On April 9th 2021 in the case of Tandon v. Newsom, the U.S. Supreme Court granted an injunction to Plaintiffs seeking to halt enforcement of California’s ban on more than three households gathering in a private home for religious activities. California also applied the same ban to secular gatherings in private homes. But there was no such ban for hair salons, retail stores, indoor restaurants, private suites at sporting events and concerts, and movie theaters.
In an unsigned per curiam opinion, the Court reviewed several principles that apply in First Amendment cases involving the free exercise of religion. First, the Court observed that government regulations are not neutral and generally applicable, and therefore they trigger strict scrutiny whenever they treat any secular activity more favorably than a comparable religious activity. It is no defense for the government to assert that some secular activities are treated the same as, or even less favorably than, comparable religious activities. Finding the right comparator for religious and secular activities is an important part of the analysis.
Second, whether activities are comparable is determined by the asserted governmental interest that justifies the regulation at issue. In the instant case, the asserted governmental interest was in limiting the spread of COVID-19, which all acknowledge is a compelling interest.
Third, the government must prove that its regulation is narrowly tailored to satisfy the compelling governmental interest at hand. So, in the context of COVID, the government must show that there was no less restrictive way to accomplish its objective of restricting the spread of the novel coronavirus than the particular regulation being challenged.
Fourth, even if the government withdraws or modifies its regulation during the course of litigation, the case is not moot and the applicant may still be entitled to injunctive relief. This is because there is always the risk that the government will reinstate the offending regulation. The Court noted wryly that some governmental authorities may have a “track record of moving the goal posts.” After certain regulations are smacked down, they might pop back up like those pesky rodents in the carnival game of whack-a-mole (my analogy, not the Court’s).
Based on the foregoing principles, the Court had no trouble finding that California’s restriction on religious gatherings placed an unfair burden on the free exercise of religion. The government in the case at hand did not show that “public health would be impaired” by the application of less restrictive measures. The Court opined that Plaintiffs were likely to prevail on the merits of the underlying litigation, and that they would suffer irreparable harm if the regulations were allowed to remain in effect for even minimal periods of time pending a final resolution of the case.
Justice Kagan penned a dissent, in which Justices Sotomayor and Breyer joined. She stated that, in her opinion, the Court was comparing apples with watermelons (a slight but welcome seasonal change to the musty menu of “apples and oranges” as the typical fruit in our comparative word salad). She opined that the appropriate comparator to religious activities conducted in private homes was not secular activities conducted in the public sphere, such as in hardware stores or hair salons, but secular activities conducted in private homes.
She noted the differences between the apples and watermelons of private homes and public spaces. Some of these difference are: private homes are not usually as well ventilated as public spaces, gatherings in private homes are more likely to involve extensive social interaction than those in public locations such as retail stores, and enforcement of regulations such as mask wearing and social distancing is more difficult in private homes than in public places. Because the same rules applied to both secular and religious activities in private homes, Justice Kagan found private homes to be the appropriate comparator for a true apples versus apples comparison in the instant case. She would not have granted the injunction.
As an armchair Supreme Court Justice quarterback, what would you have decided?
