Supreme Court again blocks California Covid restriction on religious activities

By Joan Biskupic, CNN legal analyst & Supreme Court biographer | Updated 1:31 AM ET, Saturday, April 10, 2021

(CNN) The Supreme Court by a 5-4 vote on Friday blocked another state Covid-19 restriction on religious services, with another late-night order, over protests from California officials that the limits affecting some Bible study sessions did not impinge on religious rights and were to be lifted within days.

The unsigned order for the high court majority also revealed the deep ideological fissure, with conservatives (including the three appointees of former President Donald Trump) in control and liberals dissenting bitterly.

Chief Justice John Roberts also dissented, although he did not sign the statement by the three justices on the left, written by Justice Elena Kagan.

“In ordering California to weaken its restrictions on at-home gatherings, the majority yet again insists on treating unlike cases, not like ones, equivalently,” Kagan wrote, adding that “the law does not require that the State equally treat apples and watermelons.”

“And (the majority) once more commands California to ignore its experts’ scientific findings, thus impairing the State’s effort to address a public health emergency.”

Throughout the coronavirus pandemic, religious adherents have implored the justices to prevent certain state health restrictions affecting religious services and they have notably prevailed since October’s addition of Justice Amy Coney Barrett, succeeding the late Justice Ruth Bader Ginsburg.

Then we must thank God that Justice Barrett replaced Justice Ruth Bader Ginsburg, because Justice Ginsburg had voted to allow such restrictions before she went to her eternal reward. By what right does the government, whether local, state or federal, have the authority to determine whom we allow into our homes?

I know, I know, Governors in many states issued such restrictions, including Governor Andy Beshear (D-KY). I am happy to state that we violated Governor Beshear’s authoritarian decrees on both Thanksgiving and Christmas (he ordered no more than ten persons, from no more than two households), and had the Governor himself showed up at the door, I would have given him the finger and told him to get the f(ornicate) off my property.^[1]Though the gatherings were of fewer than ten people, they were from three households. More, when my sister, who didn’t attend the dinner itself, came by to pick up a Thanksgiving dinner plate, … Continue reading

But a whole lot of the sheeple accepted this, accepted the idea that the State could tell them whom they could invite into their homes, with whom they could associate, and how. The decision in Tandon v Newsom was based on the Pyrite State treating religion differently, and more strictly, than some other gatherings — the Governor’s attorneys claimed that the in-person Bible study sessions were being treated no differently than any other in home gatherings — but that ignores the fact that the state was limiting freedom of association as well as freedom of religion. From the unsigned Per Curiam order:

(N)arrow 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.

This paragraph accepts the idea that the government’s “interest in reducing the spread of COVID” extends into the individual homes of the American people; the decision simply holds that California’s orders were not well-written enough.

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.

Translation: if the State could show that public health would be imperiled by not intruding into people’s private homes, the Court could allow it.

The Fourth Amendment to the Constitution of the United States specifies that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

What are we to conclude that, if the State could demonstrate that public health — or whatever other “compelling” government interest the authoritarians could dream up — would be imperiled, it would be reasonable for the authorities to enter your home and siese the “persons or things” to be removed, even if there was no crime committed?

I get it: the Supreme Court likes to narrowly tailor its own decisions and precedents, but this decision, while a victory for freedom or religion, does not go far enough, and leaves open the possibility that the State can control who enters your private home.