Late Friday night, in another case on its so-called "shadow docket", the U.S. Supreme Court in Tandon v. Newsom, (Sup. Ct., April 9, 2021), granted an injunction preventing enforcement during the appeal process of California's COVID-19 order limiting religious gatherings in homes to three households. In a 5-4 decision, the majority in a 4-page per curiam opinion outlined important principles to be applied in deciding free exercise claims, saying in part:
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....
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....
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.
Justice Kagan filed a 2-page dissent, joined by Justices Breyer and Sotomayor. They said in part:
The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike. California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here.
Chief Justice Roberts also dissented, without filing an opinion. Volokh Conspiracy blog has more on the decision.
