Supreme Court Grants Injunction on California COVID Restrictions

On Friday, the Supreme Court in Tandon v. Newsom (2021), granted a request for injunctive relief related to California COVID restrictions banning Bible study and prayer meetings in private homes when more than three households are represented. The vote was 5-4, with Chief Justice Roberts and the Court’s liberal wing voting in the minority.

The divisive issue was whether California’s regulation was one of general applicability treating religious conduct as well as the state treats comparable secular conduct. The majority found that the regulation did not treat religious conduct as well as comparable secular conduct. As a result, strict scrutiny (showing that the regulation is narrowly tailored to further a compelling state interest) was triggered.

The majority noted that “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.” The dissent authored by Justice Kagan contended that the majority was not comparing apples to apples inasmuch as a hardware store open to the public is not comparable to at-home gatherings. Moreover, Kagan pointed out that California “adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.” Thus, because a secular dinner party would be limited to three families, Kagan believed that the First Amendment was satisfied.

According to the petition for injunctive relief, the key to unlocking the comparability argument is California’s definition of gatherings which means “social situations that bring together people from different households at the same time in a single space or place.” Under California’s own definition of gatherings, at-home worship and commercial activity at a hardware store are “social situations that bring together people from different households at the same time in a single space or place.” The petitioners also pointed out that under exceptions to the gathering guidance they “could contract out their home to Netflix for the filming of Warrior Nun with dozens of stagehands and actors inside, they could not host a nun and two other people from different households for an ecumenical prayer meeting.”

This last point raised by the petitioners demonstrates why the Court properly granted the injunction. Petitioners have to show a likelihood of success on the merits. California’s exceptions to the gatherings guidance does not treat religious and secular activity equally. As we have seen in other cases, it is the myriad exceptions that government makes to laws that are otherwise generally applicable that gives them legal trouble. Hopefully, governments will eventually learn this lesson as they craft laws dealing with the pandemic.

William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls.
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