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Building on its pandemic-era Free Exercise Clause decisions, SCOTUS rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious activities for the fifth time on Friday (4/9/21). In a 5-4 vote in Tandon, et al. v. Newsom, et al., the majority granted two California pastors’ application for emergency injunctive relief relating to the state’s COVID restrictions on private gatherings, which limit at-home religious gatherings to members of three households or less. The pastors argue that the restrictions preventing them from holding in-home Bible studies and communal worship with more than three households violate the Free Exercise Clause of the First Amendment.
The Ninth Circuit denied the pastors’ motion for emergency injunctive relief – because at-home secular gatherings were treated the same, the restrictions were neutral and generally applicable and triggered only rational basis review. Therefore, the pastors could not establish the they were likely to succeed on the merits. Last week’s 5-4 decision reversing the Ninth Circuit reiterated and applied the following points enunciated in the Court’s recent decisions addressing free exercise challenges to COVID-19 restrictions:
In this case, the Court found that California treated “some comparable secular activities” – such as hair salons, movie theaters, and indoor restaurants, more favorably than at-home religious exercise. Second, it observed that the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than the in-home bible study and communal worship at issue, and erroneously did not require the state to explain why it could not allow for larger gatherings of at-home religious exercise while using precautions required for secular activities. Finally, even though the private gathering restrictions had been changed after the application was filed, the restrictions remained in place until April 15th and were subject to being reinstated.
In sum, the majority determined the Applicants were likely to succeed on the merits because (i) they were irreparably harmed by the loss of free exercise rights (even for a minimal period of time); and (ii) California did not show that “public health would be imperiled” by employing less restrictive measures. Therefore, emergency injunctive relief was warranted.
For more information about this topic, please contact Caitlin Tubbesing at [email protected].