The Volokh Conspiracy

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The Ninth Circuit Still Does Not Understand SCOTUS COVID-19 Free Exercise Clause Cases

Judge Bumatay's dissent accurately explains the caselaw. Next stop, SCOTUS.


It is now April 2021. I have lost count of how many times the Ninth Circuit has disregarded the Supreme Court's COVID-19 Free Exercise Clause cases. (Of course, all from the shadow docket). I won't even bother discussing the majority opinion in Tandon v. Newsom. Judge Bumatay's dissent is all you need to read:

The instructions provided by the Court are clear and, by now, redundant. First, regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny. Roman Catholic Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free Exercise Clause merely by permitting some secular businesses to languish in disfavored status alongside religious activity. Id. Second, the fact that a restriction is itself phrased without reference to religion is not dispositive. See Gateway City Church, 2021 WL 753575, at *1. So long as some comparable secular activities are less burdened than religious activity, strict scrutiny applies. Third, businesses are analogous comparators to religious practice in the pandemic context. Roman Catholic Diocese.

The first and third elements are the most important.

Next stop, an application for an injunction at the Supreme Court. This case involves in-home bible study. But it also involves singing. Let's see what Justices Kavanaugh and Barrett do here. In any event, Governor Newsom will likely play a game of whac-a-mole and rescind the regulation to frustrate appellate review.