By Vynateya Purimetla (’21)

Tandon v. Newsom et al., 593 U.S. (2021)

Throughout the ongoing pandemic, there has been a fervent debate between individual liberty and collective security. This universal debate takes a religious face in Tandon v. Newsom. Currently, California Governor Gavin Newsom upholds restrictions against gatherings of four or more in accordance with CDC guidelines. Ritesh Tandon, however, brought this issue to the 9th Circuit, citing disparate applications of the regulation on secular and religious gatherings.

As established in Employment Division v. Smith in 1990, the Court ruled that generally applicable laws (not specifically targeting a religion or its group) do not violate the 1st Amendment’s free exercise clause. This doctrine was utilized widely as an equitable precedent between religious and non-religious. However, recently, Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett countered Smith’s efficacy in their ruling: “government regulations are not neutral”. In this way, they neuter Smith’s applicability and unfurl a host of subsequent questions: What defines a religious activity? In which cases can religious activities be regulated? If government laws are designed for public safety but “not neutral”, are unsafe religious activities allowed?

Justice Kagan, along with Breyer, Sotomayor, and Roberts, agree. Kagan specifically cites the difference in length between at-home and commercial settings, the difference in respiration between prolonged conversations and commercial transactions, and the difference between unventilated, small home gatherings and socially-distanced, masked corporations. Despite this, the Conservative bloc of the Court decided Newsom in favor of Tandon and religious organizations. 

The Court establishes four determinants in religious-government cases: (1) neutrality and general applicability pursuant to the Free Exercise Clause, (2) comparability of risk and regulation, (3) scrutability of unprejudiced government enforcement, and (4) the government’s modified rules during litigation does not alter the plaintiff’s original case. 

Though Newsom should be a victory for religious communities, the American judicial system’s Islamophobic and anti-Abrahamic systemic slant proves otherwise. In 2019’s Dunn v. Ray, an Alabama Court rejected a Muslim death row inmate appeal for final prayers with an imam. However, this luxury was afforded to Christians and pastors. Furthermore, in 2018’s Trump v. Hawaii, a ‘Muslim ban’ policy was temporarily upheld despite violation of the Free Exercise Clause of the First Amendment. In this lens, Tandon v. Newsom, is inherently biased towards protecting Christian religious rights. Nevertheless, Justice Barrett’s sway vote in upending Smith indicates that this religious tide is beginning to shift.