Tandon v Newsom: Question Presented to the Supreme Court

"QUESTION PRESENTED
In ordinary times, Pastor Jeremy Wong and Karen Busch regularly held Bible studies, prayer meetings, and worship services at their homes—as had millions of other Christians in California who sincerely believe assembling for small-group,“house church” fellowship is just as indispensable to their faith as attending Mass is for a Catholic. Yet for over a year now, California has completely prohibited or
substantially restricted those “gatherings” and many others. Indoor gatherings are completely prohibited in Tier 1 counties and limited to no more than three households in Tiers 2, 3, and 4, while outdoor gatherings are limited to no more than three households in all tiers. By contrast, the State allows countless other activities to take place outdoors without any numerical limitations, from weddings and funerals to secular cultural events and political rallies. It also permits more than three households to congregate inside buses, trains, universities, airports, barber shops, government offices, movie studios, tattoo parlors, salons, and other commercial venues. Santa Clara County, where Wong and Busch live, is currently in Tier 3 and thus even restaurants and movie theatres can operate indoors at 50% capacity. 

The question presented is: 

Whether California’s restrictions on “gatherings” trigger and fail strict scrutiny under the Free Exercise Clause to the extent that they prohibit (or severely restrict) at-home religious gatherings— notwithstanding this Court’s clear instructions that California “must place religious activities on par with the most favored class of comparable secular activities.” App. 36 (Bumatay, J., dissenting)."

Remember, under Smith and Lukumi, a law that is neutral and generally applicable does not trigger free exercise protection. But if a law is not neutral or not generally applicable, the Free Exercise Clause requires that a burdening religious exercise must strict scrutiny. Here is how the Tandon Court applied the Free Exercise Clause:

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.

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. Comparability is concerned with the risks various activities pose, not the reasons why people gather.

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. 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.