Tandon v. Newsom, , was the last major decision of the U.S. Supreme Court addressing religious-liberty challenges to restrictions on public gatherings during the COVID-19 pandemic.Inazu at 308. The decision significantly transformed existing religious-liberty doctrine by adopting the "most favored nation" approach,This term alludes to the concept of a most favored nation in international trade. Professor Douglas Laycock was the first to use the phrase in this way. Lund at 850 n.43 (citing Laycock at 49–50). holding that "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."Inazu at 311.
During the COVID-19 pandemic, the government of California limited all gatherings inside homes to three households, regardless of the purpose of meeting. However, there were no household limits on some secular activities outside homes, including personal care providers. Before the pandemic, plaintiffs Jeremy Wong and Karen Busch held Bible studies in their homes, but they were restricted from continuing by California's limit on in-home gatherings. They sued California officials, alleging that their First Amendment rights to religious activities were being violated.
Before Tandon, the Supreme Court held in Employment Division v. Smith (1990) that laws which are "neutral" and "generally applicable"Lund at 848 (quoting Employment Division v. Smith, 494 U.S. at 878–879). need not satisfy strict scrutiny to be constitutional. The Tandon court held that the exemptions for some businesses outside the home made the regulation not neutral and generally applicable. Finding it likely that California's restriction would not withstand strict scrutiny, the Supreme Court issued an injunction prohibiting California from applying the restriction to in-home religious gatherings pending appeal.
Called the "most important free exercise decision since 1990",Vladeck at 734 (quoting Oleske). the case was seen as a significant narrowing of Smith. Legal scholar Steve Vladeck argued that it was significant the court chose to use the shadow docket to issue this major decision, as opposed to the more time-consuming merits docket.
Factual background
During the COVID-19 pandemic, California responded with various measures designed to limit transmission of the disease. On August 28, 2020, Governor Gavin Newsom published the state's plan for gradual reopening, titled the Blueprint for a Safer Economy, which establishing a four-tiered approach to restrictions, tightening as the spread of COVID increased; the highest tier was labelled "widespread".Wilson at 444–45. These restrictions included a limit of three households at some indoor activities; outdoor activities faced no such restriction.Gitter at 2293. Indoor locations exempt from the three household limit included "public transportation; establishments that provide personal care, like salons; government offices; movie studios; tattoo parlors; and other commercial spaces". However, all gatherings inside the home – religious and secular – were subject to the limit.Lund at 856.
Legal background Public health measures in a pandemic At the beginning of the COVID-19 pandemic, the Supreme Court had last addressed the issue of government power during a pandemic in Jacobson v. Massachusetts (1905).Vladeck at 701. Jacobson was most often taken to mean that the government has broad leeway to restrain individual rights during a pandemic for public safety.Hutler at 58. However, Jacobson predated tiered scrutiny,Hutler at 58–59. under which an infringement of a fundamental right is subject to strict scrutiny, whereas more commonplace restrictions on individual liberty receive only rational basis review,Fallon at 1293. Later on a third tier of scrutiny was added, intermediate scrutiny. Fallon at 1297–98. leaving disagreement about whether Jacobson reflected current law.
Free exercise of religion Before the COVID-19 cases, the primary framework of free-exercise doctrine was set out by a pair of decisions in the 1990s: Employment Division v. Smith (1990) and Church of Lukumi Babalu Aye v. City of Hialeah (1993).Lund at 847–49; Inazu at 313–14; Baldwin at ¶5. Until Smith, the denial of a religious exemption had been subject to strict scrutiny whenever a law substantially burdened free exercise of religion.Lund at 847. Smith made it much harder to seek a religious exemption in federal court by holding that no exemption is required so long as a law is "neutral" and "generally applicable".Lund at 847–48. Lukumi exemplified the flipside – a law that was not neutral toward religion, and therefore was still subject to strict scrutiny. In that case, the court unanimously held that a city ordinance banning animal sacrifice unconstitutionally discriminated against religion because the city made exceptions for many secular purposes, such as killing animals for consumption (food and clothing), sport (hunting and fishing), and euthanasia.
Two strands of pushback to Smith have taken place since the decision. First, critics of Smith have tried to overturn the decision and restore the earlier strict-scrutiny regime.Vladeck at 705–06. Congress codified the pre-Smith standard with the bipartisan Religious Freedom Restoration Act of 1993,Vladeck at 706. which passed in the Senate by a vote of 97–3. However, the Supreme Court partially struck the law down in City of Boerne v. Flores (1997), holding that Congress could not require state and local governments to give religious exemptions under the pre-Smith strict-scrutiny approach.Vladeck at 707.
Second, some have interpreted Smith narrowly by taking even a single secular exemption as making a law not "generally applicable" such that the denial of a religious exemption would be discriminatory.Vladeck at 708–09. One prominent example was Fraternal Order of Police, Newark Lodge No. 12 v. City of Newark (3d Cir. 1999), a decision written by Samuel Alito before he joined the Supreme Court, which held that two Muslim police officers could not be required to shave their beards as part of an officer uniform policy because there was an exception for medical reasons (namely, for pseudofolliculitis barbae). This view, known as the "most favored nation" approach, was ultimately adopted by a majority of the court in Tandon.Lund at 857.
Previous COVID-19 decisions During the COVID-19 pandemic, the Supreme Court of the United States considered a series of shadow docket cases involving Free Exercise Clause challenges to restrictions imposed by state governments on in-person gatherings for religious purposes. The four main previous decisions were: South Bay United Pentecostal Church v. Newsom I (2020) Calvary Chapel Dayton Valley v. Sisolak (2020) Roman Catholic Diocese of Brooklyn v. Cuomo (2020) South Bay United Pentecostal Church v. Newsom II (2021)
Initially, a narrow majority denied these requests, starting with South Bay I in May 2020.Blackman at 637–38. However, after the appointment of Amy Coney Barrett to the court, a majority began granting requested injunctions, starting with Roman Catholic Diocese of Brooklyn v. Cuomo in November 2020.Blackman at 638
Justice Kavanaugh previously urged the court to adopt the most-favored-nation approach (that when any secular activities receive exemptions, religious activities must generally get those same exemptions, unless sufficient justification can be given for withholding it) in a dissent in Calvary Chapel and later a concurrence in Diocese of Brooklyn.Oleske at ¶4.
Lower courts District Court
The case was filed on October 13, 2020, in the United States District Court for the Northern District of California by three groups of business, free speech, and religious freedom plaintiffs.Wilson at 454. The plaintiffs making a religious freedom challenge were Jeremy Wong and Karen Busch. Before the pandemic, they had held Bible studies at their home for eight to twelve people at a time. They claimed that the restriction on in-home gatherings abridged their rights under the Free Exercise Clause and sought to be allowed to hold "Bible studies, theological discussions, collective prayer, and musical prayer at their homes".Blackman at 741 (quoting Tandon v. Newsom, 517 F.Supp.3d 932, 946 (N.D. Cal. 2021)). Judge Lucy H. Koh held a hearing by video conference over Zoom on December 18, 2020, and rejected the requested preliminary injunction on February 5, 2021.Wilson at 455–56.
Court of Appeals On March 4,Wilson at 456 the plaintiffs asked the United States Court of Appeals for the Ninth Circuit for an injunction pending appeal. The motion was heard by a panel of Judges Milan D. Smith, Jr., Bridget S. Bade, and Patrick J. Bumatay.Tandon v. Newsom, 992 F.3d 916 (9th Cir. 2021). The panel denied the injunction by a 2–1 vote on March 30, 2021.Vladeck at 732.
The majority opinion held that the restrictions were neutral and generally applicable compared to secular activities in the home; and said "that appellants were 'making the wrong comparison because the record does not support that private religious gatherings in homes are comparable—in terms of risk to public health or reasonable safety measures to address that risk—to commercial activities, or even to religious activities, in public buildings.Gitter at 2293 (quoting Tandon v. Newsom, 992 F.3d 916, 920 (9th Cir. 2021)). Therefore, the restrictions were subject to rational basis review.Blackman at 741.
The appeals court said:Parmet at 570 (quoting Tandon v. Newsom, 992 F.3d 916, 925 (9th Cir. 2021)).
[T]he district court found that the State reasonably concluded that when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting; that participants in a social gathering are more likely to be involved in prolonged conversations; that private houses are typically smaller and less ventilated than commercial establishments; and that social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.Tandon v. Newsom, 992 F.3d 916, 925 (9th Cir. 2021).
Dissent Judge Bumatay wrote a dissent, in which he stated three ideas.Blackman at 741–42. First, citing Roman Catholic Diocese of Brooklyn v. Cuomo and Justice Kavanaugh's concurrence in Calvary Chapel Dayton Valley v. Sisolak, Bumatay argued that those precedents required using the most-favored nation approach, treating religious exercise at least as favorably as any secular activity to avoid strict scrutiny.Blackman at 742. Second, a regulation that does not mention religion at all is not necessarily neutral and generally applicable. Finally, in the context of the pandemic, businesses were comparable to religious exercise. Taking these principles together, strict scrutiny should apply to the restrictions.
Supreme Court
The plaintiffs sought an injunction from the Supreme Court on April 2; later that day, California stated that, effective April 15, the restrictions on in-home religious activities would be lifted. Elena Kagan, who was assigned to hear emergency appeals from cases in the Ninth Circuit, gave California until April 8 to respond. California filed its response on the last day, and the plaintiffs in turn filed a reply the next day around 3:00p.m. Eastern Daylight Time (noon in California).Blackman at 743.
The court issued its opinion later that day, April 9, shortly before midnight EDT. In a 5–4 per curiam decision on the shadow docket, the Supreme Court disagreed with the Ninth Circuit and granted a preliminary injunction.Blackman at 743–44. The decision of the court was divided into four main points.Blackman at 744.