Applicants are likely to succeed on the merits of their free exercise claim; they are irreparably harmed by the loss of free exercise rights “for even minimal periods of time…”

This language seems to emphasize the “supremacy” of free exercise claims in the view of the five-Justice majority. This may be why CJ Roberts chose to not join the majority, as it goes against his incrementalist approach to developing new Court precedent. I predict the five Justices in the majority will return to this sentence in future cases on a host of religious freedom matters that are currently the subject of litigation around the country, many of which involve clashes between the constitutionally grounded religious free exercise right, and statutorily based “civil rights.” //

First, this was not a decision on the “merits” of the case now pending in the Ninth Circuit. What was under Supreme Court review was the refusal by the Ninth Circuit to grant an injunction against enforcement of the California restrictions while the case is pending before the Ninth Circuit. The question was whether California would be allowed to enforce the restrictions in place while it defended the case on appeal after the restriction had been upheld by a district court judge in San Jose. The Ninth Circuit had declined to issue an injunction while the matter was being reviewed, and late on Friday the Supreme Court reversed that decision and ordered that the injunction be issued while the matter is pending review. //

The Ninth Circuit panel looked at the prior decisions of SCOTUS which evaluated similar gathering venues and allowed occupancy under other types of regulations — churches v. shopping venues — and concluded its task was to compare the impact of the California restriction on in-home religious activities with the impact on in-home non-religious activities. Since both were similarly burdened by the California restriction — unlike the churches v. shopping venues in earlier SCOTUS decisions which were unequally burdened — the Ninth Circuit concluded the restrictions on in-home services would survive constitutional scrutiny.

But this approach failed to give sufficient importance to the constitutional foundation of religious free exercise. It’s not that the Ninth Circuit was defending California’s restriction, the Ninth Circuit simply drew the wrong conclusion from prior SCOTUS’s orders as to what analytic framework it should employ. In some respects this is a product of the fact that the Supreme Court has developed this body of law via the “shadow docket” and not in one comprehensive majority opinion on the issues being decided.