Thursday, April 22, 2021
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 gathere
In-home worship and Bible study are crucial to the religious exercise of mill
Yet, for over a year, California’s COVID restrictions prevented Jews and Christians alike from hosting any in-home religious gatherin
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 Ca
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
Seeking relief from these targeted restrictions, Pastor Jeremy Wong and Karen Busch challenged the State’s ban on in-home religio
So Karen and Pastor Wong—following a trail blazed by previous challengers to California’s draconian rest
Much of the commentary on this case ha
How we got here
Tandon was far from the first time the Supreme Court had confronted California’s discri
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