The Supreme Court applied a simple rule for 30 years when someone with a religious objection to a state law demanded exemption from the law. As long as the law applied equally to everyone, whether someone was religious or not, then everyone had to obey the law.
As the court in Employment Division v Smith (1990), religious objectors must “neutral law[s] of general applicability. ”
However, since Judge Amy Coney Barrett joined the court last year, the Supreme Court has been rapidly breaking down. Smith. Friday night, the court fired a bullet into Smithse hart. It has ruled that believers who want to gather in relatively large groups in someone’s home should be allowed to do so, despite the fact that California limits all gatherings at home to just three households.
Although the court’s new 5-4 ruling in Tandon v. Newsom does not explicitly dominate Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law Smith is basically a dead letter.
The court’s new majority achieved a revolution in its approach to religion and the rule of law, entirely through cases brought by churches and other religious actors, who wanted exemptions from public health rules to prevent the spread of Covid-19. delayed.
The court is serious about giving religious conservatives broad immunity from the law – in fact so serious that it is literally willing to risk people’s lives to achieve this goal.
What happened in Tandon v. Newsom?
Tandon is the latest in a series of decisions made by houses of worship – or in this case specific worshipers – that want to defy the rules of public health and limit the number of people who can gather for religious activities.
California limits gatherings in people’s homes to members of just three households. This is a blanket rule that applies to people who gather in a house for any reason, whether they are doing it to pray, to duvet covers they plan to sell on Etsy, or just to hang out with friends. So, below Smith, this rule would be legal because it treats religious and secular actors exactly the same.
Nevertheless, a majority of the Court has concluded that people who want to gather in religious activities in someone’s home should be exempt from the California Government of Public Health. And although the Tandon opinion not explicitly rejected Smith, it defines what qualifies as a “neutral law of general applicability” so narrow that the term is basically meaningless.
‘Government regulations are not neutral and generally applicable’, the five most conservative judges write in an unsigned opinion ‘whenever they deal with it any comparable secular activities more favorable than religious practice. But the Court also broadly defines what qualifies as “comparable secular activity”. (Although no judge signed their name under the majority opinion, Chief Justice John Roberts and Judges Stephen Breyer, Sonia Sotomayor and Elena Kagan differed. We therefore know that the remaining five judges formed the majority.)
“California treats comparable secular activities more favorably than religious practices at home,” the majority in Tandon claims, “to allow hair salons, shops, personal care services, cinemas, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time.”
As Justice Kagan explains in her dissent, there are three very good reasons why a state might treat these secular activities differently than a gathering in people’s homes. In the first place, ‘when people meet in social situations, their interaction is likely to be longer than in a commercial environment’, and the people at social gatherings are more likely to be involved in lengthy conversations.
In addition, ‘private homes are usually smaller and less ventilated than commercial establishments’, and ‘social distance and mask wear are less likely in private environments and it is more difficult to enforce.’
In the end, none of these distinctions mattered to the majority of the court. The practical impact of Tandon is it, as long as many religious objectors can quote any secular activities that are treated differently from a religious activity – even though the two activities are increasingly distinctive – the Supreme Court will most likely release the objector.
Tandon is not a particularly surprising decision – the court reached a similar ruling in November last year Roman Catholic Diocese of Brooklyn vs. Cuomo, a decision I described at the time as a “revolutionary victory” for religious conservatives.
Even after Roman Catholic Diocese, two Republican-appointed judges – Judge Milan Smith, a nominee George W. Bush and Judge Bridget Shelton Bade, a nominee Trump – concluded that California’s overall restriction on housing conventions should remain in effect.
The Tandon a ruling, in other words, is a signal that even conservative judges in the lower court need to be more protective of religious objectors – even when the objectors seek legal exemptions that can help spread a deadly disease.
It is not clear how Tandon will apply to religions that are not approved by the majority of the court
In theory, the decision is in Tandon must apply to all religious objections, regardless of which religion motivates such objections. In practice, however, the Supreme Court has not always been protective of believers who are unpopular in the Republican Party.
In Dunn v. Ray (2019), for example, the court rejected a request by a Muslim prisoner in Alabama’s death row to comfort an imam during his last moments. At the time, Alabama allowed Christians to have a pastor present during their execution, but not Muslims. So Dunn involved a straightforward case of religious discrimination.
In fairness, the court recently returned from its ruling in Dunn, after the decision caused widespread setbacks, even by many conservative commentators (David French of the National Review describes it as a ‘serious violation of the first amendment’). But, at least, Dunn shows that this court is instinctively less protective of the religious freedom of Muslims than of Christians.
The clearest example of this kind of religious preference is Trump teen Hawaii (2018), which maintained a Trump-era policy prohibiting citizens of multiple majority Muslim countries from entering the United States. The court did so despite Trump and his inner circle repeatedly boasting about their plans to target Muslims, in violation of the constitution’s ban on policies that prohibit the free exercise of religion.
In fairness, the Court based its decision on Hawaii mainly on concerns that courts should be reluctant to interfere in a president’s decisions regarding national security. But it’s hard to imagine how the risk of allowing an immigrant from Yemen to enter the United States poses a greater danger to Americans than Covid-19 – and indeed, before Judge Barrett joined the court , a majority of judges tended to adjourn to public health officials for the same reason they referred to election officials on national security issues.
As Chief Justice John Roberts in South Bay United Pentecostal Church v. Newsom (2020), a case decided before Barrett joined the court, public health decisions should not normally be subject to a second guess by a ‘non-elected federal court’, which does not have the background, competence and expertise has to assess public health and which is not accountable to the people. ”
Like the court’s face in the Dunn the case indicates, there is some nuance in the court’s approach to Muslim civil rights. The court did rule in favor of Islamic claimants in matters of religious freedom. In Holt v. Hobbs (2015), for example, a unanimous high court agreed that prisoners in the Muslim world should be allowed to grow a half-inch beard if their faith requires it.
But decisions like Dunn and Hawaii also suggests that the court is more reluctant to provide relief to Muslims than to provide such relief to Christians. In other words, it must be seen whether the hip-protective rule as set out in Tandon will apply to all people of the faith – or certain privileged religions will receive special treatment.