The Christian right is racking up huge victories in the Supreme Court, thanks to Amy
For 30 years, the Supreme Court applied a simple rule when someone with a religious objection to a state law sought an exemption from that law. So long as the law applied equally to everyone, regardless of whether someone is religious or not, then everyone had to comply with the law.
As the Court held in Employment Division v. Smith (1990), religious objectors must follow “neutral law[s] of general applicability.”
Ever since Justice Amy Coney Barrett joined the Court last fall, however, the Supreme Court has been rapidly dismantling Smith. On Friday night, the Court fired a bullet into Smith’s heart. It ruled that people of faith who want to gather in relatively large groups in someone’s home must be allowed to do so, despite the fact that California limits all in-home gatherings to just three households.
Although the Court’s new 5-4 decision in Tandon v. Newsom doesn’t explicitly overrule Smith, the decision makes it so easy for many religious objectors to refuse to comply with the law that Smith is basically a dead letter.
The Court’s new majority has accomplished what amounts to a revolution in its approach to religion and the law, entirely through cases brought by churches and other religious actors seeking exemptions from public health rules intended to slow the spread of Covid-19.
The Court is serious about giving religious conservatives broad immunity from the law — so serious, in fact, that it is literally willing to endanger people’s lives in order to achieve this goal.
What happened in Tandon v. Newsom?
Tandon is the latest in a series of decisions brought by houses of worship — or, in this case, specific worshipers — who wish to defy public health rules limiting the number of people who can gather for religious activity.
California limits gatherings in people’s homes to members of just three households. This is a blanket rule, applying to people who gather in a home for any reason, regardless of whether they do so to pray, to quilt blankets that they plan to sell on Etsy, or just to socialize with friends. So, under Smith, this rule would be lawful because it treats religious and secular actors exactly the same.
Nevertheless, a majority of the Court concluded that people who wish to gather in someone’s home for religious activity must be exempted from California’s public health rule. And, although the Tandon opinion does not explicitly repudiate Smith, it defines what qualifies as a “neutral law of general applicability” so narrowly that the term is basically meaningless.
“Government regulations are not neutral and generally applicable,” the five most conservative justices write in an unsigned opinion “whenever they treat any comparable secular activity more favorably than religious exercise.” But the Court also defines what qualifies as “comparable secular activity” very broadly. (Although no justice signed their name to the majority opinion, Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan dissented. So we know that the remaining five justices formed the majority.)
“California treats some comparable secular activities more favorably than at-home religious exercise,” the majority opinion in Tandon claims, “permitting hair salons, retail stores, personal care services, movie theaters, 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. First of all, “when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting,” and the people at social gatherings are “more likely to be involved in prolonged conversations.”
Additionally, “private houses are typically smaller and less ventilated than commercial…