Elisabeth Haub Law School of Law
Pace University
Land Use Law Center
Supervisor: John R. Nolon, Distinguished Professor
Blog No. 6 of the Land Use, Human Health, and Equity Project
Editors: Jessica Roberts, Jillian Aicher, Colt Watkiss
Contributing Researcher: Jillian Aicher[*]

As the COVID-19 pandemic continues, questions persist regarding the limits on state and local authority to regulate. The Land Use, Human Health, and Equity project has reviewed cases considering state and local emergency powers in relation to property rights and land use and analyzed recent individual constitutional rights issues arising during the public health crisis. Many COVID-related cases have addressed whether and to what extent the deferential Jacobson precedent should factor into consideration of various constitutional claims, including Freedom of Religion analyses. The Supreme Court’s November 25, 2020 decision in Roman Catholic Diocese of Brooklyn v. Cuomo temporarily enjoined COVID-related occupancy limits on religious gatherings, using traditional strict scrutiny analysis. The majority opinion implicitly found Jacobson inapplicable to First Amendment claims. However, Jacobson’s deferential review will likely remain the rule that courts use to evaluate restrictions on land use such as occupancy requirements, partial or temporary closures, moratoria and other limits on the use of land by secular owners and operators.

The 1905 case Jacobson v. Massachusetts upheld a state law requiring vaccination as a valid exercise of state police power during a smallpox outbreak. As plaintiffs across the country brought cases challenging COVID-related executive orders imposing stay at home restrictions, gathering limits, and business closures, many courts cited Jacobson as a basis for exhibiting significant deference to state legislatures, executives, and public health authorities. In South Bay United Pentecostal Church v. Newsom, the Supreme Court declined to enjoin a California Executive Order that plaintiffs claimed discriminated against religion, and Chief Justice Roberts’ concurring opinion cited Jacobson to emphasize judicial deference to “politically accountable officials of the States.” In Legacy Church v. Kunkel, a New Mexico District Court cited Jacobson and Chief Justice Roberts’ South Bay concurrence in denying an injunction of a public health order limiting religious gatherings, stating, “[a]ctivities’ relative danger regarding COVID-19 presents an empirical question on which unelected judges, according to the Supreme Court, are not well-suited to opine without more extensive factual findings than are present here.”

In the Roman Catholic Diocese of Brooklyn case, the Supreme Court enjoined enforcement of a COVID-related executive order limiting religious gatherings to 10 people in red zones and 25 in orange zones. The majority opinion did not mention Jacobson in considering plaintiffs’ likelihood of success on the merits but rather used strict scrutiny. While the majority recognized “[s]temming the spread of COVID-19 is unquestionably a compelling governmental interest,” it found the limits would likely fail to meet strict scrutiny as they were “far more restrictive” than those in South Bay and not narrowly tailored. Justice Gorsuch’s concurring opinion explicitly rejected Jacobson’s applicability to First Amendment cases, asserting Jacobson “involved an entirely different mode of analysis, an entirely different right, and an entirely different kind of restriction.”

While the Diocese opinion will have impacts on lower court analyses in COVID-related religious freedom cases, neither the majority opinion nor Justice Gorsuch’s concurrence overrules Jacobson or limits judicial deference for claims that would normally receive rational basis review. Therefore, the decision will not likely weaken the deference courts have long afforded land use regulations, business limits, and rent control ordinances in emergency and non-emergency contexts. For example, local regulations requiring business closures compare to the local laws prohibiting a brick kiln and livery stable upheld as valid exercises of police power in the 1915 Supreme Court cases Hadacheck v. Sebastian and Rienman v. Little Rock. Current state designation of essential and nonessential businesses, based on public welfare considerations, echoes Virginia’s decision to destroy Cedar trees to save apple orchards, which the Supreme Court upheld as reasonably based on social policy concerns in the 1928 case Miller v. Schoene. Profit adjusted recovery commercial leases, or “percentage rent” agreements adopted in response to COVID-19, are similar to the San Jose rent control ordinance upheld as a rational police power exercise in Pennell v. City of San Jose because both aim to protect landlords’ and tenants’ financial interests in emergency situations. COVID-related eviction moratoria and temporary closures are akin to the 32-month development moratorium upheld in Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency, a case in which the Supreme Court held the temporal suspension of property rights is not a taking. Therefore, while the Diocese opinion will control Free Exercise and other strict scrutiny claims, and debates about the proper role of Jacobson in COVID cases may continue, the case will not likely alter traditional deference to state police power in land use decision-making.

[*] Jessica Roberts is a second year student at the Elisabeth Haub School of Law and  Research Assistant to Professor Nolon.
Jillian Aicher is a second year student at the Elisabeth Haub School of Law and Research Assistant to Professor Nolon.
Colt Watkiss is a first year student at the Elisabeth Haub School of Law and Land Use Law Center Volunteer.