52 F.4th 974
5th Cir.2022Background
- March–May 2020: City of Columbus issued an emergency ordinance closing many nonessential businesses (including Golden Glow Tanning) to slow COVID-19 spread.
- Golden Glow’s owner told city officials the salon could operate without close contact; city refused to exempt it.
- Golden Glow sued under 42 U.S.C. § 1983, alleging Equal Protection violation (unequal treatment versus churches, Wal‑Mart, liquor stores) and a Fifth Amendment taking.
- District court granted summary judgment for the City; Golden Glow appealed.
- Fifth Circuit: applied rational‑basis review, held tanning salons not similarly situated to churches or Wal‑Mart; assumed liquor stores similar but found the ordinance rationally related to public‑health goals.
- Court rejected per se taking claims (no physical invasion under Cedar Point; not a total loss under Lucas); Penn Central argument waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Equal Protection — disparate treatment of tanning salons | Golden Glow: ordinance treated salons worse than churches, Wal‑Mart, liquor stores without a rational basis | City: churches have First Amendment protection; Wal‑Mart is an essential retailer; tanning salons involve longer, enclosed, partially‑clothed exposures increasing transmission risk | Churches/Wal‑Mart not similarly situated; liquor stores assumed similar but classification survives rational‑basis review (public‑health rationale) |
| Level of Scrutiny for business closures | Golden Glow: deprivation of right to work demands strict scrutiny | City: right to work is not a recognized fundamental right; ordinary economic regulation meriting rational basis | Court applied rational‑basis (no fundamental right to work under existing precedent) |
| Takings Clause — per se taking / total deprivation | Golden Glow: closure was a per se physical taking (Cedar Point) or total deprivation of economically beneficial use (Lucas) | City: no government-authorized physical invasion; temporary regulatory restriction, not value‑destroying ban | No per se taking: Cedar Point and Lucas inapplicable; no compensable taking; Penn Central claim waived on appeal |
Key Cases Cited
- Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d 456 (5th Cir.) (upholding differential COVID restrictions under rational‑basis review)
- Tex. Ent. Ass’n v. Hegar, 10 F.4th 495 (5th Cir.) (explaining “similarly situated” requirement for equal protection)
- Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021) (per se physical taking where government grants access that appropriates owners’ right to exclude)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (total deprivation of all economically beneficial use can be a per se taking)
- Penn Central Transp. Co. v. N.Y.C., 438 U.S. 104 (1978) (multi‑factor balancing test for regulatory takings)
- City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (government classifications must not be so attenuated as to be arbitrary)
- Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (special constitutional protection for religious exercise in pandemic restrictions)
- F.C.C. v. Beach Comms., 508 U.S. 307 (1993) (upholding laws supported by any conceivable rational basis)