The Supreme Court is clearly taking a new, more aggressive approach to protecting religious freedom. Yesterday, the court blocked the execution of a California order banning more than three households from gathering in private for worship. It is the latest in a winning streak for those challenging Covid-related laws against religious gatherings. This case, Tandon c. News on, shows that the new court judge, Amy Coney Barrett, is already having a big impact on the court. The decision was made 5-4; without Coney Barrett, it would have happened the other way around.
This article will explain why yesterday’s ruling will have a big impact on future cases of religious freedom. About two decades ago, the Supreme Court ruled that there was no special religious exemption for “neutral law of general applicability.” Thus, if a law does not deliberately distinguish between religious practices and also applies to religious and non-religious behavior, the Court will confirm it even if it considerably increases religious worship. For example, the court upheld the sanction of a Native American who used peyote, an illegal drug, even though he had done so as part of a religious ceremony. Because the law was neutral (it was not drafted with the intention of complicating religious practices) and generally applicable (it applied to all peyote users, not just religious), the law was upheld. by the Supreme Court.
However, if a law is not neutral or generally applicable, the court will subject that law to “rigorous scrutiny”. This means that the court will strike down the law unless it is narrowly tailored to a compelling government objective. This is a strict standard – the same one applied to racial discrimination laws. Much therefore depends on how the Court applies the terms “neutral” and “generally applicable”.
Yesterday’s case is about what “generally applicable” means. California has not specifically restricted religious worship in the home. Instead, the state has restricted all gatherings, both religious and secular, in houses to three households. The four dissenting judges argued that the law is neutral because it also applies to private religious and secular gatherings.
But the five majority justices disagreed. They noted that more than three households can congregate in barbershops and other secular businesses. Dissent said the majority are comparing “apples and watermelons” because it is more difficult to enforce Covid restrictions in private homes than in public businesses like barber shops. They argued that a law is generally applicable if it deals with private gatherings in the same way.
The majority rejected this argument. They argued that: “When the government allows other activities to be carried out with caution, it must show that the religious exercise in question is more dangerous than those activities even when the same precautions are applied.” So if the government allows it any exceptions to Covid-related restrictions that do not provide the same allowances for worship, the Court will apply strict control.
A rigorous review has been described as “strict in theory but fatal in fact”. Given the court’s new approach, the government will be held to a very high level of restriction of religious services for health reasons if the government allows exceptions, which, of course, it will always do because services essentials must continue and because total foreclosure the cuts are politically and economically unsustainable.
This approach has advantages and disadvantages. There are certainly good reasons to give strong protection to religious services. There are segments of society who are indifferent, if not hostile, to religion and who would not exercise due diligence to restrict worship. On the other hand, the court’s aggressive approach invites judges without public health training to overturn the judgment of much more qualified people about the health risks caused by in-person religious services. And that puts the judges, who are government officials, in the position to decide what types of things are religious services. Yoga workout? Tai Chi lessons?
But for better or for worse, this is the new constitutional reality and it is unlikely to change anytime soon. Should a fourth outbreak of Covid occur, lawmakers and governors will need to think very carefully about how the new restrictions will affect religious services.