We are going to discuss our papers again, then review this case:

Cty. of Butler v. Wolf, No. 2:20-CV-677, 2020 WL 5510690 (W.D. Pa. Sept. 14, 2020)

Start at p. 21. I have added bookmarks and highlighted key passages. While the beginning of the case talks about 1st Amendment right to freedom of religion, the court does not really use it because its analysis of the religious restrictions was based on there not being a rational reason for allowing some business and political gatherings and church services. Note the court’s concern with the failure to apply restrictions to protests and to big commercial gatherings.  The most interesting parts are later in the case where the judge finds that the stay at home and business closing orders were unconstitutional under due process considerations and the 14th Amendment. This includes relying on Lochner, which has attracted criticism as it is generally regarded as having been overruled.

You should listen to the discussion of the case on the National Security Podcast. It is discussed by Prof Vladeck, whose article is misconstrued by the judge. This link goes to the start of the discussion, which lasts about 10 minutes: