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Tandon v. Newsom

Supreme Court of the United States · 2021 · Constitutional Law

Constitutional LawFree Exercise ClauseCOVID-19 restrictionsEmergency injunctive reliefFree Exercise Clausestrict scrutinyneutral and generally applicablecomparable secular activity

Facts

California restricted at-home religious exercise by limiting gatherings to no more than three households. At the same time, the State permitted some secular activities, including 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. During the litigation, California changed the challenged policy, but the prior restrictions remained in place until April 15 and officials retained authority to reinstate them. Applicants sought to gather for at-home religious exercise using precautions similar to those used in permitted secular activities.

Issue

Whether California's COVID-19 restrictions on at-home religious gatherings likely violated the Free Exercise Clause by treating comparable secular activities more favorably than religious exercise, thereby entitling applicants to an injunction pending appeal. Also, whether the State's policy changes during litigation mooted the request for emergency relief.

Rule

Government regulations are not neutral and generally applicable, and thus trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. Comparability is judged against the government's asserted interest and turns on the risks posed by the activities, not the reasons people gather. The government bears the burden under strict scrutiny to show that less restrictive measures would not suffice, and if it permits secular activities with precautions, it must show that the religious activity is more dangerous even with the same precautions. Voluntary withdrawal or modification of COVID restrictions during litigation does not necessarily moot a case where applicants remain under a constant threat of reinstatement.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Oregon adopts a public-health order limiting in-home Bible studies to members of no more than two households. The same order allows tattoo studios, bookstores, and indoor cafes in Portland to serve customers from many households at once so long as masking and spacing rules are followed.

If the state argues that the order is generally applicable because it also restricts some secular house parties to two households, which is the strongest response under the governing rule?

Explanation. The rule is that a regulation is not neutral and generally applicable whenever it treats any comparable secular activity more favorably than religious exercise. It is not a sufficient answer that some other secular activities are treated as poorly as, or worse than, the religious activity. Because the order permits some comparable secular activities to bring together more households, strict scrutiny is triggered.