593 U. S.
____ (2021) SUPREME
COURT OF THE UNITED STATES April 9,
2021 PER CURIAM. The application for injunctive
relief presented to JUSTICE
KAGAN and by her referred to the Court is granted
pending disposition of the
appeal in the United States Court of Appeals for the
Ninth Circuit and
disposition of the petition for a writ of certiorari. * * * The Ninth Circuit’s failure to
grant an injunction pending
appeal was erroneous. This Court’s decisions have made
the following points
clear. 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. 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. Third, the government has the
burden to establish that the
challenged law satisfies strict scrutiny. To do so in
this context, it must do
more than assert that certain risk factors “are always
present in worship, or
always absent from the other secular activities” the
government may allow.
Instead, narrow tailoring requires the government to
show that measures less
restrictive of the First Amendment activity could not
address its interest in
reducing the spread of COVID. Where the government
permits other activities to
proceed with precautions, it must show that the
religious exercise at issue is
more dangerous than those activities even when the
same precautions are
applied. Otherwise, precautions that suffice for other
activities suffice for
religious exercise too. Fourth, even if the government
withdraws or modifies a COVID
restriction in the course of litigation, that does not
necessarily moot the
case. And so long as a case is not moot, litigants
otherwise entitled to
emergency injunctive relief remain entitled to such
relief where the applicants
“remain under a constant threat” that government
officials will use their power
to reinstate the challenged restrictions. These principles dictated the
outcome in this case, as they
did in Gateway City Church v. Newsom (2021). 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 concerts, and
indoor restaurants to bring
together more than three households at a time. The
state 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. Applicants are likely to succeed on the merits of their free exercise claim; they are irreparably harmed by the loss of free exercise rights “for even minimal periods of time”; and the State has not shown that “public health would be imperiled” by employing less restrictive measures. Accordingly, applicants are entitled to an injunction pending appeal.
THE CHIEF JUSTICE would deny
the application. JUSTICE KAGAN, with whom
JUSTICE BREYER and JUSTICE
SOTOMAYOR join, dissenting. I would deny the application
largely for the reasons stated
in South Bay United Pentecostal Church v. Newsom
(2021). The First Amendment
requires that a State treat religious conduct as well
as the State treats
comparable secular conduct. 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 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. And even supposing a court
should cast so expansive a comparative
net, the per curiam’s analysis of this case defies the
factual record.
According to the per curiam, “the Ninth Circuit did
not conclude that”
activities like frequenting stores or salons “pose a
lesser risk of
transmission” than defedants’ at-home religious
activities. But Judges Milan
Smith and Bade explained for the court that those
activities do pose lesser
risks for at least three reasons. First, “when people
gather in social
settings, their interactions are likely to be longer
than they would be in a commercial
setting,” with participants “more likely to be
involved in prolonged
conversations.” Second, “private houses are typically
smaller and less
ventilated than commercial establishments.” And third,
“social distancing and
mask-wearing are less likely in private settings and
enforcement is more
difficult.” These are not the mere musings
of two appellate judges: The
district court found each of these facts based on the
uncontested testimony of
California’s public-health experts. No doubt this
evidence is inconvenient for
the per curiam’s preferred result. But the Court has
no warrant to ignore the
record in a case that turns on risk assessments. In ordering California to weaken its restrictions on at home gatherings, the majority yet again “insists on treating unlike cases, not like ones, equivalently.” And it once more commands California “to ignore its experts’ scientific findings,” thus impairing “the State’s effort to address a public health emergency.” Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision. |