WASHINGTON, DC – Justice Amy Coney Barrett is already having a big impact on how the Supreme Court … [+]
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The Supreme Court is clearly taking a new, more aggressive approach to protecting religious liberty. Yesterday the Court prevented enforcement of a California order prohibiting more than three households from gathering in private to worship. This is the latest in string of victories for those challenging Covid-related laws against religious gatherings. This case, Tandon v. Newson, shows that the Court’s new Justice, Amy Coney Barrett, is already having a big impact on the Court. The decision was decided 5-4; without Coney Barrett, it would have gone the other way.
This post will explain why yesterday’s decision will have a big impact on future religious liberty cases. About two decades ago, the Supreme Court held that there is no special religious exemption for a “neutral law of general applicability.” So if a law doesn’t purposefully single out religious practices and applies equally to religious and non-religious behavior, the Court will uphold the law even if it substantially burdens religious worship. For example, the Court upheld the sanction of a Native American who used the illegal drug peyote even though he did so as part of religious ceremony. Because the law was neutral (it wasn’t drafted with the intent of burdening religious practices) and generally applicable (it applied to all peyote users, not just religious ones) the law was upheld by the Supreme Court.
However, if a law is not neutral or generally applicable, the Court will subject that law to “strict scrutiny”. That means that the Court will strike the law down unless it is narrowly tailored to further a compelling governmental purpose. That’s a tough standard—the same one applied to racially discriminatory laws. So a lot depends on how the Court applies the terms “neutral” and “generally applicable”.
Yesterday’s case turns on what “generally applicable” means. California did not specifically restrict religious worship in the home. Rather, the State limited all gatherings, both religious and secular, in homes to three households. The four dissenting Justices argued that the law is neutral because it applies equally to religious and secular private gatherings.
But the five Justice majority disagreed. They noted that more than three households can gather at hair salons and other secular businesses. The dissent said that the majority was comparing “apples and watermelons” because it is more difficult to enforce Covid restrictions in private homes than in public businesses like hair salons. They argued that a law is generally applicable if it treats secular and religious private gatherings the same way.
The majority batted that argument away. They held that: “Where the government permits other activities to proceed with precautions, it must show that the religious exercise at issue is more dangerous than those activities even when the same precautions are applied.” So if the government permits any exceptions to Covid-related restrictions that don’t make the same allowances for worship, the Court will apply strict scrutiny.
Strict scrutiny has been famously called “strict in theory but fatal in fact”. Given the Court’s new approach, the government will be held to a very high standard in restricting religious services for health reasons if the government allows any exceptions at all, which, of course, it always will because essential services have to continue and because total lock downs are politically and economically unsustainable.
There are advantages and disadvantages to this approach. There are certainly good reasons to give religious services strong protection. There are segments of society that are indifferent, even hostile, to religion, and would not exercise appropriate care in restricting worship. On the other hand, the Court’s aggressive approach invites judges with no public health training to overturn the judgment of much more qualified people about the health risks caused by in-person religious services. And it puts judges, who are government officials, in the position of deciding what sorts of things are religious services. A yoga work out? Tai Chi classes?
But for good and for bad, this is the new constitutional reality and it is not likely to change soon. Should a fourth Covid surge occur, legislators and governors are going to have to think very carefully about how any new restrictions will affect religious services.
