Skip to main content

Kagan Says Conservative Justices Compared ‘Apples and Watermelons’ in Ruling for Churches and Against COVID-19 Restrictions


According to the U.S. Supreme Court, the government of the state of California and the 9th Circuit Court of Appeals just don’t get it when it comes to protecting First Amendment religious liberties against government shutdown orders aimed at curtailing the spread of the novel coronavirus pandemic.

“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise,” the high court wrote Friday night while ruling in favor of religious leaders who sought to hold prayer gatherings in their own homes. “It is unsurprising that such litigants are entitled to relief.”

Legally speaking, the 5-4 “shadow docket” decision granted an emergency application for injunctive relief against state officials.  It prevents them from enforcing COVID orders against religious leaders who wished to reconvene their aforementioned longstanding religious gatherings. Chief Justice John Roberts said simply he would have denied the application; Justice Elena Kagan issued a dissent joined by Justices Stephen Breyer and Sonia Sotomayor.

The majority of justices seemed perturbed that they needed to once again lay out their logic. In sum, they seemed to suggest that the government’s job during a pandemic was to shut everything down — if it so chose — but to keep its hands off constitutionally protected religious activities.

“This Court’s decisions have made the following points clear,” the majority of justices wrote while laying out a series of points of interpretation. “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.”

What followed were three additional interpretive points that suggested, in simple terms, that the government cannot shut down religious gatherings while allowing similar secular gatherings to take place.

“It is unsurprising that such litigants are entitled to relief,” the majority explained — again repeating its opinions in previous cases. “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.’ That standard ‘is not watered down’; it ‘really means what it says.'”

In an application for an emergency injunction, the petitioners chided the state’s COVID-19 restrictions as unfair given their Constitutional rights to exercise their religious beliefs free from government interference.

“[F]or over a year now, California has completely prohibited or substantially restricted” such at-home religious “gatherings and many others,” the petitioners wrote on April 2nd in a request for legal relief. “Indoor gatherings are completely prohibited in Tier 1 counties and limited to no more than three households in Tiers 2, 3, and 4, while outdoor gatherings are limited to no more than three households in all tiers. By contrast, the State allows countless other activities to take place outdoors without any numerical limitations, from weddings and funerals to secular cultural events and political rallies. It also permits more than three households to congregate inside buses, trains, universities, airports, barber shops, government offices, movie studios, tattoo parlors, salons, and other commercial venues. Santa Clara County, where [two petitioners] live, is currently in Tier 3 and thus even restaurants and movie theatres can operate indoors at 50% capacity.”

The Court agreed. Here’s its application of law to fact in the instant case:

First, California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and con- certs, and indoor restaurants to bring together more than three households at a time. Second, the Ninth Circuit did not conclude that those activities pose a lesser risk of transmission than applicants’ proposed religious exercise at home. The Ninth Circuit erroneously rejected these comparators simply because this Court’s previous decisions involved public buildings as opposed to private buildings. Third, instead of requiring the State to explain why it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities, the Ninth Circuit erroneously declared that such measures might not “translate readily” to the home. The State cannot “assume the worst when people go to worship but assume the best when people go to work.” And fourth, although California officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of “moving the goalposts” retain authority to reinstate those heightened restrictions at any time.

The justices agreed that the petitioners were “likely to succeed on the merits of their free exercise claim” because the petitioners were “irreparably harmed by the loss of free exercise rights ‘for even minimal periods of time'” and because “the State has not shown that ‘public health would be imperiled’ by employing less restrictive measures.”

Justice Kagan, writing in dissent, said the majority cast too wide a net in an effort to find gatherings similar to those the petitioners sought to convene in their homes:

“The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct,” Kagan wrote.  “Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at- home gatherings of all kinds, religious and secular alike.”

“California need not, as the per curiam [unsigned majority opinion] insists, treat at-home religious gatherings the same as hardware stores and hair salons—and thus unlike at-home secular gatherings, the obvious comparator here. As the per curiam’s reliance on separate opinions and unreasoned orders signals, the law does not require that the State equally treat apples and watermelons.”

Kagan elsewhere accused the majority of writing an opinion which “defies the factual record” and “continues to disregard law and facts alike.”

The case is styled as Tandon v. Newsom. Read the six-page opinion and dissent below.

Ritesh Tandon v Gavin Newsom, Governor of California by Law&Crime on Scribd

[image via Drew Angerer/Getty Images]

[Editor’s note: legal citations have been omitted from quotations.]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.