Divided Court Strikes Down COVID-19 Restrictions on In-Home Religious Gatherings

On April 9, 2021, the U.S. Supreme Court ruled in Tandon v. Newsom, 593 U. S. ____ (2021) which California’s COVID-19 restrictions on religious gatherings in homes probably run afoul of the First Amendment’s Free Exercise Clause.

Facts of this Case

The case involves California’s COVID-19 restrictions on”parties,” described as”social circumstances which bring together individuals from different households at exactly the identical time in one area or place.” On November 13, 2020, the State issued guidance”[l]imiting presence at parties.” Under the Gatherings Guidance, people could attend a”private gathering” outdoors in all parts of the Condition, and inside in all counties except those called Tier 1 based on present health conditions. Such gatherings must be limited to no more than three households (whether indoor or outdoor), and attendees have to wear masks and physically distance away from one another.

The court concluded that the personal parties restrictions did not violate the Free Exercise Clause because they”[are] neutral and of general applicability.” Meanwhile, the Ninth Circuit Court of Appeals affirmed, agreeing that the State’s private parties restrictions are”neutral and generally applicable.” It rejected plaintiffs’ contention that the State unconstitutionally didn’t employ the same restrictions–such as the three-household limitation–to”a host of comparable secular activities,” such as”entering crowded train stations, airports, malls, salons, and retail shops, waiting in long check-out lines, and also riding buses.” It further revealed that the plaintiffs”are making the incorrect comparison since the record does not support that personal religious gatherings in homes are similar –in terms of risk to public health or sensible security measures to deal with that risk–to [the] commercial activities” listed by plaintiffs.

The plaintiffs sought aid in the Supreme Court, requesting it to grant an injunction. “Under these rules, Pastor Wong and Karen Busch can sit to get a haircut with 10 other individuals in a barbershop, consume in a half-full restaurant (using members of 20 different households ), or ride 15 other people on a city bus, but it is impossible for them to host three individuals from different households to get a Bible study inside or into their backyards. The State thus treats religious exercise far more harshly compared to secular activities,” they contended.

Supreme Court’s Decision

A divided Supreme Court granted the application for a preliminary injunction and enjoined enforcement of this Gatherings Guidance. Chief Justice John Roberts could have denied this application, as could Justice Elena Kagan, who filed a dissenting opinion joined by Justices Stephen Breyer and Sonia Sotomayor.

“Applicants are likely to be successful on the merits of their free exercise claim; they’re harmed by the lack of free exercise rights’for even minimal periods of time’; and the State has not shown that’general health could be imperiled’ by employing less restrictive steps,” the Court wrote in a per curium opinion. “Accordingly, applicants are eligible for an injunction pending appeal.”

The Court created four factors in support of its decision. Citing its previous conclusion in Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U.S. ___, ___–___ (2020), the Court said that government regulations aren’t neutral and generally applicable, and so trigger strict scrutiny under the Free Exercise Clause, whenever they treat any similar secular action more favorably compared to religious exercise. “It is no answer that a Condition treats some similar secular companies or other actions as poorly as or even less favorably compared to the religious exercise at issue,” the Court wrote. Second, the Court the highlighted that”whether two activities are comparable for purposes of the Free Exercise Clause must be pitted against the asserted government interest which justifies the regulation at issue,” noting that”[c]omparability is worried about the dangers various activities pose, not the explanations for why folks gather.”

Third, the Court said that the government has the burden to prove that the contested law satisfies strict scrutiny. Citing Judge Gorsuch in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___, ___ (2021), the Court found that to do this in this circumstance, it must do more than claim that specific risk factors”are always present in worship, or consistently absent in another secular activities” the government might allow. “Instead, narrow tailoring needs the government to demonstrate that measures less restrictive compared to their First Amendment action could not manage its interest in reducing the spread of COVID,” the Court wrote. “Where the government allows other actions to move together using precautions, it must demonstrate that the religious exercise at issue is more dangerous than these tasks even when the same precautions are applied. Otherwise, precautions which suffice for different tasks suffice for religious exercise also.”

Fourth, the Court noted that even if the government withdraws or modifies a COVID restriction in the class of litigation, that does not necessarily moot the case. “As long since a case isn’t moot, litigants otherwise eligible for emergency injunctive relief stay eligible for such relief where the applicants’stay under a constant danger’ that government officials may use their ability to reinstate the contested restrictions,” the Court wrote.

The Count went to apply the above principles to the facts of this case. First, the Court noted that California treats several similar secular tasks more favorably compared to at-home religious exercise, permitting hair salons, retail shops, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time. It moved on to emphasize that the Ninth Circuit did not conclude that those activities pose a lesser threat of transmission compared to applicants’ proposed religious exercise in the home. “The Ninth Circuit erroneously rejected these comparators simply because this Court’s previous choices included public buildings instead of personal buildings,” the Court wrote.

Third, the Court found that instead of requiring the State to clarify why it could not safely permit at-home worshipers to collect in bigger amounts while using precautions used in secular activities, the Ninth Circuit erroneously declared that such steps may not”translate easily” to the home. “The State cannot’assume the worst when folks go to worship but suppose the finest when folks go to work,””’ the Court wrote. Although California officials changed the contested policy soon after the application was filed, the Court noted that the prior constraints remain in place before April 15th, also also”officials with a history of’moving the goalposts’ retain authority to reinstate those heightened constraints at any time.”
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