By Lisa Soronen
In Tandon v. Newsom the U.S. Supreme Court ruled 5-4 that the 9th Circuit should have preliminarily struck down California’s and Santa Clara County’s COVID-19 rule permitting only three families to gather in homes at a time.
The Supreme Court reasoned that this rule likely violates the First Amendment because at-home religious exercise is treated less favorably than comparable secular activities. The State and Local Legal Center did not participate in the case.
In an unauthored decision, the Supreme Court faulted the 9th Circuit for not concluding that “California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, 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.”
Dissenting Justices Elena Kagan joined by Stephen Breyer and Sonia Sotomayor agreed with the 9th Circuit that the “obvious comparator” in this case is at-home secular gatherings; they are treated the same as at-home religious gatherings.
The dissent also pointed out that the 9th Circuit noted three reasons frequenting stores and salons poses a lower risk of transmission than in home gatherings. These reasons include that people are more likely to engage in prolonged conversations at home, private homes are usually smaller and less ventilated than commercial establishments, and it is harder to enforce social distancing and mask-wearing at home. According to the dissent, “[n]o doubt this evidence is inconvenient for the [court’s] preferred result. But the court has no warrant to ignore the record in a case that . . . turns on risk assessments.”
Interestingly, Chief Justice John Roberts would not have overturned the 9th Circuit decision to allow the limit on in-home gatherings. But he also didn’t join the dissenting opinion or otherwise explain his reasoning.
Since nearly the beginning of the pandemic the Supreme Court has struggled with what it should compare religious exercise (in its various form) to when determining whether a COVID-19 restriction unconstitutionally discriminates against religion. It has never decided any of these cases on the merits; it has merely responded to lower court ruling challenged in emergency motions.
At least five justices appear to think a majority of the court has been clear enough. According to the court: “This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny.”
Lisa Soronen is executive director of the State and Local Legal Center and is a regular contributor to the NCSL Blog on judicial issues.