Caseflicks

Supreme Court of the United States • 2021

Tandon v. Newsom

593 U.S. 61 | 209 L. Ed. 2d 355 | 141 S. Ct. 1294

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Takeaway

In short, this case holds that COVID-19 limits on religious gatherings trigger strict scrutiny when comparable secular activities receive more favorable treatment, and the State must prove that less restrictive precautions cannot protect public health.

Background

California’s COVID-19 rules limited private at-home gatherings, including religious gatherings, to no more than three households. The applicants wished to hold religious meetings in their homes with more households, using precautions comparable to those permitted in secular settings. California, meanwhile, allowed a range of secular activities—including retail shopping, hair and personal-care services, indoor dining, movie theaters, and private suites at sports and concert venues—to involve more than three households.

The federal district court denied preliminary injunctive relief, and the Ninth Circuit declined to enjoin the restriction pending appeal. The Ninth Circuit reasoned that the cited commercial activities were not comparable to at-home religious gatherings and that precautions used in commercial settings might not readily translate to private homes. After the applicants sought emergency relief in the Supreme Court, California altered its policy, but the prior restrictions remained effective until April 15 and officials retained authority to restore them.

Issues

Issue #1

Whether California’s three-household cap on at-home religious gatherings was neutral and generally applicable under the Free Exercise Clause.

Holding

No. California treated comparable secular activities more favorably than at-home religious exercise, so the restriction triggered strict scrutiny.

Reasoning

A law is not neutral and generally applicable when it treats any comparable secular activity more favorably than religious exercise. It does not matter that the State also restricts some secular activities as severely as, or more severely than, religious practice. A single more-favored comparable secular activity is enough to require strict scrutiny.

Comparability turns on the government’s asserted interest—in this case, reducing COVID-19 transmission—not on the reason people assemble. The relevant question is whether the permitted secular activities present similar transmission risks to the proposed religious gatherings when the pertinent conditions and precautions are considered.

California allowed numerous secular activities to bring together more than three households, including retail stores, salons, indoor restaurants, movie theaters, and private event suites. The Ninth Circuit erred by rejecting those comparisons merely because the Court’s earlier COVID-19 Free Exercise cases had involved public buildings rather than private homes. The constitutional inquiry is about comparative risk, not whether the gathering occurs in a public or private building.

Issue #2

Whether California carried its burden under strict scrutiny to justify the restriction on at-home religious exercise.

Holding

No. California did not show that prohibiting religious gatherings of more than three households was narrowly tailored to its public-health interest.

Reasoning

Once strict scrutiny applies, the government bears the burden of proving that its rule serves interests of the highest order through narrowly tailored means. The State cannot meet that burden simply by asserting that particular risk factors are always present in worship or always absent from permitted secular activities.

Narrow tailoring required California to show that less restrictive measures could not adequately reduce viral transmission. Because the State allowed comparable secular activities to proceed with precautions, it had to demonstrate that at-home religious gatherings would remain more dangerous even if they used the same precautions.

The Ninth Circuit improperly speculated that commercial-setting precautions might not readily translate to homes, rather than requiring the State to prove the point. The Court emphasized that California could not assume the worst about people gathering for worship while assuming the best about people gathering for secular activities such as work or commerce.

Issue #3

Whether California’s modification of its COVID-19 policy mooted the applicants’ request for emergency injunctive relief.

Holding

No. The case remained live because the earlier restrictions were still in effect for a period and California officials could reinstate heightened restrictions.

Reasoning

A government’s withdrawal or modification of a challenged COVID-19 restriction during litigation does not automatically moot a case. Relief may remain appropriate when applicants face a continuing threat that officials will reinstate the challenged rule.

Here, the former restrictions remained operative until April 15, and California officials retained authority to restore them at any time. In light of the State’s repeated changes to its pandemic rules, the applicants remained under a sufficient threat of renewed enforcement to keep the controversy live.

Issue #4

Whether the applicants were entitled to an injunction pending appeal.

Holding

Yes. The Court granted injunctive relief pending the Ninth Circuit appeal and any timely certiorari proceedings.

Reasoning

The applicants were likely to succeed on their Free Exercise claim because California’s system contained exceptions and accommodations for comparable secular activities while maintaining a stricter limit on at-home religious gatherings.

The loss of Free Exercise rights, even for a minimal period, constitutes irreparable harm. California also failed to show that public health would be endangered if less restrictive measures were used for religious gatherings.

The Court therefore concluded that the Ninth Circuit had erred in refusing an injunction pending appeal. The order would remain in force through the appellate process, terminating if certiorari were denied or, if granted, when the Supreme Court’s judgment issued.

Dissents

Justice Kagan

Reasoning

Justice Kagan dissented, arguing that joined by Justices Breyer and Sotomayor, Justice Kagan argued that California had treated religious conduct as well as comparable secular conduct. In her view, the obvious comparator for an at-home religious gathering was an at-home secular gathering, not a visit to a hardware store or hair salon. Because California imposed the same three-household limit on all private-home gatherings, religious and secular alike, she concluded that the State complied with the Free Exercise Clause.

Justice Kagan further maintained that even the broader comparisons adopted by the majority failed on the factual record. The district court, relying on undisputed public-health evidence, found that private social gatherings generally involve longer interactions and prolonged conversations, occur in smaller and less ventilated spaces, and make mask wearing, distancing, and enforcement more difficult than commercial activities. The applicants did not dispute those findings, and the Ninth Circuit relied on them in concluding that the commercial activities posed lower transmission risks.

In Justice Kagan’s view, the majority disregarded both the proper comparator and the lower courts’ factual findings about relative risk. By requiring California to relax its limits on at-home gatherings, she believed the Court improperly treated materially different situations as equivalent and displaced the State’s expert public-health judgments during an emergency.