SCOTUS Acts to Protect the Free of Exercise of Religion in the Pandemic and Beyond

The free exercise of religion matters, especially during a pandemic. It’s nice to know that a majority on the U.S. Supreme Court agree.

Late Friday evening, the Court issued a 5-4 opinion in Tandon v. Newsom overturning a ruling from the U.S. Court of Appeals for the 9th Circuit and halting California Governor Gavin Newsom’s COVID restrictions on home gatherings. The governor’s order prohibited gatherings in homes of more than three households. If convicted, violators could face a misdemeanor charge, fines, and even jail time.

Pastor Jeremy Wong was one of the Californians who asked the Supreme Court to take up his case. Wong argued that his in-home corporate Bible studies and prayer meetings weren’t being treated fairly by the state compared to secular activities that pose comparable risks.

In a per curiam opinion—an opinion in which the author is not named—the Supreme Court stated that the 9th Circuit’s failure to halt these unconstitutional restrictions was “erroneous.”

Here are four quick takeaways from the ruling.

1. Religious activities must be treated fairly

The Court held that California’s regulation wasn’t neutral and placed more of a burden on religious activities than it did on similar secular activities. The opinion states this: “[G]overnment regulations are not neutral and generally applicable…whenever they treat any comparable secular activity more favorably than religious exercise.” In other words, the state can treat secular activities worse than the free exercise of religion, but it can’t treat religious activities worse than any comparable secular activity. Thankfully, the Free Exercise Clause is now getting the respect it deserves from the highest Court in the land.

2. The government can compare risks, not reasons, for gatherings

In its ruling, the Supreme Court also clarified how to compare the state’s treatment of religious and secular activities—and, importantly, not just in a pandemic. The ruling notes that “[c]omparability is concerned with the risks various activities pose, not the reasons why people gather.” This means that a religious gathering shouldn’t face greater burdens from the government simply because it’s religious in nature. While the government has the authority to protect health and public safety, it must make those decisions based on the “risks” and not the “reasons” why there’s a particular gathering in the first place.

3. The burden of proof is on the government, not the person exercising religious activity

The SCOTUS opinion also highlights the fact that it’s the government that has to defend its actions, not the individuals who are practicing their faith, or leading in-home prayer meetings or Bible studies, as in this instance. The opinion states that the government is required “to show that measures less restrictive of the First Amendment activity could not address its interest in reducing the spread of COVID. Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied. Otherwise, precautions that suffice for other activities suffice for religious exercise too.”

4. Protecting free exercise rights is paramount

Finally, the Court delivered an important message to the California government: “even if the government withdraws or modifies a COVID restriction in the course of litigation, 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.” In other words, even if the government backtracks on interfering with free exercise rights, it still can be held accountable for violating those rights.

It should be noted that this is the fifth time the Supreme Court has made clear that California’s COVID restrictions violated religious freedom rights. While we hope it’s the last time the Court has to weigh in, we’re thankful the Court strengthened its precedent protecting the free exercise rights of all Americans going forward.

Learn more about how ADF defended religious freedom across the country during the COVID-19 pandemic.

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