Lucy Koh’s Religious Freedom Misstep

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During her nomination hearing Wednesday, Judge Lucy Koh, a district judge for the Northern District of California nominated to the Ninth Circuit, was asked repeated questions by Republican senators about her February ruling in Tandon v. Newsom. Judge Koh’s order denied injunctive relief to plaintiffs challenging California COVID restrictions on indoor gatherings that prevented them from conducting Bible studies and prayer meetings at their homes. The state had prohibited private indoor gatherings beyond the immediate households and limited private outdoor gatherings to three households. Koh was satisfied that the law did not violate the plaintiffs’ free-exercise rights because she concluded that it was “neutral and generally applicable,” subjecting it to the deferential rational basis standard of review, and that it would pass an even a stricter standard of review because it advanced compelling government interests in fighting the pandemic.

The primary question Tandon raised for the senators was how she could have upheld California’s COVID restrictions in this case when the state privileged many comparable secular activities that were not subject to limitations similar to those applied to homes. Those activities included hair salons, movie theaters, retail stores, hotels, and “personal care services” such as nail salons and tattoo parlors.

During her hearing, Koh defended her analysis as an application of a multi-factor test the Ninth Circuit had used in other cases to assess risk of transmission. As she acknowledged, those precedents had not addressed gatherings inside the home. But her risk of transmission analysis focused on risks at home while whitewashing the risks connected to comparable secular activities that were treated leniently. She mentioned “filming, going to laundromats, and visiting hotels” to the exclusion of personal care services and then dismissively asserted “that private gatherings are distinct from, and more likely to spread COVID-19 than, socially distanced commercial activities.” On appeal, a Ninth Circuit panel that was split 2–1 drew a similar conclusion before the Supreme Court reversed, saying it was “erroneous[]” to refuse to make comparisons between activities in “public buildings as opposed to private buildings.” The Court noted that the case marked “the fifth time” it “has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise,” adding, “It is unsurprising that such litigants are entitled to relief.”

The Court’s ruling vindicated the dissenter on the Ninth Circuit, Judge Patrick Bumatay, whose opinion gave one example after another showing how much Koh and his two Ninth Circuit colleagues on the panel had overlooked to reach their conclusions. For instance,

a beauty shop may host an unrestricted number of households, half of them bare-faced and in immediate proximity to the other half. But [plaintiff] Wong, in a space of the same size—even an outdoor space—would be limited to three households, despite donning masks and maintaining a six-foot distance.

Similarly, Bible study was off limits regardless of distance maintained or the size of the living room, yet “tattoo artists may inject ink into the arms, legs, and faces of clients with no household limitation.” The same disparity was evident in the permissive treatment of other “‘personal care services’ . . . where hours-long physical proximity and touching is required.” Additionally, California did not impose maximum household limits on a political party or organization that wished to protest or rally at the same location where in-home religious services were subject to those limits.

Bumatay’s analysis should have commanded a majority based on Supreme Court precedent regarding COVID restrictions. The high court had established in Roman Catholic Diocese of Brooklyn v. Cuomo that strict scrutiny applies to government regulations that treat any secular activity more favorably than religious exercise.

The Ninth Circuit recognized that principle in Calvary Chapel Dayton Valley v. Sisolak among other cases. But being the Ninth Circuit, it was not a consistent follower of Supreme Court precedent. On February 5 — the same day that Koh issued her order in Tandon — the Supreme Court enjoined California’s prohibition on indoor worship services after the Ninth Circuit failed to do so in South Bay United Pentecostal Church v. Newsom. Justice Gorsuch issued a separate statement asserting that the Court had “made it abundantly clear” in Roman Catholic Diocese that “edicts like California’s fail strict scrutiny and violate the Constitution. . . . Today’s order should have been needless; the lower courts in these cases should have followed the extensive guidance this Court already gave.”

Tandon’s journey from the district court to the Supreme Court two months later shows that a number of judges in the Ninth Circuit still have difficulty following precedent, even when justices express their exasperation. Unfortunately, Koh’s shoddy analysis gives us reason to believe that she would add to that trend if she were elevated to the appeals court.

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