteworthy feature of the per curiam opinion is the absence of deference to
state officials in a context in which deference might well be expected. To be sure, the Court
did not say that restrictions on personal liberty, as such, would be subject to strict scrutiny.
But it did say that whenever religious institutions were treated differently from similarly
situated others, the discrimination must be shown to be narrowly tailored. The Court did
not merely announce that principle; it applied it. Because narrower tailoring is almost
always imaginable, and, because some exempted institutions might often be seen to be
similarly situated to houses of worship, the Court’s reasoning can be taken to be a strong
signal that whenever some businesses or other institutions are exempted as “essential,” a
failure to exempt houses of worship will run into serious trouble.34
It is also worth pausing over the theoretical foundations of the Court’s approach to the
discrimination question. In some cases, strict scrutiny is a way of “flushing out” imper-
missible purpose. If female job applicants are treated worse than male job applicants, and
if the government’s interest (in, say, good performance) can be promoted without discrim-
ination, we have reason to think that some kind of animus lies behind the unequal treat-
ment. We could easily imagine cases of discrimination against religious institutions that
can be analyzed in the same way. But in Roman Catholic Diocese, it is hard to defend the
30
31
32
33
34
Id.
Id.
Id. at 67.
Id. After the application for injunctive relief was filed, Governor Cuomo greatly lessened restrictions on the houses
of worship at issue. Id. However, the Court concluded that injunctive relief was still appropriate because “the
applications remain under a constant threat” of reclassification that could disrupt service attendance while waiting
for judicial relief. Id.
In response to the Court’s signal in Roman Catholic Diocese, some states loosened the restrictions imposed on
houses of worship. See High Plains Harvest Church v. Polis, 141 S. Ct. 527, 527 (2020) (Kagan, J., dissenting)
(“The State has explained that it took that action in response to this Court’s recent decision [in Roman Catholic
Diocese].”).
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proposition that New York was seeking to “get” places of worship or that it was animated
by some kind of intention to hurt them. It would be more reasonable to think that the
Court’s approach was flushing out something like “selective sympathy and indifference,”35
in the form of insufficient focus on, attention to, or respect for the interests of those who
run houses of worship, work for them, and depend on them.
The very distinction between “essential” and “nonessential” services and businesses,
and including places of worship in the latter category, might be taken as a kind of insult.
It is not too speculative to suggest that the terminology helped trigger the Court’s atten-
tion. Are places of worship not “essential”? Are they less essential than grocery stores? If
New York had not used provocative words of this kind and had spoken more specifically
in terms of relevant numbers, perhaps the Court would have found the question of
discrimination more challenging.
III.
A series of separate opinions offered different perspectives on the problem. Justice Gorsuch
concurred, strongly emphasizing the need to justify discrimination, even under circum-
stances of a pandemic: “Government is not free to disregard the First Amendment in times
of crisis. [W]e may not shelter in place when the Constitution is under attack. Things never
go well when we do.”36 He noted that the category of essential services was very broad,
including hardware stores, liquor stores, and bicycle repair shops.37 The breadth of that
exemption led Justice Gorsuch to some unusually harsh rhetoric, even an accusation of
bad faith:
So, at least according to the Governor, it may be unsafe to go to church, but it is always
fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon
exploring your distal points and meridians. Who knew public health would so per-
fectly align with secular convenience?38
The Constitution does not permit this:
The only explanation for treating religious places differently seems to be a judgment
that what happens there just isn’t as “essential” as what happens in secular spaces.
Indeed, the Governor is remarkably frank about this: in his judgment laundry and
35
36
37
38
Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1 (1976).
Roman Catholic Diocese of Brooklyn, 141 S. Ct. at 70 (Gorsuch, J., concurring).
Id.
Id.
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OUR ANTI-KOREMATSU
liquor, travel and tools, are all “essential” while traditional religious exercises are not.
That is exactly the kind of discrimination the First Amendment forbids.39
If this is not a claim about forbidden animus—and it might well be—it is the closest
thing to it. Whether or not he was speaking of active hostility, Justice Gorsuch might be
taken to be saying that houses of worship were “inessential,” a kind of dispensable hobby,
perhaps like a chess club. In a separate concurrence, Justice Kavanaugh wrote more
cautiously, noting that New York’s numerical restrictions were both unusually severe
and discriminatory.40 He added (convincingly) that “it does not suffice for a State to point
out that, as compared to houses of worship, some secular businesses are subject to simi-
larly severe or even more severe restrictions.”41 The problem was that
once a State creates a favored class of businesses, as New York has done in this case,
the State must justify why houses of worship are excluded from that favored class.
Here, therefore, the State must justify imposing a 10-person or 25-person limit on
houses of worship but not on favored secular businesses.42
Of course, it is true that courts “must afford substantial deference to state and local
authorities about how best
to balance competing policy considerations during the
pandemic.”43 At the same time, “judicial deference in an emergency or a crisis does not
mean wholesale judicial abdication, especially when important questions of religious
discrimination, racial discrimination, free speech, or the like are raised.”44 Note here the
breadth of his claim, covering not only religious discrimination but also racial discrimi-
nation and free speech and “the like.”
In dissent, Chief Justice Roberts did not disagree with the claim of unconstitutional
discrimination;45 instead, he bracketed that issue and emphasized a procedural point,
which is that New York had weakened its restrictions on the very houses of worship in
39
40
41
42
43
44
45
Id.
Id. at 72 (Kavanaugh, J., concurring) (noting that restrictions were more than others the Court had reviewed
during the pandemic).
Id. at 73 (citing Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 537–38 (1993)).
Id.
Id. at 73 (“The Constitution ‘principally entrusts the safety and the health of the people to the politically
accountable officials of the States.’” (quoting South Bay United Pentecostal Church v. Newsom, 140 S. Ct.
1613, 1613 (2020) (Roberts, C.J., concurring))).
Id. at 74.
Id. at 75 (Roberts, C.J., dissenting) (noting that “the challenged restrictions raise[ed] serious concerns under the
Constitution” and they were distinguishable from those at issue in others the Court had reviewed during the
pandemic).
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the case.46 For that reason, it was unnecessary to issue a preliminary injunction.47 In im-
portant respects, Justice Breyer, joined by Justices Sotomayor and Kagan, essentially
agreed with this procedural point.48 He emphasized as well that the claim of discrimina-
tion might not be made out, for “the risk of transmission is higher when people are in
close contact with one another for prolonged periods of time, particularly indoors or in
other enclosed spaces.”49 He added that it was important to give a degree of deference to
“elected branches of state and national governments, which marshal scientific expertise
and craft specific policies” in response to fresh developments.50
Justice Sotomayor, joined by Justice Kagan, rejected the claim of illicit discrimination.
In her view, New York was concerned about “large groups of people gathering, speaking,
and singing in close proximity indoors for extended periods of time.”51 Hence it applies
“[s]imilar or more severe restrictions . . . to comparable secular gatherings, including lec-
tures, concerts, movie showings, spectator sports, and theatrical performances, where large
groups of people gather in close proximity for extended periods of time.”52 At the same
time, the state “treats more leniently only dissimilar activities, such as operating grocery
stores, banks, and laundromats, in which people neither congregate in large groups nor
remain in close proximity for extended periods.”53 For example, “bike repair shops and
liquor stores generally do not feature customers gathering inside to sing and speak together
for an hour or more at a time.”54 For that reason, there was no free exercise violation.
There is a question whether Justice Sotomayor’s rejoinder is factually correct. Let us
suppose, plausibly, that New York’s restrictions were too draconian to serve its purposes
because the Roman Catholic Diocese itself could operate without allowing people to con-
gregate in large groups in close proximity for extended periods. Intriguingly, and some-
what puzzlingly, the per curiam opinion did not respond in terms to Justice Sotomayor’s
argument. Treating grocery stores, banks, laundromats, and other places less restrictively
than houses of worship may or may not be discriminatory; everything depends on whether
they are relevantly similar. Perhaps it is true that attention to whether people congregate
46
47
48
49
50
51
52
53
54
Id.
Id. Chief Justice Roberts also spoke in terms of the need for deference to public officials. See id. (“The Governor
might reinstate the restrictions. But he also might not. And it is a significant matter to override determinations
made by public health officials concerning what is necessary for public safety in the midst of a deadly pandemic.”).
Id. at 76–77 (Breyer, J., dissenting).
Id. at 78.
Id.
Id. (Sotomayor, J., dissenting).
Id. at 78–79 (quoting S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J.,
concurring)).
Id.
Id.
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OUR ANTI-KOREMATSU
in large groups and remain in close proximity for extended periods could establish that
New York had not discriminated at all. Or perhaps not.
IV.
The Court’s analysis in Roman Catholic Diocese is in evident contrast with that in Korematsu
v. United States, where the question also involved the constitutionality of discrimination
under emergency conditions.55 Korematsu is part of the anti-canon of constitutional law
and indeed it might lead the list; the decision is widely regarded as a national shame, a
terrible stain on the United States and the Supreme Court itself.56 In 2018, the Court went
out of its way to disapprove of Korematsu.57 But from the standpoint of the present, it is
not adequate simply to dismiss Korematsu as a disgrace and a disaster. It indeed does
count as both, but before reaching that conclusion, it is important to investigate what
the Court actually said, which is of enduring interest.
The Court began its analysis by establishing, for the first time, the framework of strict
scrutiny. In its words,
all legal restrictions which curtail the civil rights of a single racial group are imme-
diately suspect. That is not to say that all such restrictions are unconstitutional. It is
to say that courts must subject them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of such restrictions; racial antagonism
never can.58
55
56
57
58
There is a voluminous literature. See, e.g., PETER IRONS, JUSTICE AT WAR (1993); LORRAINE BANNAI, ENDURING
CONVICTION: FRED KOREMATSU AND HIS QUEST FOR JUSTICE (2015); Dean M. Hashimoto, The Legacy of Korematsu
v. United States: A Dangerous Narrative Retold, 4 UCLA ASIAN PAC. AM. L.J. 72 (1996).
See Charlie Savage, Ruling on Japanese Internment Is Finally Tossed Out, N.Y. TIMES ( June 26, 2018), https://www
.nytimes.com/2018/06/26/us/korematsu-supreme-court-ruling.html (“[Korematsu] has long stood out as a stain
that is almost universally recognized as a shameful mistake.”); Noah Feldman, Why Korematsu Is Not a Precedent,
N.Y. TIMES (Nov. 18, 2016), https://www.nytimes.com/2016/11/21/opinion/why-korematsu-is-not-a-precedent
.html; see also Bob Egelko, Scalia’s Favorite Opinion? You Might Be Surprised, SFGATE (Oct. 30, 2015, 9:00 AM),
https://blog.sfgate.com/politics/2015/10/30/scalias-favorite-opinion-you-might-be-surprised/ (documenting that
Justice Scalia called Justice Jackson’s dissent in Korematsu the Supreme Court’s most admirable opinion, noting
“it was nice to know at least somebody on the court realized that that was wrong”).
See Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018) (“The dissent’s reference to Korematsu . . . affords this Court
the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided,
has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’”
(quoting Korematsu v. United States, 323 U.S. 124, 148 (1944) ( Jackson, J., dissenting)).
Korematsu, 323 U.S. at 216 (majority opinion).
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That is, of course, the heart of the framework in Roman Catholic Diocese. Intriguingly, the
Court offered these propositions without seriously engaging the text of the Constitution or
the original understanding. After all, the Equal Protection Clause does not apply to the
national government, whose actions were at issue in the case—which means that the Court
must have been speaking, in some unclear sense, of the requirements of the Due Process
Clause.59
The question in Korematsu, then, was whether some “pressing public necessity” really
was at work. To answer that question, the Court collapsed what Roman Catholic Diocese
treated as two questions: whether the state interest was compelling and whether the
exclusion measure was sufficiently tailored to its achievement. The Court concluded that
even under strict scrutiny, the government had not violated the Constitution, for “exclu-
sion from a threatened area, no less than curfew, has a definite and close relationship to
the prevention of espionage and sabotage. The military authorities, charged with the pri-
mary responsibility of defending our shores, concluded that curfew provided inadequate
protection and ordered exclusion.”60
No one argued, of course, that most Japanese Americans were disloyal. Nonetheless,
“exclusion of those of Japanese origin was deemed necessary because of the presence of an
unascertained number of disloyal members of the group.”61 To be sure, distinguishing
between the loyal and the disloyal and imposing the exclusion order accordingly would
have been much better, but according to the military authorities, doing that was simply
not practical62:
The judgment that exclusion of the whole group was . . . a military imperative
answers the contention that the exclusion was in the nature of group punishment
based on antagonism to those of Japanese origin. That there were members of the
group who retained loyalties to Japan has been confirmed by investigations made
subsequent to the exclusion.63
The Court acknowledged the objection that “we are dealing here with the case of
imprisonment of a citizen in a concentration camp solely because of his ancestry, without
59
60
61
62
63
See Bolling v. Sharpe, 347 U.S. 497, 499 (1954) (“The Fifth Amendment . . . does not contain an equal protection
clause as does the Fourteenth Amendment which applies only to the states. But the concepts of equal protection
and due process . . . are not mutually exclusive.”); Adarand Constructors v. Peña, 515 U.S. 200, 226–27 (1995);
Cass R. Sunstein, Sexual Orientation and the Constitution: A Note on the Relationship Between Due Process and
Equal Protection, 55 U. CHI. L. REV. 1161 (1988).
Korematsu, 323 U.S. at 218.
Id.
See id. at 219.
Id.
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OUR ANTI-KOREMATSU
evidence or inquiry concerning his loyalty and good disposition towards the United
States.”64 But in the Court’s view, the objection was not convincing:
[T]o cast this case into outlines of racial prejudice, without reference to the real mil-
itary dangers which were presented, merely confuses the issue. Korematsu was not
excluded from the Military Area because of hostility to him or his race. He was
excluded because we are at war with the Japanese Empire, because the properly con-
stituted military authorities feared an invasion of our West Coast and felt con-
strained to take proper security measures, because they decided that the military
urgency of the situation demanded that all citizens of Japanese ancestry be segregated
from the West Coast temporarily, and, finally, because Congress, reposing its confi-
dence in this time of war in our military leaders—as inevitably it must—determined
that they should have the power to do just this.65
If strict scrutiny were really at work, of course, or indeed if anything in its vicinity were at
work, the Court could not possibly have written these sentences. At the very least, less
restrictive measures, not rounding up and segregating Japanese Americans, would have
been required.
V.
Seen through the lens of Korematsu, Roman Catholic Diocese is a puzzle and difficult to
understand. It would have been simple, through that admittedly distorting lens, to make three
points about New York’s restriction. The first is that officials had made difficult choices based
on evolving evidence. The second is that courts should be reluctant to second-guess those
judgments. The third is that in light of the relevant considerations, including the size of
groups and how long people in them would be proximate to one another, there was no dis-
crimination at all. Whether that claim is true would depend, of course, on the evidence.
Seen through the lens of Roman Catholic Diocese, Korematsu was at best reckless. Dis-
crimination against Japanese Americans was sufficient to trigger strict scrutiny. Indeed,
discrimination was unambiguous, as it was not in Roman Catholic Diocese. Protecting
the nation against serious threats was a compelling interest, but the exclusion order was
not narrowly tailored to protecting that interest. To conclude that it was, we would have to
agree that (1) some Japanese Americans were intensely loyal to Japan and deeply disloyal
to the United States; (2) some Japanese Americans were not merely disloyal to the United
States but also had both the willingness and the capacity to engage in some form of
64
65
Id. at 223.
Id.
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espionage, and effectively so, against the United States; (3) a curfew order, and other
lesser restrictions, would not provide sufficient protection against the risks associated with
(2) above; and (4) the authorities lacked the capacity to make some kind of judgment
about the very large number of Japanese Americans who undoubtedly did not pose a
security risk, sufficient to exempt them from the exclusion order.
Investigation of (1), (2), (3), and (4) would have made it impossible to uphold the
exclusion order. Roman Catholic Diocese makes that conclusion clear, and it is our anti-
Korematsu for that reason.
Of course, it is true that Roman Catholic Diocese is not on all fours with Korematsu,
and that those who despise the latter might also reject the former. To some of them, the
very comparison might seem outrageous and even odious. On one view, Korematsu is
about palpable discrimination, rooted in the basest form of prejudice against what was
then a politically weak group. The exclusion order was based on racial animus, and the
Court’s decision to uphold the order was effectively a license to discriminate. By contrast,
the restrictions in Roman Catholic Diocese—the objection goes—were either (1) entirely
reasonable, given the context (see below), or (2) a reflection of something like inadvertence
or insufficient regard, and nothing at all like what happened in California in the 1940s.
This objection puts a bright spotlight on the limitations of analogical reasoning.
Roman Catholic Diocese and Korematsu are alike in many ways, and different in many
ways as well. The claim here is that insofar as the Roman Catholic Diocese Court was will-
ing to vindicate antidiscrimination principles under exceedingly unusual circumstances
posing severe risks, and to do so employing genuinely strict scrutiny, it reflected an ap-
proach that is directly antithetical to that in Korematsu.
VI.
We have seen that although Roman Catholic Diocese was a free exercise case, not an equal
protection case, it involved a claim of discrimination. Like other discrimination cases, it is
easily understood to have a kind of democracy-reinforcing function.66 Nothing in the
decision would forbid New York from imposing a more draconian set of restrictions, as
long as they are neutral. Suppose, for example, that New York had done what it did, but
with one exception: it did not exempt “essential businesses.” If that were what it had done,
there would be no discrimination against houses of worship and, hence, no free exercise
objection under the Court’s framework.
We can understand the framework as creating political safeguards. A selective set of
restrictions, exempting some but not others, weakens those safeguards because the natural
66
See JOHN HART ELY, DEMOCRACY AND DISTRUST (1981).
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political objections to across-the-board restrictions are not called into play. After all, many
businesses have been exempted, and so they have no reason to object. Across-the-board
restrictions would undoubtedly trigger significant backlash—and thus would be allowed to
come into play only if they had compelling justifications. The central idea here was nicely
sketched by Justice Robert Jackson in a compelling, flawed opinion that deserves far more
contemporary attention than it receives.
The problem in Railway Express Agency, Inc. v. New York involved a New York City
ordinance that prohibited anyone from operating an “advertising vehicle”—a vehicle that
sells its exterior for advertising purposes—on the streets.67 From the general prohibition,
the ordinance exempted advertising of the owner’s business placed on vehicles engaged in
the ordinary business of the owner and not used mainly or only for advertising.68
Railway Express, a company operating nearly two thousand trucks for advertising pur-
poses, challenged the New York law under the Due Process and Equal Protection Clauses.69
The U.S. Supreme Court upheld the law, emphasizing that judges should defer to legislatures
and noting that the local authorities might have believed that people who advertise their own
wares on trucks do not present the same traffic problems.70 The Court added:
The fact that New York City sees fit to eliminate from traffic this kind of distraction
but does not touch what may be even greater ones in a different category, such as the
vivid displays on Times Square, is immaterial. It is no requirement of equal protec-
tion that all evils of the same genus be eradicated or none at all.71
In this way, the Court rejected the idea that the principle of generality imposed serious limits
on legislative classifications.
Justice Jackson took this seemingly mundane case as an occasion for celebrating the
use of the Equal Protection Clause as a guarantor of the rule of law, understood as a ban
on selectivity. Justice Jackson began by contrasting the Due Process Clause with the Equal
Protection Clause.72 The Due Process Clause does not require equality; instead, it imposes
a flat barrier to legislative enactments. In this way it “leaves ungoverned and ungovernable
67
68
69
70
71
72
Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 107–08 (1949).
Id.
Id. at 108–09.
Id. at 109–10 (“We do not sit to weigh evidence on the due process issue in order to determine whether the
regulation is sound or appropriate; nor is it our function to pass judgment on its wisdom.” Id. at 109. “It is by
such practical considerations based on experience rather than by theoretical inconsistencies that the question of
equal protection is to be answered.” Id. at 110.).
Id. at 110.
Id. at 111 ( Jackson, J., concurring).
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conduct which many people find objectionable.”73 But the Equal Protection Clause is not
similarly disabling: “It merely means that the prohibition or regulation must have a broader
impact.”74 The requirement of breadth in turn serves a democratic function:
[T]here is no more effective practical guaranty against arbitrary and unreasonable
government than to require that the principles of law which officials would impose
upon a minority must be imposed generally. Conversely, nothing opens the door to
arbitrary action so effectively as to allow those officials to pick and choose only a
few to whom they will apply legislation and thus to escape the political retribution that
might be visited upon them if larger numbers were affected. Courts can take no better
measure to assure that laws will be just than to require that laws be equal in operation.75
In Justice Jackson’s view, a requirement of generality helps to flush out illegitimate
reasons for legislation. If the law is imposed on some but not all, it may be based on
hostility or some form of prejudice. Perhaps the law is a means of oppressing a particular
group; if it cannot be passed unless it is partial, we may suppose that it is undergirded by
something other than the articulated justification. Perhaps it is a form of rent-seeking or
supported solely by private pressure. Perhaps it reflects selective sympathy and indiffer-
ence; consider Roman Catholic Diocese in that light.
There is much good sense in Jackson’s discussion. A system of law should require general
justifications for the denial of benefits or the imposition of burdens. Moreover, the require-
ment of generality can produce political checks, where opposition would otherwise be too
weak to prevent oppressive legislation from going forward. But a problem remains: How are
we to know when a seemingly narrow enactment should be applied “generally”? Is it illegit-
imate, for example, to exempt labor unions from the antitrust laws, electric cars from the
Clean Air Act, or small businesses from occupational safety and health regulation? Is it
illegitimate to say that blind people cannot receive drivers’ licenses? These are all examples
of rules that might be thought to have escaped from the requirement of generality.
To determine whether generality is required, it is necessary to ascertain whether there
are relevant similarities and relevant differences between those burdened and those not
burdened by legislation. No one thinks that “generality” should be required when relevant
differences exist. No one supposes that the speed limit laws are unacceptable because they
do not apply to police officers and ambulance drivers operating within the course of their
official duties. Indeed, Justice Jackson did not even vote to invalidate the New York law:
73
74
75
Id. at 112.
Id.
Id. at 112–13.
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“[T]he hireling may be put in a class by himself and may be dealt with differently than
those who act on their own.”76
We should conclude that any requirement of equal treatment depends on a substantive
account establishing whether there are relevant differences between the cases to which a
law applies and the cases to which it does not. If a law says that in order to receive federal
employment, everyone who is not white must take certain tests, we can easily see that the
grounds for the distinction are illegitimate. In such a case, Justice Jackson’s analysis seems
sufficient and unimpeachable. But sometimes the plea for generality is based on more con-
troversial grounds. In such cases, the requirement of generality hides a range of substan-
tive judgments, and those judgments cannot be supplied by the requirement itself.
In fact, that helps to explain the disagreement between the Court and Justice Soto-
mayor in Roman Catholic Diocese. Were houses of worship situated similarly to essential
businesses? Nothing in the idea of generality could answer that question.
VII.
That question signals that even if we put the procedural posture of the case to one side,
Roman Catholic Diocese may not have been an easy case. The per curiam opinion makes a
reasonable argument that New York did in fact discriminate against houses of worship. But
that question depends on some difficult issues of fact, which intuition cannot answer. To
know the risks associated with various buildings and institutions, we need to answer several
questions. Does it matter if people are together for ten minutes, or thirty, or sixty? How much
does that matter? How much does proximity matter? If people speak together or sing
together, what are the incremental risks? What happens, exactly, in drugstores and grocery
stores, and how does it compare to what happens in churches and synagogues?
To answer those questions, it is not enough to list institutions and to sneer (as Justice
Gorsuch did). It is not enough to declare that essential businesses, exempted from red zone
restrictions, included “things such as acupuncture facilities, camp grounds, garages, as well
as many whose services are not limited to those that can be regarded as essential, such as all
plants manufacturing chemicals and microelectronics and all transportation facilities.”77 It is
necessary to know much more about those institutions. It is also necessary to note that in a
pandemic, the line-drawing problems are challenging. If one business is deemed essential
that seems relevantly like a church, or if two are, is it enough for invalidation? And what
kinds of factual demonstration are necessary, exactly, to show relevant similarity?
The point is not that Roman Catholic Diocese was wrongly decided. It is that the
issue in the case was not easy, which fortifies the conclusion that as a matter of
76
77
Id. at 115.
See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 70 (2020) (per curiam).
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institutional role, and of discrimination law, the Court’s approach is likely to have
enduring importance.
VIII.
I have been proceeding as if Roman Catholic Diocese reflects a general disposition toward
careful scrutiny of discrimination in the midst of a pandemic and perhaps under emer-
gency circumstances more broadly. But importantly, the case involved the Free Exercise
Clause, not discrimination in general. Those with realist inclinations might emphasize
that within the current Supreme Court, some of the Justices are greatly concerned about
discrimination against religious believers and religious institutions in particular and are
interested in moving constitutional law in directions that are highly protective of their
concerns. Indeed, realists might note that an important division on the Court can be found
precisely there.
More crudely, the Justices who are conventionally described as “conservative” tend to
side with religious organizations and to seek doctrinal changes in directions that would
please them, whereas the Justices conventionally described as “liberal” are less likely to side
with those organizations and are less likely to seek such changes. Indeed, some of the for-
mer Justices have expressed a lack of enthusiasm for the Smith case,78 which held that
neutral rules are not subject to invalidation under the Free Exercise Clause, even if they
have a severe or disparate impact on religious believers.79 Roman Catholic Diocese did not
involve a mere disparate impact but for those who find its claim of discrimination uncon-
vincing, it might be tempting to read the opinion as a tacit rejection of Smith. Perhaps it is
best taken as a rejection of Smith rather than a case of discrimination.
To put the point more sharply: Suppose that in a pandemic, a state adopted restric-
tions that arguably discriminated on the basis of race or sex. Should we expect the Court to
issue a kind of anti-Korematsu? Would it show the same sort of suspicion and solicitude
that it showed in Roman Catholic Diocese? It is, of course, hard to answer such questions
without knowing the details. If a state allowed male-owned businesses to remain open but
forced female-owned businesses to close, it would, of course, be acting unconstitutionally,
and the Court would certainly say so. But suppose that the exempted businesses were pre-
dominantly white and that others, not exempted, were predominately African American.
Suppose that there is an arguable difference between the two sets of businesses—but no
more than arguable. Would we see a repeat of Roman Catholic Diocese? Would one of the
Justices write an opinion like that of Justice Gorsuch? It is not unfair to wonder whether
we would see words like these, a variation on his in Roman Catholic Diocese: “The only
78
79
See Kennedy v. Bremerton Sch. Dist., 139 S. Ct. 634 (2019).
Emp. Div. v. Smith, 494 U.S. 872, 883 (1990).
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explanation for treating institutions in predominantly African American places differently
seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in
predominantly white places.”
However that may be, Roman Catholic Diocese is likely to be of enduring importance.
It reflects intense concern about discrimination, even in extraordinary circumstances,
where human lives are on the line. In the face of a plausible claim of discrimination, it
reflects a willingness to second-guess official judgments, even though those judgments
were not self-evidently mistaken. It is our anti-Korematsu.
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