The Supreme Court disregards public health in case against Gavin Newsom’s COVID rules

The Supreme Court’s ruling late Friday night, April 9 in Tandon v. Newsom is just the latest indication of a conservative majority determined to aggressively protect religious freedom, even when it means ignoring both the Constitution and public health in doing so.

In a 5-4 decision, with the five most conservative justices comprising the majority, the court issued an injunction against Gov. Gavin Newsom’s order that limited at-home religious worship gatherings to no more than three households.

This should have been an easy case for the court. The Constitution’s protection of free exercise means that the government must treat religious gatherings the same as comparable secular ones. Discrimination against religion is unconstitutional unless it is necessary to achieve a compelling government purpose.

Newsom’s order was not discriminatory. It adopted a blanket restriction on at-home gatherings of more than three households of all kinds, religious and secular alike. That is why the lower courts in the case rightly rejected the constitutional challenge.

But the conservative justices – Thomas, Alito, Gorsuch, Kavanaugh and Barrett — said religious worship must be treated the same as that which is subjected to the most permissive regulation, even if it is nothing like that activity. The court said regulations are to be treated as discriminatory “whenever they treat any comparable secular activity more favorably than religious exercise.”

These justices broadly define “comparable” so that if the government allows any secular activity, it must allow religious worship too. In a prior ruling, the conservative majority said that since New York had allowed stores like bicycle shops to open, it had to allow churches and synagogues to open, too.

But this fundamentally misunderstands what equality is about. It is treating like things alike, and unalike things differently; it is not treating everything the same. Newsom’s order treated all home gatherings exactly the same because they posed the same risk of spreading COVID-19. That some stores might be treated more leniently, where there was less risk of spreading the disease, should not matter.

In other words, the conservative majority is not treating religious worship the same as other activities, but more favorably than everything else. Religious worship alone is compared to the most leniently regulated activity.

Favoring religion in this way violates another part of the First Amendment: the prohibition of the government taking any actions respecting the establishment of religion. For decades the Supreme Court has held that the government violates the Establishment Clause if it acts with the purpose or effect of favoring religious activities over secular ones. For example, many years ago, the Supreme Court declared unconstitutional a state law that allowed all employees to take their day of sabbath off of work but provided no comparable benefit for secular activities.

The conservative majority’s aggressive protection of religious freedom also ignores another basic constitutional principle: Courts should defer to the government when it comes to actions to protect public health. The federal district court upheld the restrictions on in-home gatherings based on uncontested testimony of public health experts. The evidence showed that “private houses are typically smaller and less ventilated than commercial establishments” and that “social distancing and mask-wearing are less likely in private settings and enforcement is more difficult.” Also, people are likely to remain longer at in-home gatherings than in commercial settings.

In earlier an case involving restrictions on religious worship to stop the spread of COVID-19, Chief Justice John Roberts, no liberal, explained that the “Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’ Where those broad limits are not exceeded, they should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.”

When Roberts wrote this in May of 2020, he was part of a five-person majority that included Justices Ginsburg, Breyer, Sotomayor and Kagan. But in replacing Justice Ginsburg with Justice Barrett, Roberts is no longer in the majority. The court’s ruling shows that a majority of the justices are now determined to protect religious worship, even when it means disregarding basic constitutional principles and necessary regard for public health.

This story was originally published April 29, 2021 at 6:00 AM with the headline "The Supreme Court disregards public health in case against Gavin Newsom’s COVID rules."