On Friday, April 9, 2021, the United States Supreme Court voted 5-4 to grant an application for injunctive relief in Ritesh Tandon, et al v. Gavin Newson, Governor of California, et al. The lawsuit concerns California’s restrictions on at-home religious gatherings during the COVID-19 pandemic. The Ninth Circuit Court of Appeals previously denied the request for an injunction. This marks the fifth time that the Supreme Court has rejected the Ninth Circuit’s analysis of California’s COVID-19 restrictions on religious exercise.
At issue in the lawsuit is California’s Blueprint for a Safer Economy, which outlines California’s criteria for loosening and tightening restrictions on activities related to the level of spread of COVID-19. The multi-tier system is on a per-county basis and completely prohibits indoor gatherings in Tier 1, limits gatherings to no more than three households in Tiers 2, 3, and 4, and limits outdoor gatherings to no more than three households in all tiers. The emergency application for writ of injunction requested the Supreme Court to decide “[w]hether California’s restrictions on ‘gatherings’ trigger and fail strict scrutiny under the Free Exercise Clause to the extent that they prohibit (or severely restrict) at-home religious gatherings.”
The majority opinion reiterates five points previously made clear: (1) “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;” (2) “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;” (3) “the government has the burden to establish that the challenged law satisfies strict scrutiny;” (4) “even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case;” and (5) “so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants ‘remain under a constant threat’ that government officials will use their power to reinstate the challenged restrictions.”
In its analysis of the above points, the majority opinion found that California treats some secular activities more favorably than at-home religious exercise. For example, hair salons, retail stores, and personal care services, among others, permit more than three households to come together at indoor settings. Further, the majority opinion stated that the Ninth Circuit erroneously rejected these comparators based on a distinction between private buildings and public buildings, rather than determining whether the comparator activities pose a lesser risk of COVID-19 transmission than the proposed at-home religious exercise. The majority opinion also found fault in the Ninth Circuit’s failure to require California to explain why it could not safely permit an increase in at-home religious gatherings. Finally, the majority opinion noted that, although California officials changed the challenged policy shortly after the application for injunctive relief was filed, the previous restrictions remain in place until April 15 and that the heightened restrictions could be reinstated at any time.
The dissenting opinion found that California complied with the First Amendment by enacting a blanket restriction on all at-home gatherings, religious and secular alike. The dissenting opinion also stated that the majority opinion’s analysis of the case defies the factual record presented to the Supreme Court. Specifically, the factual record showed three reasons why “activities like frequenting stores or salons ‘pose a lesser risk of transmission’ than applicants’ at-home religious activities.” The dissenting opinion concludes by stating that California’s attempts to address a public health emergency are impaired by the majority’s “command. . . ‘to ignore its experts’ scientific findings.'”
The five vote majority opinion is unsigned, but states that Chief Justice Roberts would deny the application. Justice Kagan penned the dissenting opinion, and was joined in that dissent by Justice Breyer and Justice Sotomayor.
By 5-4 Vote, Supreme Court Lifts Restrictions on Prayer Meetings in Homes, The New York Times (April 10. 2021)