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On Friday, 4/9/21, the Supreme Court issued an injunction prohibiting California from enforcing an arbitrary rule that no more than three families may gather for in-home worship or prayer meetings.

The unsigned opinion stated:

“This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise.”

This is the fifth injunction against California restrictions on religious worship. For this moment in time at least, the Free Expression clause of the First Amendment is still in place and operational.

Why do I say “for the moment?” Previous decisions have been 6-3. Justice Roberts disagreed with this ruling but did not sign on to the dissent. The justices in favor of keeping the First Amendment in place may have slipped to 5-4.

The injunction is titled Ritesh Tandon, et al. v. Gavin Newsom, Governor of California, et al.

Other comments in the ruling are equally amusing.

The first paragraph says:

“The Ninth Circuit’s failure to grant an injunction pending appeal was erroneous. This Court’s decisions have made the following points clear.”

I have merely a businessman’s understanding of the law. I am a rank amateur when it comes to understand the nuances of Supreme Court rulings.

However, even I know that five successive Supreme Court injunctions overturning the rulings from one appeals court is a severe rebuke that the appeals court is not capable of comprehending the Constitution and, more seriously, is not able to read four previous injunctions overturning their opinions.

The ruling goes on to give explanations from the four previous rulings which should have made it very clear to the Ninth Circuit Court of Appeals how they should have assessed this case:

“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. …”

“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. …”

In other words, the state has the burden of proof to show the rules satisfy strict scrutiny. The “strict scrutiny” threshold is quite high.

The third point continues to explain that the state may not merely make an assertion they have cleared that threshold. They have to actually prove it. That should be an embarrassment to both the state officials, the District Court, and the Court of Appeals.

“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. …”

Translating that comment into simple language: since California reserves the right to reimpose these restrictions at the whim of the governor, there is still a need for an injunction even though the state relaxed the rules after the case was filed. Just as we saw in one of the New York rulings, churches need protection even though the rules aren’t in place at this second because the government can reimpose restrictions anytime they feel like it.

The ruling then repeats the point that previous injunctions should have led to this conclusion. One amusing comment in the middle of that discussion:

“The Ninth Circuit erroneously rejected these comparators simply because this Court’s previous decisions involved public buildings as opposed to private buildings.”

In other words, the Ninth Circuit ignored previous rulings because those injunctions dealt with cases in public worship spaces and this case involved a private residence used for worship and prayer. I have not read the underlying case, the District Court ruling, or the appeal court ruling. The comment suggests the Ninth Circuit decided the Supreme Court rulings do not apply because this case involves a private home instead of commercial business.

I hope that does not mean that the constitutional rights exist or don’t exist depending on whether you are inside or outside of your own home. I think this injunction makes it clear that is not the case.

Core conclusion and reasoning for the injunction:

“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.”

Key points from that comment: Individuals filing the appeal will likely win. They otherwise will suffer irreparable harm without an injunction. That harm would be incurred even if it takes places for a short time. California state government has failed to clear the ‘strict scrutiny’ threshold.

Dissenting statement

The dissent by Justice Kagan, with concurrence by Justices Breyer and Sotomayor, repeats the same arguments seen in previous dissents.

Interestingly, in one tiny detail the dissent proves the reasoning of the injunction: the dissent quotes a state “expert” asserting, not stating a verified fact or statistical study or even mentioning this particular case, but merely asserting, that mask wearing is less likely in a home gathering than in public. This is an assumption that the same protocols used in public venues would not be followed a private venue. This mere assertion is a basis for prohibiting religious exercise. I will go further – this is merely the personal assumption of the expert witness.

So, for the time being, the Supreme Court has said for a fifth time that strict scrutiny is required for restrictions placed on religious worship. For the fifth time SCOTUS has said that rules in California fail that test.

The Free Exercise clause is still in effect.


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