SCOTUS Rebukes Ninth Circuit For The Fifth Time, Sides With Religious Freedom Versus California

by R. Scott Clark on April 10, 2021

…The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. This Court’s decisions have made the following points clear.
First, government regulations are not neutral and gener- ally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any compa- rable secular activity more favorably than religious exer- cise. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4). It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less fa- vorably than the religious exercise at issue. Id., at ___–___ (KAVANAUGH, J., concurring) (slip op., at 2–3).

Second, whether two activities are comparable for pur- poses of the Free Exercise Clause must be judged against the asserted government interest that justifies the regula- tion at issue. Id., at ___ (per curiam) (slip op., at 3) (describ- ing secular activities treated more favorably than religious worship that either “have contributed to the spread of COVID–19” or “could” have presented similar risks). Com- parability is concerned with the risks various activities pose, not the reasons why people gather. Id., at ___ (GORSUCH, J., concurring) (slip op., at 2).

Third, the government has the burden to establish that the challenged law satisfies strict scrutiny. To do so in this context, it must do more than assert that certain risk fac- tors “are always present in worship, or always absent from the other secular activities” the government may allow. South Bay United Pentecostal Church v. Newsom, 592 U. S. ___, ___ (2021) (statement of GORSUCH, J.) (slip op., at 2); id., at ___ (BARRETT, J., concurring) (slip op., at 1). Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for reli- gious exercise too. Roman Catholic Diocese, 592 U. S., at ___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (state- ment of GORSUCH, J.) (slip op., at 3).

…These principles dictated the outcome in this case, as they did in Gateway City Church v. Newsom, 592 U. S. ___ (2021). First, California treats some comparable secular ac- tivities more favorably than at-home religious exercise, per- mitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and con- certs, and indoor restaurants to bring together more than three households at a time. App. to Emergency Application for Writ of Injunction 183–189. Second, the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than applicants’ proposed religious exercise at home. The Ninth Circuit erroneously rejected these com- parators simply because this Court’s previous decisions in- volved public buildings as opposed to private buildings. Tandon v. Newsom, ___ F. 3d ___, ___, ___–___, 2021 WL 1185157, *3, *5–*6 (CA9 2021). Third, instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precau- tions used in secular activities, the Ninth Circuit errone- ously declared that such measures might not “translate readily” to the home. Id., at *8. The State cannot “assume the worst when people go to worship but assume the best when people go to work.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). And fourth, although Califor- nia officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of “moving the goalposts” retain authority to reinstate those heightened restrictions at any time. South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 6).

…This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID re- strictions on religious exercise. See Harvest Rock Church v. Newsom, 592 U. S. ___ (2020); South Bay, 592 U. S. ___; Gish v. Newsom, 592 U. S. ___ (2021); Gateway City, 592 U. S. ___. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad ex- ceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And his- torically, strict scrutiny requires the State to further “inter- ests of the highest order” by means “narrowly tailored in pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quota- tion marks omitted). That standard “is not watered down”; it “really means what it says.” Ibid. (quotation altered). Read more»

Per Curiam in RITESH TANDON, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL. (April 9, 2021).

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