Guest Commentary: Where two or three are gathered: Tandon v. Newsom and California’s ban on in-home religious worship

Nick Reaves and Joe Davis from the Becket Fund for Religious Liberty offer the following commentary on Tandon v. Newsom:

Where two or three are gathered: Tandon v. Newsom and California’s ban on in home religious worship  

In-home worship and Bible study are crucial to the religious exercise of millions of contemporary Christians in the United States, and these “house churches” have their roots in the earliest days of Christianity. See Acts 5:42 (“And every day, in the temple and from house to house, they did not cease teaching and preaching Jesus as the Christ.”). For Jews as well, religious gatherings in the home are sacred. During a Passover seder, for example, Jews gather at a family table to read the Haggadah and share a ritual meal. See Exodus 12. 

Yet, for over a year, California’s COVID restrictions prevented Jews and Christians alike from hosting any in-home religious gatherings if they included individuals from more than three households (including the host). This “gatherings ban” made it unlawful to host even a small Bible study or seder meal. By policing these deeply personal and sacred interactions between individuals in the privacy of their home, California’s gatherings ban struck at the heart of our Constitution’s protections for religious liberty and freedom of assembly. 

In the early days of the pandemic, when all economic and social activities ground to a halt, such restrictions might have been justified for a very brief time. But—as the pandemic rolled into its second year and cases ebbed across California—the State continued to keep religious exercise on the sidelines while an ever-growing list of secular activities were deemed safe and permitted to resume. Homes and backyards were forced to remain religion-free while hair salons, restaurants, retail stores, hotels, laundromats, pet groomers, bowling alleys, and the Hollywood entertainment industry (to give just a partial list) reopened with safety protocols. 

This meant four observant Jews couldn’t meet at one of their homes to celebrate the Passover, but four sports fans could gather in a stadium skybox to eat chicken wings. And a Christian pastor could be fined for hosting an in-home Bible study on Easter morning, but his flock could go bowling together that same day. 

Seeking relief from these targeted restrictions, Pastor Jeremy Wong and Karen Busch challenged the State’s ban on in-home religious gatherings in federal court, in a case called Tandon v. Newsom. Karen and Pastor Wong explained that they would carefully follow the State’s social distancing and masking requirements at their religious gatherings, and simply asked for the same treatment as California’s long list of permitted secular activities. The district court and the Ninth Circuit, however, denied their request for relief. Apparently wearing constitutional blinders, both courts held that the State’s long list of permitted secular activities (from haircuts to bowling) was irrelevant. Instead, because California banned both religious and secular gatherings in the home, the ban was permitted. 

So Karen and Pastor Wong—following a trail blazed by previous challengers to California’s draconian restrictions on religious exercise—sought emergency relief at the Supreme Court, asking for permission to host in-person Bible studies and religious worship on Easter Sunday. A week later, their prayers were answered: the Supreme Court enjoined California’s restrictions on in-home religious gatherings. 

Much of the commentary on this case has focused on the Supreme Court’s repeated intervention to protect religious worship in California; but was the Supreme Court’s intervention here really surprising? Perhaps a better question to ask is why it took five trips to the Supreme Court for California to start treating all religious worship at least as well as it treats secular activities. 

How we got here 

Tandon was far from the first time the Supreme Court had confronted California’s discriminatory treatment of religion during the pandemic. The Court’s first decision addressing any State’s COVID-19 religious worship restrictions came in a May 2020 case (now) called South Bay I, which involved California’s limitation on gatherings at houses of worship to no more than the lower of 25% of the building’s occupancy or 100 people. It was already settled law that when the government fails to treat religious exercise equal to comparable secular conduct, its actions are constitutionally suspect. Yet, while churches, mosques, and synagogues were subject to this stringent occupancy cap, California permitted many secular businesses (like factories, restaurants, hair salons, and cannabis dispensaries) to open without such limitations. Even so, the Court declined to step in, with Chief Justice Roberts—writing alone to provide the only explanation for the Court’s actions—citing the deference due to government officials at the outset of an extraordinary emergency like this one.

South Bay I was then followed by another loss for in-person worship at the Supreme Court in Calvary Chapel Dayton Valley v. Sisolak.

In November 2020, however, the tide turned. On the night before Thanksgiving, the Supreme Court protected the Diocese of Brooklyn and Agudath Israel (a national grassroots Jewish organizations with over 70 affiliated synagogues in New York, represented by our firm, the Becket Fund for Religious Liberty) from targeted caps of 10 or 25 on houses of worship, while imposing no occupancy limits on so-called “essential businesses”—a category including things like bicycle repair shops, accountants, and liquor stores. The Court explained that discriminatory worship bans like this one “strike at the very heart of the First Amendment’s guarantee of religious liberty.” And the Court pointed out a glaring disparity: “hundreds” of shoppers could crowd a big-box store while even the most cavernous cathedral remained limited to a mere handful of worshipers.

In the wake of Diocese of Brooklyn, many state and local governments—correctly reading both the legal tea leaves and the public-health data—began lifting their remaining restrictions on religious worship, recognizing that even in a pandemic religious worship can be conducted safely.

California, however, remained defiant, triggering a remarkable months-long battle with the Supreme Court over the State’s efforts to carve out the nation’s only worship-free zone, even while it elsewhere moved toward reopening secular economic activities as the pandemic waned.

On three separate occasions, in Harvest Rock Church v. Newsom, South Bay II, and Gish v. Newsom, the Supreme Court was required to step in, ensuring that California’s COVID restrictions (which continued to permit numerous secular indoor activities) didn’t exclude houses of worship. After three trips to the Supreme Court and three losses, California seemed to get the message. But then, in Gateway City Church v. Newsom, Santa Clara County (undeterred by the Supreme Court’s clear guidance) attempted to reimpose its own county-level ban on indoor worship. This triggered the Supreme Court’s fourth reversal of the Ninth Circuit.

A predictable result

All these decisions set the table for Tandon. Unlike at the Ninth Circuit, California’s argument at the Supreme Court failed to convince. As the Court’s opinion enjoining the State’s gatherings ban explained, the legal standard the Ninth Circuit should have applied was “clear” from the Court’s prior decisions. Regulations are constitutionally suspect if “they treat any comparable secular activity more favorably than religious exercise.” And, to determine “comparable” activities, what matters is “the risks various activities pose, not the reasons why people gather.” The Court’s prior precedent thus should have made the problem with California’s restrictions obvious: they permitted numerous secular commercial activities while barring at-home religious gatherings, and California provided zero evidence-based justifications for this disparate treatment.

Tandon also reflects the Court’s not-so-subtle intent to put this issue to bed once and for all. The Court, for example, pointed out that this was the “fifth time” it “summarily rejected the Ninth Circuit’s analysis,” and found it “unsurprising” that these “litigants [too] are entitled to relief.”

Tandon never should have reached the Supreme Court. By April of 2021, the Court had already forged a path forward, clearly explaining how governments and lower federal courts should evaluate COVID-19 restrictions on core First Amendment rights. The only surprising thing is that California and the Ninth Circuit ignored these clear rules, necessitating the Supreme Court’s intervention yet again.

Nick Reaves and Joe Davis are attorneys for the Becket Fund for Religious Liberty