April 10, 2021

Justice Kagan makes a watermelon wisecrack: "[T]he law does not require that the State equally treat apples and watermelons."

That's from the dissenting opinion in Tandon v. Newsom, which came out just last night. 

I'm amazed to see the gratuitous insertion of watermelon in a Supreme Court case. It's a play on the old "apples and oranges" expression generally used to assert that things are too different to compare to each other. To switch from oranges to watermelons is to say these 2 things are ludicrously different, because watermelons are even more different from apples than oranges are. They're so large. 

It's not hard to get the idea, just as it was not hard to get what Joe Biden meant when he said "This makes Jim Crow look like Jim Eagle." Eagles are bigger than crows. Watermelons are bigger than oranges. But Biden was talking about something he wanted to portray as racial — the new Georgia voting law. The Tandon v. Newsom case is not about race but religion: Did California discriminate against religion when it banned religious gatherings in private homes? The question depends on how California treated other gatherings. Did it treat like gatherings alike?

From the majority opinion:

This is the fifth time the Court has summarily rejected the Ninth Circuit’s analysis of California’s COVID restrictions on religious exercise. It is unsurprising that such litigants are entitled to relief. California’s Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further 'interests of the highest order' by means 'narrowly tailored in pursuit of those interests.' That standard 'is not watered down'; it 'really means what it says.'

Kagan's point is that all those exceptions were for activities that were not comparable — they were the apples in comparison to which the private-home religious meetings were watermelons. In that view, no strict scrutiny is needed, because there's no discrimination in seeing apples as apples and watermelons as watermelons. 

Is the fruit analogy helpful? Is the watermelon joke worthwhile? If race were anywhere in the picture, the mention of watermelon would provoke outrage. But the sensitive topic here is religion, not race. Nevertheless, I would have thought that racial sensitivity is so great that you'd never mention watermelon in a court case unless there were actual watermelons in the facts of the case.

Here's the NYT article by Adam Liptak, "By 5-4 Vote, Supreme Court Lifts Restrictions on Prayer Meetings in Homes/The court shifted direction in cases on Covid-related limits on religious services after Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg." 

The Supreme Court late Friday night lifted California’s restrictions on religious gatherings in private homes, saying they could not be enforced to bar prayer meetings, Bible study classes and the like.... The majority said California had violated the Constitution by disfavoring prayer meetings. 
“California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts and indoor restaurants,” the opinion said....
In dissent, Justice Elena Kagan, joined by Justices Stephen G. Breyer and Sonia Sotomayor, said the majority had compared in-home prayer meetings with the wrong kinds of activities.


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