Tandon v Newsom Applies Cuomo

I did not assign Tandon v. Newsom (the California case dealing with Covid mandates), but here is how the Per Curiam majority opinion explains the holding of Cuomo:

 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 ___ (state-ment of GORSUCH, J.) (slip op., at 3).