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US Supreme Court blows up another of Gov. Newsom’s restrictions on religious liberty

During his time of pandemic-excused one-man rule (aided and abetted by a State Legislature able but unwilling to set aside his emergency powers), California Governor Gavin Newsom issued orders that gutted the State’s economy and squashed public assemblies of all kinds.

Even at-home religious observance (for example, Bible study) were not allowed if those gathered came from more than three households.

This particular restriction was taken to court by Pastor Jeremy Wong and others. Over the last year, the case wound a weary path to the Ninth Circuit Court of Appeals, which returned a negative verdict against their request for injunctive relief pending a final Ninth Circuit decision.

Their next step was an emergency appeal (pdf) to the United States Supreme Court.

Question presented to the Supreme Court

The formal statement of their appeals is as follows:

In ordinary times, Pastor Jeremy Wong and Karen Busch regularly held Bible studies, prayer meetings, and worship services at their homes—as had millions of other Christians in California who sincerely believe assembling for small-group, “house church” fellowship is just as indispensable to their faith as attending Mass is for a Catholic. Yet for over a year now, California has completely prohibited or substantially restricted those “gatherings” and many others. 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 Wong and Busch live, is currently in Tier 3 and thus even restaurants and movie theatres can operate indoors at 50% capacity.

The question presented is: Whether California’s restrictions on “gatherings” trigger and fail strict scrutiny under the Free Exercise Clause to the extent that they prohibit (or severely restrict) at-home religious gatherings — notwithstanding this Court’s clear instructions that California “must place religious activities on par with the most favored class of comparable secular activities.” App. 36 (Bumatay, J., dissenting).

Divided Court decides in favor of in-home small gatherings

At SCOTUSblog, Amy Howe summarizes the Court’s response:

A divided Supreme Court on Friday night granted a request (pdf) by a California pastor to put COVID-related restrictions on in-home Bible study and prayer meetings on hold. The ruling, issued just before midnight, was the most recent in a series of challenges, dating back almost to the start of the pandemic, to restrictions on in-person gatherings. Chief Justice John Roberts indicated that he would have denied the request; Justice Elena Kagan filed a dissenting opinion, which was joined by Justices Stephen Breyer and Sonia Sotomayor.

The opinion dryly notes “The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous.”

The Justices also noted the attempt by the State of California to declare the case moot by asserting that the restrictions would be lifted by April 15. In her article, Howe states:

Moreover, the majority added, a case may remain a live controversy even if the government changes the policy – particularly when, as here, “officials with a track record of ‘moving the goalposts’ retain authority to reinstate those heightened restrictions at any time.”