Supreme Court Blocks California's COVID-19 Restrictions on Private Prayer Groups

The majority reminds the 9th Circuit that the First Amendment puts limits on COVID-19 policies.


The U.S. Supreme Court has blocked enforcement of California's pandemic-inspired restrictions on at-home religious gatherings, saying the plaintiffs are likely to prevail in their claim that the state's rules violate the First Amendment. The Court previously had issued emergency injunctions against California's limits on gatherings in houses of worship, and Friday's decision confirms that the same principles apply to services in people's homes.

The main rule at issue in Tandon v. Newsom limits private Bible study and prayer meetings, whether inside or outside, to people from no more than three households. As the petitioners note, that limit "does not permit an individual to gather with others in her own backyard to study the Bible, pray, or worship with members of more than two other households, all of which are common (and deeply important) practices of millions of contemporary Christians in the United States." Californians "can sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus, but they cannot host three people from different households for a Bible study indoors or in their backyards."

In February, a federal judge rejected the plaintiffs' request for an injunction against those restrictions, viewing them as a valid exercise of Gov. Gavin Newsom's public health powers. The U.S. Court of Appeals for the 9th Circuit last month refused to issue an emergency injunction pending appeal.

"The Ninth Circuit's failure to grant an injunction pending appeal was erroneous," the Supreme Court says in a per curiam opinion supported by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. The Court cites four principles that should have been "clear" to the 9th Circuit from prior cases involving COVID-19 restrictions and religious freedom:

1. "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….It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue."

2. "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 is concerned with the risks various activities pose, not the reasons why people gather."

3. "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 factors 'are always present in worship, or always absent from the other secular activities' the government may allow….Instead, narrow tailoring requires the government to show that measures less restrictive of the First Amendment activity [such as masks, physical distancing, or less onerous size limits] could not address its interest in reducing the spread of COVID."

4. "Even if the government withdraws or modifies a COVID restriction in the course of litigation [as California did in this case], that does not necessarily moot the case. And so long as a case is not moot, litigants otherwise entitled to emergency injunctive relief remain entitled to such relief where the applicants 'remain under a constant threat' that government officials will use their power to reinstate the challenged restrictions."

The five justices in the majority express some annoyance that the 9th Circuit has failed to apply these principles. "This is the fifth time the Court has summarily rejected the Ninth Circuit's analysis of California's COVID restrictions on religious exercise," they note.

Chief Justice John Roberts thought an emergency injunction was not appropriate, although he did not explain why. In a dissent joined by  Justices Stephen Breyer and Sonia Sotomayor, Justice Elena Kagan argues that California's rule is neutral and generally applicable, meaning it does not trigger strict scrutiny, because it applies to all private gatherings.

"If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment," Kagan writes. "And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike."

Kagan does not think it is appropriate to consider how the state treats settings such as stores and hair salons. And even if that comparison were relevant, she says, there are sound reasons to believe gatherings in homes pose greater risks of virus transmission than gatherings in such businesses: Homes are apt to be smaller and not as well-ventilated, private gatherings tend to last longer, and people in private settings may be less likely to wear masks and practice physical distancing.

"In ordering California to weaken its restrictions on at-home gatherings, the majority yet again 'insists on treating unlike cases, not like ones, equivalently,'" Kagan says. "And it once more commands California 'to ignore its experts' scientific findings,' thus impairing 'the State's effort to address a public health emergency.'"

The Supreme Court first enjoined COVID-19 restrictions on religious activity last November, after the Roman Catholic Diocese of Brooklyn and Agudath Israel of America challenged New York's limits on houses of worship. The following month, the Court vacated a district court decision upholding Colorado's occupancy limits on religious services. In early February, the Court issued emergency injunctions against California's restrictions on religious services in South Bay United Pentecostal Church v. Newsom and Harvest Rock Church v. Newsom. Later that month, it enjoined Santa Clara County's ban on indoor religious services in Gateway City Church v. Newsom and vacated a district court decision upholding a similar statewide policy in Gish v. Newsom.

Breyer, Kagan, and Sotomayor dissented in all of those cases, arguing that the challenged regulations did not implicate the First Amendment because they did not actually treat religious conduct differently from secular conduct that was similar in all relevant respects. As Kagan put it on Friday, "the law does not require that the State equally treat apples and watermelons."

The dissenters obviously disagree with their colleagues about what counts as an apple or a watermelon. But more fundamentally, they always seem inclined to accept the public health judgments embodied in governors' COVID-19 edicts, even when those judgments seem scientifically dubious, even when they change in the midst of litigation, and even when they result in policies that privilege politically influential industries (such as gambling in Nevada and entertainment in California) or explicitly treat religious gatherings as a disfavored category (as New York's rules for "houses of worship" did).

It is reasonable to argue, based on the Court's pre-pandemic precedents, that some COVID-19 regulations are constitutional even if they happen to impinge on religious activity. But at this point it is not clear that Kagan et al. can imagine a disease control policy that would violate the Free Exercise Clause, provided it was presented as necessary for the protection of public health, as such policies always are.

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  1. This shows how disingenuous the left is. Kagan argues that it didn’t discriminate differently on secular and religious issues. But it certainly did since secular “peaceful” protests were allowed to happen at will. So 1A free speech for the left, none for the right. CA dems are ludicrous hypocrites.

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  2. I am amazed at the restrictions on fundamental, core freedoms that have been blithely imposed on US citizens in the name of “public health.” I know COVID is dangerous, and I’ve known people who have died from it, one an immediate family member. But to just let misguided and opportunistic politicians like Newsom, Cuomo, and Whitmer dispense with such freedoms for often [at best] specious reasons because they just can is nothing less than astounding.

    1. I’m also amazed. How have people accepted this so readily? And with so little evidence that it actually does any good?
      I can’t think of any situation where it would be tolerable to have the government tell people who they can and cannot have in their own homes. There has to be a line that cannot be crossed, no matter what the emergency.

      1. I agree. Why they even bothered taking this to court. What is gonna happen if they just have the prayer meetings…are they going to send in swat? Go for it…a few videos of little old church ladies being harangued by guys with rifles and Newsom being recalled would be a sure thing.

        1. a few videos of little old church ladies being harangued by guys with rifles and Newsom being recalled would be a sure thing.

          Nah, California is a warmer, larger-scale version of North Korea now.

        2. If the little old church ladies in that scenario aren’t sufficiently “melanated”, the MSM will see to it that those videos either aren’t seen or are believed to be some kind of “foreign disinformation” campaign.

          Not to mention that in the MSM narrative, “church-going”=GOP=NRA=”Militia Movement”=Nazi/Trumpist/Q-Anon. If the videos got shown, they’d be accompanied by a narration of Don Lemon explaining why the use of riot helmets, plate carrier vests, and AR-15s (which are dandy if the cops are holding them) was at least warranted if not dangerously insufficient as tools to disband a bible study group meeting in a backyard.

          The left-authoritarians and “wokesters” have co-opted and mutated the word “liberal” to the point that in the U.S. it now essentially means “statist”, and libertarians who embrace beliefs that would have been definitionally “liberal” from the enlightenment through sometime in the 1980s or 1990s are seen as somewhere past actual Fascists on the scale of people who deserve to be demonized. What’s really scaring me is that “leaders” like AOC are starting to seem to be willing to take their talking points directly from Orwell with statements like the calls for the establishment of a Federal agency with the exact stated mission of INGSOC’s “Ministry of Truth”

  3. Kagan’s dissent depends on supposition about disease transmission, not evidence. That’s an analysis that would maybe be okay under a rational basis standard. It’s nowhere near good enough for a strict scrutiny level of review. She should know better.

  4. WTF is wrong with the 9th circuit?

    1. They had that one guy who seemed to get it. Is he still around?

    2. It was almost upheld. The real question is what is wrong with the Supreme Court that is was so close?

      1. Thank God POTUS Trump managed to get three justices onto the SCoTUS.

        1. One of the only funny lines from Fiddler on the Roof.

          The faithful are gathered around the Rabbi.

          One of them asks:

          “Rebbe is there a blessing for the Tzar?”

          The rebbe thinks and says.


          “May god bless and keep the Tzar…..Far away from us”

  5. Shocking that this is a 5-4 decision, and that shithead Roberts was on the wrong side. Even as an agnostic/atheist, I have to acknowledge that the Constitution is not neutral on the subject of religion, it’s right there in the First Amendment. You can’t simply say that as long as it doesn’t impinge on churches any more than it impinges on bowling alleys, it’s fine – the First Amendment doesn’t say a goddamn word about bowling alleys.

    1. I think it should be even broader. If it’s not OK to impose something on a church or religious activity, then it’s not OK to impose it on bowling alleys. Who is to say that bowling is not a religion? The first amendment ought to be interpreted as saying that any law or rule that interferes with anyone’s right to freely practice their religion should not apply to anyone. It’s a restriction on what kind of laws can be made (Congress shall make no law and all that), not a special privilege for religion.

      1. Which I expect is part of the reason the 4 in the minority voted the way they did. If the State does not have authority to impose on a religious gathering then it makes it hard to argue the State has any just authority in that area at all. Kagan is certainly one who will defend the State’s claim to most authority.

  6. Upon hearing the Supreme Court’s decision, Gavin Newsom was shocked to find out that he was not God.

    1. Phucking Phil Murphy needs to learn the same lesson.

      1. Speaking of Phil, I went for my first Pfizer shot yesterday at one of the megasites (none of the drug stores near me have it). You’ll be shocked to know that it wasn’t a smooth process.

        Maybe if you didn’t have local cops, FEMA, NJ Guard, and who knows what else tripping all over themselves, things would go a little quicker.

        1. The pharmacy is not all that smooth either. The pharmacist who can fill the dose and give it is usually already very busy filling regular prescriptions.

          There is a lot of red tape for them and you.

          They also have limited supply so not easy to get an appointment.

          Still things are getting better.

        2. I did feel yucky the next day after #2 so I would plan for that. A lot of people I know have had that. It cleared right up by the following day.

  7. Gavin Newsom hardest hit.

    Hopefully with a shovel, or some other large earthworking tool.

  8. We couldn’t just have a blanket ruling that you can’t tell me who can be at my house?

    I’m not sure I buy the argument that they can’t regulate home activity differently that retail activity.

    Would be better to say you can’t regulate home activity.

  9. As Kagan put it on Friday, “the law does not require that the State equally treat apples and watermelons.”

    So Kagan chooses to break out the racist dog whistle, eh?

  10. Liberals who read the Washington Post outraged. See the comments here.

    They read this decision about as well as they read the new Georgia voting laws.

  11. The state can’t see prayer groups inside homes, so my guess is that most prayer groups just kept on going. Heck, my Mom has attended some off and on for the past year, in full violation of the Emperor’s rules.

    Her hairdresser, however, still requires a secret code knock to get into their speakeasies, because hairdressers are illegal in Kommiefornia.

    1. A lot of hairdressers are likely cutting hair from their homes, not hard to set up, or they are doing house calls. They have been doing that for years.

      They never shut those down where I live. The barber shop did require an appointment.

  12. This is one of those cases where people should simply ignore the government.

  13. At what point does the evil party run out of masks to throw off?

    ”Politicians or their representatives would have to sign under penalty of perjury that they won’t share the names publicly and will only use them to determine whether signers understood the petition and want to remove their signatures”

  14. It’s disturbing the defendant in the titles is “Newsom” and not “The State of California”. I guess Gavin really is king now.

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