Strict Scrutiny and Free Exercise of Religion

 Tandon v. Newsom (2021) granted relief from California's ban on in-home religious services until the Court hears the case, overturning the 9th Circuit's unwillingness to strike down the ban in the meantime.

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. Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4). It is no answer that a State treats some comparable secular businesses or other activities as poorly as or even less favorably than the religious exercise at issue. Id., at ___–___ (KAVANAUGH, J., concurring) (slip op., at 2–3).

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. Id., at ___ (per curiam) (slip op., at 3) (describing secular activities treated more favorably than religious worship that either “have contributed to the spread of COVID–19” or “could” have presented similar risks). Comparability is concerned with the risks various activities pose, not the reasons why people gather. Id., at ___ (GORSUCH, J., concurring) (slip op., at 2). 

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. 

This is interesting because the insistence of courts of appeals to apply intermediate scrutiny to the Second Amendment is usually couched in public safety terms.  Bu this is also a public safety claim.  Perhaps the Court will get past its fear of court packing at some point and recognize that strict scrutiny applies here as well.