The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Yesterday, I blogged about the 9th Circuit's decision in Tandon v. Newsom. This decision upheld California's complete prohibition of bible worship in private homes. I'll admit, the panel's decision irked me. Now, I often read a judicial decision that I disagree with, but that does not make me angry. This decision made me angry. Why? Because it will waste everyone's time. This decision would require the worshipers' counsel to scramble an emergency application to the Supreme Court. And the California Attorney General will have to reply. The Justices will have to struggle over yet another COVID case. And one month later, at least five Justices will enjoin the policy. Or California will withdraw it at the last moment, in a game of whac-a-mole. By now, the process is old habit.
Since Justice Barrett's confirmation, four emergency application has gone against the government. At this point, the 9th Circuit should be able to discern the Court's approach. Instead, the Ninth Circuit acted as if the Chief's South Bay I decision was still the controlling precedent, and used the incorrect comparator. For these reasons, I did not find it a good use of my time to even describe the decision.
This Court has issued four orders in just the past five months unequivocally holding that governments may not restrict the free exercise of religion—even in the name of fighting a pandemic—if comparable nonreligious activities are not subject to the same restrictions. Yet California—assisted by the Ninth Circuit, which has "disregard[ed] the lessons from [this] Court" and "turned a blind eye to discrimination against religious practice"—continues its rearguard action against the free (and safe) practice of religious faith. App. 32 (Bumatay, J., dissenting). Because of the State's recalcitrance and the Ninth Circuit's refusal to follow this Court's "clear and, by now, redundant" precedents, this Court's intervention is, unfortunately, once again necessary. App. 36 (Bumatay, J. dissenting). . . .
Under these rules, Pastor Wong and Karen Busch 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. The State thus treats religious exercise far more harshly than secular activities. Notwithstanding the State's clear discrimination against religious exercise, the Ninth Circuit applied rational basis to the Gatherings Guidance and denied Applicants' request for an injunction pending appeal. App. 27. The Court reached that head-scratching result based on its conclusion that "in-home secular and religious gatherings are treated the same." App. 27. But the State's decision also to disfavor some nonreligious activity—such as in-home birthday parties or Super Bowl gatherings—does not save the State's Gatherings Guidance from strict scrutiny, as this Court has explained, repeatedly, in Diocese of Brooklyn, South Bay II, Harvest Rock, and Gateway City Church. Instead, "regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny" App. 36 (Bumatay, J., dissenting) (citing Diocese of Brooklyn, 141 S. Ct. at 66–67). And none of those precedents suggests that the Free Exercise Clause applies only to formally established "houses of worship," or that businesses and government services are not proper comparators to private homes with respect to the risk of infection, as the panel majority concluded. On the contrary, this "Court's prior decisions 'clearly dictated' enjoining the restrictions," but the Ninth Circuit "again fail[ed] to apply [those] precedents"—"[a]t this point, a tale as old as time." App. 36 (Bumatay, J., dissenting).
In Gateway City Church v. Newsom, the Court said the outcome was "clearly dictated" by South Bay II. I expect a similar reversal.
Still, I think this case is both easy and hard. If people from different households are allowed to assemble to watch a movie in a theater, they should be allowed to pray together in a single house. This policy reflects the state's utter unconcern for the Free Exercise of religion. No single faith is targeted. Rather, the state ranks religion at the bottom of its priority list, along with other insignificant commercial enterprises. Movies are important. Bible worship is not. The tougher part is singing. In South Bay II, Justice Barrett drew along Justice Kavanaugh to place the burden on the challengers to demonstrate that the government was acting unreasonably. I much preferred Justice Alito's framework, which put the burden on the state to support their policy. Generally, with the violation of an enumerated right, the government bears the burden, and not the challenger. I'm still flummoxed that ACB made this opinion her first writing as a Supreme Court justice. Perhaps now we will have more clarity on the singing issue.
I am finalizing my article on the Free Exercise Clause and the pandemic. It should be published in the Harvard Journal of Law & Public Policy in the next two months or so. I don't know if I will have the time to incorporate yet another COVID case.
Update: Two hours after the plaintiffs filed their application, California modified its policy. This never-ending game of whac-a-mole-is a waste of time, and exhausting.