Constitutional protections are implicated any time a state treats “any comparable secular activity more favorably than religious exercise,” the majority wrote. “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.”
In this case, the majority said, gatherings of more than three households were banned at prayer meetings in homes even though California permits “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.”
The opinion was unsigned, but the majority was composed of Barrett and Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
Chief Justice John G. Roberts Jr. indicated the court should not have granted the emergency petition challenging the restrictions but did not explain his reasoning. Justice Elena Kagan wrote a biting dissent for the court’s liberals.
The First Amendment requires a state to treat religious conduct as well as it treats comparable secular conduct, Kagan wrote.
California “does exactly that,” she wrote, adding that it adopted a blanket restriction on home gatherings to three households, “religious and secular alike.”
“California need not, as the [majority] insists, treat at-home religious gatherings the same as hardware stores and hair salons — and thus unlike at-home secular gatherings, the obvious comparator here,” Kagan wrote.
“The law does not require that the state equally treat apples and watermelons,” she wrote, joined by Justices Stephen G. Breyer and Sonia Sotomayor.
The challenge was brought by Santa Clara County pastors Jeremy Wong and Karen Busch, who said the restrictions prevented their usual weekly Bible study and prayer sessions. The pair “sincerely believe assembling for small-group, ‘house church’ fellowship is just as indispensable to their faith as attending Mass is for a Catholic,” they said in their petition to the court.
The issue of when state restrictions put in place to curb the pandemic unfairly limit religious activity has sharply divided the court.
Before the death of Justice Ruth Bader Ginsburg, Roberts and liberal justices formed a majority that generally left the issue up to elected officials, saying judges don’t have the expertise or power to overrule decisions made with the public’s health in mind.
But the court’s more conservative members protested, saying that was an abdication of the court’s responsibility. “In certain quarters, religious liberty is fast becoming a disfavored right,” Alito said in a speech to the Federalist Society.
After the death of the liberal Ginsburg and the confirmation of the conservative Barrett to her seat on the court, the dynamic shifted. The new majority struck limitations on religious services in New York put in place by Gov. Andrew M. Cuomo (D), and has continued that pattern since.
Friday’s majority opinion, issued just before midnight, expressed impatience both with the U.S. Court of Appeals for the 9th Circuit, which upheld the household limitation, and with California officials, led by Gov. Gavin Newsom (D).
“This is the fifth time the court has summarily rejected the Ninth Circuit’s analysis of California’s covid restrictions on religious exercise,” the majority opinion stated. The 9th Circuit is often held up as a liberal outlier, although the judges who ruled for California in this case were nominated by Presidents George W. Bush and Donald Trump.
And the majority rejected California’s plea to stay out of the case because the restrictions were constantly changing, based on infection rates, and they are scheduled to expire.
“Although California officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of moving the goal posts retain authority to reinstate those heightened restrictions at any time,” the opinion said.
The challengers “are irreparably harmed by the loss of free exercise rights ‘for even minimal periods of time’; and the state has not shown that ‘public health would be imperiled’ by employing less restrictive measures,” the opinion said, citing the precedents it said were set in the New York case.
The California case is Tandon v. Newsom.