THE FEDERALIST REPORTS:
On Friday, for the fifth time the U.S. Supreme Court slapped down a Ninth Circuit Court of Appeals decision upholding anti-religious COVID restrictions established by California's embattled Gov. Gavin Newsom.
The court's unsigned order in Tandon v. Newsom represents much more than a victory for the plaintiffs who sought to host Bible studies in their homes on equal footing with analogous commercial activities: It signifies the reemergence of religious liberty as a valued jurisprudential principle to the Supreme Court.
In the Tandon case, Pastor Jeremy Wong and Karen Busch challenged restrictions the California Department of Public Health placed on Bible studies and prayer meetings held at worshipers' homes as part of the Golden State's so-called "Blueprint for a Safer Economy." California's "Blueprint" followed several earlier regulations based on authority purportedly provided to the Department of Public Health by Newsom's proclamation of a state of emergency and later his issuance of a pair of executive orders that directed all Californians to comply with all "State public health directives." Refusal to do so would subject violators to a misdemeanor conviction and a $1,000 fine or six months' imprisonment.
Under the tiered system adopted by California's Department of Public Health, in tier one counties, indoor gatherings were completely prohibited, while indoor gatherings in counties with lower COVID infection rates, falling in tiers two through four of the state's model, were limited to no more than three households. All tiers were limited to no more than three households for outside gatherings.
Conversely, the state placed no limits on outside gatherings for weddings, funerals, protests, or political events. The state also granted indoor commercial activities much greater leeway for the number of patrons allowed inside for businesses from nail salons to tattoo parlors to museums, movie theaters, gyms, and restaurants.
Because these California regulations barred Wong and Busch from continuing to host Bible study and prayer meetings at their homes, as they had done for years, while allowing outside gatherings and analogous indoor events at commercial businesses with substantially more patrons in attendance, they sued the state for violating their First Amendment rights to free exercise of religion....................
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A Big Shift in Court Attitude
It is not the Supreme Court's conclusion that an emergency injunction should issue, however, that proves the most profound in this case, but the four points the abbreviated order declared "clear" from Supreme Court free-exercise jurisprudence.
That jurisprudence has been stilted since the Supreme Court's 1990 decision in Employment Division v. Smith, interpreting the Free Exercise Clause of the Constitution, which provides that: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"
The Supreme Court in Smith, in an opinion authored by Justice Antonin Scalia, held that neutral laws of general applicability do not violate the Free Exercise clause even if such laws burden a person's religious beliefs or practices. Rather, such laws remain constitutional so long as the government holds a rational or legitimate basis for the regulation, which most laws do.
Conversely, as the Supreme Court made clear three years later in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, "a law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny." That scrutiny-called strict scrutiny-requires a law to be "justified by a compelling governmental interest and [it] must be narrowly tailored to advance that interest." Few laws satisfy this most exacting scrutiny.
Four Core Points from SCOTUS
Citing this precedent and the Supreme Court's earlier orders addressing COVID restrictions, the Tandon decision hammered four points. First, "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise." Also, "it is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue," the court added.
"Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue." Here, the court noted, "Comparability is concerned with the risks various activities pose, not the reasons why people gather." "Third, the government has the burden to establish that the challenged law satisfies strict scrutiny," and to do so the government "must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied."
Finally, the Supreme Court noted that "even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case." Rather, so long as the plaintiffs remain under the threat that government officials will reinstate the challenged restrictions, the case remains live and an injunction is appropriate.
