SCOTUS Grants Injunctive Relief In Free Exercise Case Challenging California’s COVID-19 Restrictions


By: Caitlin Tubbesing

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:  

  • Whenever a government regulation treats any comparable secular activity more favorable than religious exercise, it is not neutral and triggers strict scrutiny under the Free Exercise Clause; it does not matter that a state may treat some comparable secular businesses or other activities as poorly or less favorably than the religious exercise at issue.
  • Whether activities are comparable under the Free Exercise Clause must be evaluated against the asserted government interest justifying the challenged regulation – what matters is the risk of the activities.
  • The burden is on the government to establish that the law meets strict scrutiny. This requires more than asserting that “certain risk factors are always present in worship, or always absent from other secular activities;” and instead, show that less restrictive measures could not address its interest in reducing the spread of COVID-19. Likewise, if other secular activities are allowed to take place with precautions, the state must demonstrate that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.
  • Even if the government withdraws or modifies a COVID restriction after litigation begins, the case is not necessarily moot, and as long as the case is not moot and applicants “remain under a constant threat” that government will use its power to reinstate the restrictions, litigants may be entitled to emergency injunctive relief.

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