Late on a Friday evening in April 2021, over a year into the COVID-19 crisis, the U.S. Supreme Court issued a brief opinion in Tandon v. Newsom that dramatically transformed constitutional law: it ruled that state and local governments seeking to curb the spread of the novel coronavirus may not restrict in-person religious gatherings more rigorously than any other type of activity, such as shopping for groceries or working at a warehouse.
What does this mean?
According to the Supreme Court, when a law treats any activity more favorably than religious exercise, this now constitutes illicit—and likely unconstitutional—discrimination. Given that nearly all laws and policies contain some limitations (for example, minimum wage laws that exempt restaurants), this standard could have a sweeping impact.
The Supreme Court’s new approach provides religious activity with a level of constitutional protection greater than nearly any other fundamental right, including the right to free speech, abortion, and racial equality.
About the report
The report We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic shows that the Supreme Court’s COVID-era opinions have created a hierarchy of constitutional rights, with religious rights at the top. This legal regime will have a resounding impact on U.S. law, affecting policymakers’ ability to protect public health, prevent discrimination, and secure labor rights long after the current COVID-19 crisis has abated.
Key points of the report include:
- The Supreme Court has created an unprecedented “discrimination on steroids” test for finding that a law is unfair to religious practice. This standard is far more sensitive than the test for finding discrimination based on race.
- The Supreme Court has awarded far greater protection to the right to free exercise of religion during the COVID pandemic than other rights, including the right to abortion, voting rights, and the right to be free from cruel and unusual punishment.
- In its COVID/Free Exercise opinions, the Court has declined to award deference to scientific experts, and has even seemed to reject common knowledge about day-to-day activities - such as the many ways in which a religious service differs from a trip to the grocery store, and might therefore be regulated differently.