April 12, 2021

Supreme Court Decides Tandon v. Newsom

On April 9, 2021, the Supreme Court held in Tandon v. Newsom that California’s limitations on religious gatherings in homes likely violate the Free Exercise Clause of the First Amendment. The Court therefore enjoined enforcement of the limitations pending appeal to the Ninth Circuit.

In response to the COVID-19 pandemic, the State of California and many of its counties imposed restrictions on indoor gatherings, with the restrictions differing based on the severity of risk in a particular county. A group of plaintiffs challenged restrictions on private gatherings insofar as they banned indoor religious gatherings and limited outdoor religious gatherings at their homes to three households. They moved for a preliminary injunction to prohibit enforcement of the restrictions. The district court denied the motion. The plaintiffs appealed to the Ninth Circuit and moved for an injunction pending appeal. The Ninth Circuit denied the motion.

The Supreme Court granted the application for a preliminary injunction pending the Ninth Circuit’s disposition of the appeal on the merits. The Court made four points.

First, the Court stressed that 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” (original emphasis). That a government treats some comparable secular activities “as poorly or even less favorably” than the religious activity at issue does not save the regulation under the Free Exercise Clause.

Second, the Court noted that “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.” Comparability must be assessed by the risks that various activities pose, rather than on the reasons why people gather.

Third, the government has the burden to establish that its restrictions on gatherings satisfy strict scrutiny. Narrow tailoring, a necessary predicate for strict scrutiny, requires that the government “do more than assert that certain risk factors ‘are always present in worship, or always absent from . . . secular activities’ the government may allow.” Instead, the government must show that, where it permits other activities to proceed with precautions, the “religious exercise at issue is more dangerous than those activities even when the same precautions are applied.”

Fourth, the Court concluded that even if the government withdraws or modifies a restriction during the course of litigation, it does not moot the case if the plaintiffs remain under a constant threat the government will reinstate the restriction.

The Court concluded that the petitioners were likely to succeed on their challenge on all four points. First, the Court stated, California treats some comparable secular activities more favorably than at-home religious exercise, specifically by permitting such things as hair salons, retail stores, and movie theaters to bring together more than three households. Second, the Court observed that the Ninth Circuit did not conclude that those activities pose a lower risk of COVID transmission than the plaintiffs’ proposed in-home religious gatherings. Third, instead of putting the burden on the State to explain why it could not safely permit at-home worshippers to gather in larger numbers while using precautions required for secular activities, the Ninth Circuit declared that those precautions might not translate to the home setting. Fourth, even though California changed its challenged policy shortly after the petitioners filed their motion for a stay pending appeal, the previous restrictions remain in place until April 15 and the State retained the power to reinstate those restrictions at any time.

The Court issued a per curiam opinion granting the application to enjoin enforcement of the regulations pending appeal. Chief Justice Roberts would have denied the application, as would Justice Kagan, who filed a dissenting opinion joined by Justices Breyer and Sotomayor.

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