In a 5-4 per curiam opinion issued late Friday, the U.S. Supreme Court held that California’s restrictions on private gatherings during the COVID-19 pandemic are likely unconstitutional and should be enjoined, overturning the Ninth Circuit’s finding to the contrary at the end of last month.

“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise,” the high court’s majority noted in the 6-page opinion.

The case arises from a lawsuit brought by a pastor, a congressional candidate, and a group of business owners arguing that California’s restrictions on private gatherings are unconstitutional on multiple fronts.

The California Department of Public Health’s COVID-19 prevention guidance defines “gatherings” as “social situations that bring together people from different households at the same time in a single space or place.” Under the state’s current pandemic blueprint, indoor and outdoor gatherings are limited to three households. The blueprint prohibits indoor gatherings entirely in counties under its most restrictive tier, and gatherings are “strongly discouraged” in the remaining tiers, although the state will loosen those restrictions starting April 15.

Pastor Jeremy Wong argued that the restrictions violate his right to the free exercise of religion because they prevent him from holding in-home Bible studies, and Republican congressional candidate Ritesh Tandon argued that they prevent him from holding in-person campaign events and fundraisers in violation of his First Amendment rights.

The Ninth Circuit denied the plaintiffs’ request for an injunction of the restrictions at the end of March, devoting most of its analysis to the free exercise claims. The three-judge panel held that there was “no indication that the State is applying the restrictions to in-home private religious gatherings any differently than to in-home private secular gatherings.”

In reversing that ruling, the Supreme Court — citing its decision last year in Roman Catholic Diocese of Brooklyn v. Cuomo — held that California’s restrictions on private gatherings are subject to strict scrutiny, not rational basis review.

“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,” the majority wrote.

And even though the restrictions are set to relax on April 15, an injunction is still warranted because “officials with a track record of ‘moving the goalposts’ retain authority to reinstate those heightened restrictions at any time,” the court held.

Chief Justice John Roberts joined the high court’s three liberal justices in holding that he would deny the application for an injunction. In a dissent, Justice Elena Kagan wrote that California has “adopted a blanket restriction on at-home gatherings of all kinds, religious and secular alike.”

“California need not, as the per curiam insists, treat at-home religious gatherings the same as hardware stores and hair salons — and thus unlike at-home secular gatherings, the obvious comparator here,” Kagan wrote, adding that “the law does not require that the State equally treat apples and watermelons.”

The case is Tandon v. Newsom, case number 20A151, in the Supreme Court of the United States.

Curious about CEB? Please visit our website to learn more about our products, our free webinars and guidebooks, and our public service mission.

© The Regents of the University of California, 2021. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.