Supreme Court to Ninth Circuit: We Mean What We Say on Religious Liberty
It’s rare that a Supreme Court decision provides hints of impatience or frustration among the justices with members of lower federal courts, but that was the case late Friday with Ritesh Tandon, et al. v. Gavin Newsom (2021).
Consider the concluding paragraph(s) of the 5-4 decision in which the conservative majority struck down, yet again, the infamous Ninth Circuit’s decisions upholding California Gov. Gavin Newsom’s regulatory monstrosity of COVID-19 lockdown measures against religious assembly:
This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. See Harvest Rock Church v. Newsom, 592 U. S. (2020); South Bay, 592 U. S. ; Gish v. Newsom, 592 U. S. (2021); Gateway City, 592 U. S. .
It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny.
And historically, strict scrutiny requires the State to further ‘interests of the highest order’ by means ‘narrowly tailored in pursuit of those interests.’ Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993) (internal quotation marks omitted). That standard ‘is not watered down’; it ‘really means what it says.’” Ibid. (quotation altered).
That is about as decisive a repudiation as the justices could express short of something along the lines of “Read Our Lips: The First Amendment means what it says about religious freedom. And so do we! You got it?”
The same impatience is clear throughout the decision, beginning with the first paragraph of the decision’s analysis: “The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. This Court’s decisions have made the following points clear.”
The majority then walked the Ninth Circuit through a Constitution 101 explanation of what the lower court should not require being reminded:
“First, government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise … It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue.”
In other words, the Free Exercise Clause — that’s the one in the First Amendment that declares “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …” — requires a demonstration of strict scrutiny every time government claims it must limit religious exercise. And, oh by the way, you don’t get off the hook for violating religious freedom by treating some other institution as badly or even worse.
Then there is this from the high court’s conservative majority:
“Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue … Comparability is concerned with the risks various activities pose, not the reasons why people gather.”
In other words, it should be of no consequence to government what might be the particular nature of the religious assembly — which in this specific case involved home-based Bible studies — because the only permissible issue to consider in comparing activities proposed for regulation is their comparative risks.
https://pjmedia.com/culture/marktapscott/2021/04/13/supreme-court-to-ninth-circuit-we-mean-what-we-say-on-religious-liberty-n1439561