In Butler v. Wolf, a federal judge has declared PA's gathering limits, stay at home order & prohibition on non-essential business operations (should they be reinstated) unconstitutional under the 1st and 14th Amendments. pacer-documents.s3.amazonaws.com/148/266888/157…
The court finds gathering limits trigger - & fail - intermediate scrutiny b/c they aren't narrowly tailored. Same argument made by Kavanaugh & others in religious liberty cases: "commercial gatherings" (aka retail shopping) are permitted while other gatherings aren't.
Following a few other judges, Stickman points to inconsistency of officials allowing & participating in protests against police violence, which exceeded permitted limits on gatherings.
Stickman also finds the classification of life-sustaining businesses violates equal protection because it fails rational basis review (and out-there holding)...
But, most controversially, the judge finds the prohibition on business that isn't life-sustaining violates a constitutionally protected right to earn a living, noting that the Supreme Court has never expressly repudiated Lochner v. New York (a *really* out-there holding).
I have to teach a class now, but I'll be back with more on this.
My essay w/ @steve_vladeck is cited very favorably by the court for the assertion that the Supreme Court's 1905 opinion in Jacobson shoudn't be read as requiring the judiciary to apply special standards of review during emergencies.
Our essay doesn't support revival of Lochnerism or other misapplications of ordinary standards of review.
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