The first significant distinction of the newly constituted Supreme Court concerns the free exercise of religion from government control. The latest evidence is the 5-4 ruling late Friday slapping down another California pandemic diktat on the freedom of worship.
The unsigned majority opinion in Tandon v. Newsom overturned an appellate-court ruling that upheld an order barring meetings of more than three families to worship in a private home.
“California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time,” says the majority opinion. Such disparate treatment between religious and secular activities is barred by the First Amendment, as the Court’s precedents have long held.
In a testy dissent, Justice Elena Kagan argues that the state rule passes muster because it bars both secular and religious meetings of more than three families in a private home. She was joined by liberal Justices Sonia Sotomayor and Stephen Breyer.
But the majority points out that the burden of “strict scrutiny” in such cases requires the state to prove that meetings in private homes are more dangerous for Covid transmission than those in public settings. Is there really a difference between the risks at a hair solon or theater than in a home? The state didn’t try to prove it in the case of the plaintiffs who brought the lawsuit against the pandemic order.