For the fifth time, the U.S. Supreme Court has corrected the U.S. Court of Appeals for the 9th Circuit’s analysis of California’s COVID-19 restrictions on religious exercise.
In its decision on Friday in Tandon v. Newsom, the high court reminded lower courts and lawmakers alike that, even during a crisis like the pandemic, governments cannot treat religious groups worse than secular groups.
The decision is particularly timely because on Tuesday, the California Senate Judiciary Committee held a hearing about the Religion is Essential Act, a bill that would ensure that the state treats churches and religious groups at least as well as secular businesses that the state allows to open during emergencies. Because the executive branch (Gov. Gavin Newsom) has failed to protect the fundamental rights of Californians, a handful of legislators are taking action. And the fact that the Supreme Court had to step in once again in Tandon shows that help cannot come too soon.
Tandon deals with California’s decision to prohibit three or more households from gathering in a private home for religious purposes like a Bible study or a prayer meeting. The 9th Circuit refused to grant an injunction to religious Californians while the case goes through the courts. But in a 5-4 decision April 9, the Supreme Court granted the injunction, pointing to California’s unfair restrictions that treat “some comparable secular activities more favorably than at-home religious exercise.”
California allows secular businesses like hair salons, movie theaters, and indoor restaurants to bring together more than three households at a time.
It is striking that California keeps ignoring the Supreme Court. Time and again, the court has made clear that religious individuals are “irreparably harmed” when they lose free exercise rights “for even minimal periods of time.” But California continues to violate these rights, despite the high court’s repeated corrections.
Our Constitution guarantees that certain rights — like the right to exercise religion — will be protected. Because of that guarantee, governments must rigorously protect that right and cannot make emergencies an excuse to curtail it. When the executive branch persists in violating fundamental rights, the legislature must intervene.
This is why legislators in California, and in other states, have rightly introduced the Religion is Essential Act. This bill is designed to ensure that churches and religious groups are not treated worse than secular businesses during an emergency.
The Act allows states to impose neutral health and safety requirements that other essential businesses must follow, but it prevents states from targeting churches and religious organizations with those requirements. In other words, if a city allows big box stores and grocery stores to open during a crisis, it must allow the same freedom of churches and religious organizations. If a hardware store can open at 50% capacity, churches cannot be capped at a lower percentage. If a grocery store can be open at 25% capacity, a religious charity must be allowed to open at the same capacity.
This is exactly what the Supreme Court said in Tandon v. Newsom: Governments cannot impose harsher restrictions on religious gatherings than on secular gatherings. The principle is straightforward, but California’s executive branch is having trouble grasping it.Gov. Newsom has had plenty of opportunities to correct course and show proper respect for religion, but he has not done it. It is high time for the state legislature to protect the rights of all Californians with the Religion is Essential Act.
Greg Chafuen is legal counsel for the Center for Legislative Advocacy at Alliance Defending Freedom (@Alliance Defends).
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April 14, 2021 at 11:21PM
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