California Covid Ban on Home Worship Enjoined by SCOTUS: Tandon v. Newsom

 Amy Howe of SCOTUSblog reports:

"By vote of 5-4, #SCOTUS blocks California's COVID-related restrictions on in-home prayer meetings and worship. Opinion & Kagan's dissent are here: https://supremecourt.gov/opinions/20pdf  

Here is an important excerpt:

"The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. This Court’s decisions have made the following points clear.
First, 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. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4). 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. Id., at ___–___ (KAVANAUGH, J., concurring) (slip op., at 2–3).

Second, 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. Id., at ___ (per curiam) (slip op., at 3) (describing secular activities treated more favorably than religious worship that either “have contributed to the spread of COVID–19” or “could” have presented similar risks). Comparability is concerned with the risks various activities pose, not the reasons why people gather. Id., at ___ (GORSUCH, J., concurring) (slip op., at 2).

Third, 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. South Bay United Pentecostal Church v. Newsom, 592 U. S. ___, ___ (2021) (statement of GORSUCH, J.) (slip op., at 2); id., at ___ (BARRETT, J., concurring) (slip op., at 1). Instead, narrow tailoring requires the government 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. Roman Catholic Diocese, 592 U. S., at ___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (statement of GORSUCH, J.) (slip op., at 3)."

And from Justice Kagan's dissent:

 "California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike. California need not, as the per curiam 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. As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons....

In ordering California to weaken its restrictions on at-home gatherings, the majority yet again “insists on treating unlike cases, not like ones, equivalently.” South Bay, 592 U. S., at ___ (KAGAN, J., dissenting) (slip op., at 5). And it once more commands California “to ignore its experts’ scientific findings,” thus impairing “the State’s effort to ad-dress a public health emergency.” Ibid. Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision."

Notice that Justice Kagan believes that the free exercise clause treats home prayer meetings no better and no worse than home gatherings for poker games, cocktail parties, and football games. But those secular activities are not the subject of an express amendment protecting poker, cocktail socials, and football-watching parties. This is her view even if other secular gatherings--at factories, Hollywood studios, and big box stores--are treated much better than home worship meetings.

What are your thoughts?