Op-Ed: Supreme Court decision on at-home worship wisely supported religious liberty

For more than a year, the state of California prohibited my clients, Pastor Jeremy Wong and Karen Busch, as well as countless others from every faith tradition, from meeting with other believers in their own homes to study religious texts, pray and worship together. This is because the state’s “gatherings guidance” banned all indoor gatherings in counties where COVID-19 was most widespread and limited such gatherings to no more than three households in all other counties.

These restrictions strike at the heart of Christian practice. As Pastor Wong has attested under penalty of perjury, “communal worship, congregational study, and collective prayer are central tenets of my faith and ministry.” Indeed, he says, “every description of the church in the New Testament is that of a physically gathered people.”

For this reason, house churches and small-group gatherings have been a core part of the Christian faith for two millennia. And while technology has done much to help us survive the pandemic, these types of religious in-person gatherings, Pastor Wong explained, “are impossible to replicate in an online format.”

Wong and Busch were more than willing to hold their Bible studies and prayer meetings safely — requiring attendees to wear masks, socially distance and stay away if symptomatic — but the state refused to allow an accommodation for genuine religious gatherings. Wong and Busch were even willing to hold these gatherings in their backyards, but the state’s gatherings guidance prohibited (or sharply restricted) outdoor gatherings as well, even in counties where viral spread was minimal or nonexistent.

After patiently enduring these restrictions for nearly six months, my clients, with the support also of the Center for American Liberty, turned to the federal courts for relief. The 1st Amendment protects the “free exercise” of religion against government encroachment — whether that religious activity occurs in a church, synagogue, mosque or in the privacy of one’s own home. Thus, even if the state can cancel birthdays and Super Bowl parties, courts must look more closely at government restrictions that curtail religious expression.

Under established Supreme Court precedent, whenever a law burdens religious exercise the court must ask whether it is neutral and generally applicable — that is, whether the law treats religious activity the same way it treats comparable nonreligious activities. If the answer to that question is “no,” the court will strike down the law unless it is narrowly tailored to advance a compelling government interest. In other words, the government must show that measures less restrictive of the free exercise of religion could not address its interest.

The gatherings guidance, although applicable to many secular as well as religious gatherings, is riddled with exceptions. For example, the state allows indoor “cultural ceremonies”— including weddings and funerals that are entirely secular — to exceed the three-household limit. The state also allows dozens or even hundreds of people to congregate indoors in buses, trains and airports. Government offices and favored businesses where people gather in close proximity are also allowed to operate.

In parts of the state that fall into the “orange” and “yellow” tiers, even movie theaters and restaurants can operate. But Wong and Busch, who reside in Santa Clara County, which is currently in the orange tier, were prohibited from gathering in their own homes (or backyards) to pray or study Scripture with more than two other people from different households.

Thankfully, that all changed on Friday night, when the United States Supreme Court, in Tandon vs. Newsom, granted our request for an emergency injunction. As the court explained, government regulations trigger strict scrutiny “whenever they treat any comparable secular activity more favorably than religious exercise. It is no answer that a State treats some comparable secular businesses or other activities as or even less favorably than the religious exercise at issue.”

The court held that the gatherings guidance was subject to strict scrutiny because “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.” Because the state had not explained — or even attempted to explain — why “it could not safely permit at-home worshipers to gather in larger numbers while using precautions used in secular activities,” the court issued an injunction permitting worshipers to once again gather in the privacy of their homes to worship God with other believers.

The court’s decision in Tandon sends a clear and important message to state and local governments that they cannot trample religious liberty while exempting their political allies and favored industries — such as Hollywood and big-box retailers — many of which lobbied hard for special treatment.

Thankfully, Gov. Gavin Newsom appears finally to have heeded that message. On Monday, “in response to recent judicial rulings,” California not only ceased enforcing restrictions on private in-home religious gatherings, but it also eliminated mandatory location and capacity limits on places of worship. Although the state still recommends limiting indoor worship to 25% of capacity in some counties and to 50% in others, religious groups no longer face criminal prosecution and civil penalties for exceeding those limits.

No one disputes that state and local leaders have faced difficult decisions in responding to the pandemic, but as the Supreme Court has now reiterated for the fifth time in five months, the government cannot treat the 1st Amendment’s free-exercise guarantee as a second-class right.

Robert Dunn represents the plaintiffs in Tandon vs. Newsom. He is an attorney in the San Jose office of Eimer Stahl LLP, where he focuses his practice on complex commercial litigation.