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Tandon v. Newsom (2021)

Introduction:

Throughout the COVID-19 pandemic, the state government of California along with many of its county governments placed restrictions on gatherings of people. One of their regulations had the effect of preventing more than three households gathering together at a time for any in-home prayer and Bible studies. Plaintiffs sued the state, arguing that these restrictions violated the First Amendment since many secular businesses were allowed to have more than three households of people within it at any time, and that therefore religion was being specifically discriminated against. The Supreme Court recently released a per curiam (unsigned) decision concerning the constitutionality of these regulations.

Materials:

Handout A: First Amendment

Handout B: Tandon v. Newsom (2021)

Directions:

Have students read Handout A: First Amendment and Handout B: Tandon v. Newsom (2021). Then have them answer the following questions.

  1. What does the First Amendment say regarding the free exercise of religion?
  2. What was the vote count in this case? Who did the Court rule in favor of?
  3. What is “strict scrutiny”?
  4. Did the Court determine that California was treating religious activities separately from secular activities? Why or why not?
  5. In her dissenting opinion, Justice Elena Kagan wrote:

“The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding the right secular analogue may raise hard questions. But not today. California limits religious gatherings in homes to three households. If the State also limits all secular gatherings in homes to three households, it has complied with the First Amendment. And the State does exactly that: It has adopted a blanket restriction on at home gatherings of all kinds, religious and secular alike.”

Explain her argument in your own words. Do you find her opinion or the per curiam opinion more compelling on this issue? Why or why not?