Ritesh Tandon v. Gavin Newsom ; Xavier Becerra; Sandra Shewry; Erica Pan ; Jeffrey V. Smith; Sara H. Cody

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RITESH TANDON ; KAREN BUSCH;
TERRY G ANNON ; CAROLYN GANNON ;
J EREMY W ONG; J ULIE EVARKIOU ;
DHRUV KHANNA; CONNIE RICHARDS ;
FRANCES BEAUDET ; M AYA
M ANSOUR,
Plaintiffs-Appellants,
v.
GAVIN NEWSOM ; XAVIER BECERRA;
SANDRA SHEWRY; ERICA PAN ;
J EFFREY V. SMITH; SARA H. CODY,
Defendants-Appellees.
No. 21-15228
D.C. No.
5:20-cv-07108-
LHK
ORDER
Filed March 30, 2021
Before: MILAN D. SMITH, JR., BRIDGET S. BADE, and
PATRICK J. BUMATAY, Circuit Judges.
Order;
Partial Concurrence and Partial Dissent by Judge Bumatay

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SUMMARY*
Civil Rights
The panel denied appellants’ motion for an emergency
injunction pending appeal, seeking to prohibit the
enforcement of California’s Covid-19 restrictions on private
gatherings and various limitations on businesses as applied
to appellants’ in-home Bible studies, political activities, and
business operations.
The panel concluded that appellants had not satisfied the
requirements for the extraordinary remedy of an injunction
pending appeal. Specifically, the panel held that appellants
had not demonstrated a likelihood of success on the merits
for their free exercise, due process, or equal protection
claims, nor had they demonstrated that injunctive relief was
necessary for their free speech claims.
In their emergency motion, appellants Pastor Jeremy
Wong and Karen Busch asserted that the gatherings
restrictions violated their right to free exercise of religion
because the restrictions prevented them from holding in-
home Bible studies and communal worship with more than
three households in attendance. Appellants Ritesh Tandon
and Terry and Carolyn Gannon argued that the gatherings
restrictions violated their First Amendment rights to freedom
of speech and assembly. Tandon was a candidate for the
United States Congress in 2020 and plans to run again in
2022, and he claimed that the gatherings restrictions
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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TANDON V . NEWSOM 3
prevented him from holding in-person campaign events and
fundraisers. The Gannons asserted that the restrictions
prohibited them from hosting forums on public affairs at
their home. Finally, the business owner appellants argued
that the gatherings restrictions, capacity limitations, and
other regulations on their businesses violated their
Fourteenth Amendment substantive due process and equal
protection rights.
Addressing the free exercise claim, the panel rejected the
argument that pursuant to the reasoning of Roman Catholic
Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per
curiam), South Bay United Pentecostal Church v. Newsom,
141 S. Ct. 716 (2021), and Gateway City Church v. Newsom,
__ S. Ct. __, 2021 WL 753575 (Feb. 26, 2021), the
gatherings restrictions at issue were underinclusive because
the State applied different restrictions to commercial activity
in public buildings. The panel concluded that from its
review of these recent Supreme Court decisions, appellants
were making the wrong comparison because the record did
not support that private religious gatherings in homes were
comparable—in terms of risk to public health or reasonable
safety measures to address that risk—to commercial
activities, or even to religious activities, in public buildings.
Appellants had not disputed the district court’s findings that
the State reasonably concluded that when people gather in
social settings, their interactions are likely to be longer than
they would be in a commercial setting; that participants in a
social gathering are more likely to be involved in prolonged
conversations; that private houses are typically smaller and
less ventilated than commercial establishments; and that
social distancing and mask-wearing were less likely in
private settings and enforcement was more difficult.
Appellants had not shown that gatherings in private homes
and public businesses similarly threaten the government’s

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4 TANDON V . NEWSOM
interest, and therefore they had not shown that strict scrutiny
applied. The panel further held that when compared to
analogous secular in-home private gatherings, the State’s
restrictions on in-home private religious gatherings were
neutral and generally applicable and, thus, subject to rational
basis review.
The panel denied as unnecessary appellants Tandon and
the Gannons’ request for an injunction on the claims that the
gatherings restrictions violated their First Amendment rights
to freedom of speech and assembly. The panel held that
based on the district court’s unchallenged ruling, the State’s
gatherings restrictions did not apply to Tandon’s requested
political activities. Moreover, given the State’s failure to
define rallies or distinguish Tandon’s political activities
from the Gannons’ political activities, the panel concluded
that, on the record before it, the State’s restrictions did not
apply to the Gannons’ political activities. Therefore,
appellants had not established that an injunction was
necessary, and the panel denied as moot the emergency
motion for injunctive relief on these claims.
The panel concluded that the business owner appellants
had not established a likelihood of success on their argument
that the gatherings restrictions, capacity limitations, and
other regulations on their businesses violated their
Fourteenth Amendment substantive due process and equal
protection rights. The panel stated that this court has never
held that the right to pursue work is a fundamental right, and,
as such, the district court likely did not err in applying
rational basis review to appellants’ due process claims.
Likewise, business owners are not a suspect class, and the
district court correctly applied rational basis review to their
equal protection claims.

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Dissenting in part and concurring in part, Judge Bumatay
stated that he agreed with the majority that (1) an injunction
was unnecessary on appellants’ free speech and assembly
claims since California’s gatherings restrictions did not
apply to their political activities, and (2) appellants had not
demonstrated that the State’s commercial restrictions
violated due process or equal protection. But Judge
Bumatay would hold that California had clearly infringed on
appellants Wong and Busch’s free exercise rights.
Accordingly, he would grant their requested injunction
pending appeal of their religious freedom claim. Judge
Bumatay wrote that when it comes to Free Exercise
challenges to COVID-19 restrictions, the court was no
longer writing on a blank slate. Cumulatively, the message
from the Supreme Court has been clear: States may not
disfavor religious activity in responding to the pandemic.
Judge Bumatay stated that based on the legal background,
California’s gatherings restriction as applied to in-home
worship and Bible study was subject to strict scrutiny, and
the State had not sustained its burden to prove the household
limitations were narrowly tailored.
COUNSEL
Robert E. Dunn and John D. Tripoli, Eimer Stahl LLP, San
Jose, California; Ryan J. Walsh, John K. Adams, and Amy
C. Miller, Eimer Stahl LLP, Madison, Wisconsin; for
Plaintiffs-Appellants.
Xavier Becerra, Attorney General; Office of the Attorney
General; Thomas S. Patterson, Senior Assistant Attorney
General; Mark R. Beckington, Supervising Deputy Attorney
General; Lara Haddad, Deputy Attorney General; Los
Angeles, California; for Defendants-Appellees.

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ORDER
This appeal challenges the district court’s February 5,
2021 order denying Appellants’ motion for a preliminary
injunction. Appellants now move for an emergency
injunction pending appeal, seeking to prohibit the
enforcement of California’s restrictions on private
“gatherings” and various limitations on businesses as
applied to Appellants’ in-home Bible studies, political
activities, and business operations. We conclude that the
Appellants have not satisfied the requirements for the
extraordinary remedy of an injunction pending appeal. See
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)
(“[I]njunctive relief [is] an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is
entitled to such relief.”). Therefore, we deny the emergency
motion.
I.
A.
In the district court, Appellants challenged the State’s
and Santa Clara County’s restrictions on private
“gatherings.” However, in this motion, Appellants limit
their challenges to the State’s restrictions.1 These
1 The State restrictions assign counties to different tiers based on
factors such as adjusted COVID-19 case rates, positivity rates, a health
equity metric, and vaccination rates. See Cal. Dep’t of Pub. Health,
Blueprint for a Safer Economy, https://covid19.ca.gov/safer-
economy/#tier-assignments (last visited Mar. 30, 2021). These tiers are
assigned number and color designations in descending order of risk:
Widespread (Tier 1 or purple); Substantial (Tier 2 or red); Moderate
(Tier 3 or orange); and Minimal (Tier 4 or yellow). See id. Appellants
reside in Santa Clara County, which is currently a Tier 2 county.

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restrictions “appl[y] to private gatherings, and all other
gatherings not covered by existing sector guidance are
prohibited.” Cal. Dep’t of Pub. Health, Guidance for the
Prevention of COVID-19 Transmission for Gatherings,
https://cdph.ca.gov/programs/cid/dcdc/pages/covid-19/guid
ance-for-the-prevention-of-covid-19-transmission-for-gathe
rings-november-2020.aspx (last visited Mar. 30, 2021).
“Gatherings are defined as social situations that bring
together people from different households at the same time
in a single space or place.” Id. Under these restrictions,
indoor and outdoor gatherings are limited to three
households, but indoor gatherings are prohibited in Tier 1
and “strongly discouraged” in the remaining tiers. Id. The
gatherings restrictions also limit gatherings in public parks
or other outdoor spaces to three households. Id. A gathering
must be in a space that is “large enough” to allow physical
distancing of six feet, should be two hours or less in duration,
and attendees must wear face coverings. Id. Finally,
singing, chanting, shouting, cheering, and similar activities
are allowed at outdoor gatherings with restrictions, but
singing and chanting are not allowed at indoor gatherings.
Id.
Appellants assert that the State’s gatherings restrictions
provide exemptions, which allow outdoor gatherings with
social distancing, political protests and rallies, worship
services, and cultural events such as weddings and funerals.
Therefore, we also consider the restrictions that apply to
these events. Under the State’s restrictions, outdoor services
with social distancing are allowed at houses of worship, such
as churches, mosques, temples, and synagogues. About
COVID-19 Restrictions, https://covid19.ca.gov/stay-home-
except-for-essential-needs (under “Can I Go to Church” tab)
(last visited Mar. 30, 2021). Indoor services at houses of
worship are subject to capacity restrictions (25% of capacity

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in Tier 1 and 2 counties, and 50% of capacity in Tier 3 and
4 counties), and other safety modifications including face
coverings, COVID-19 prevention training, social distancing,
cleaning and disinfection protocols, and restrictions on
singing and chanting. Id.; see also Industry Guidance to
Reduce Risk, https://covid19.ca.gov/industry-
guidance#worship (under “Places of worship and cultural
ceremonies—updated February 22, 2021” tab) (last visited
Mar. 30, 2021).
The restrictions for houses of worship also apply to
cultural ceremonies such as funerals and wedding
ceremonies. About COVID-19 Restrictions, https://covid19.
ca.gov/stay-home-except-for-essential-needs/ (under “Are
weddings allowed?” tab) (last visited Mar. 30, 2021).
However, wedding receptions are subject to the gatherings
restrictions, so in Tier 1 receptions must take place outdoors
and are limited to three households, while outdoor or indoor
receptions, limited to three households, are allowed in the
other tiers. Id.
“[S]tate public health directives do not prohibit in-person
outdoor protests and rallies” with social distancing and face
coverings. Id. (under “Can I engage in political rallies and
protest gatherings?” tab) (emphasis in original). The terms
“protests” and “rallies” are not defined,2 but the guidance
states that “Local Health Officers are advised to consider
appropriate limitations on outdoor attendance capacities,”
and that failure to follow the social distancing restrictions
and to wear face coverings “may result in an order to
2 One dictionary defines a “rally” as “a mass meeting intending to
arouse group enthusiasm.” See Rally, M ERRIAM-W EBSTER ,
https://www.merriam-webster.com/dictionary/rally (last visited Mar. 30,
2021).

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TANDON V . NEWSOM 9
disperse or other enforcement action.” Id. Indoor protests
and rallies are not allowed in Tier 1 counties but are allowed
in other counties subject to the capacity restrictions for
places of worship, social distancing, face covering
requirements, and prohibitions on singing and chanting. Id.
B.
Appellants challenge the restrictions on three grounds.
First, Appellants Pastor Jeremy Wong and Karen Busch
argue that the gatherings restrictions violate their right to
free exercise of religion because they prevent them from
holding in-home Bible studies and communal worship with
more than three households in attendance. Second,
Appellants Ritesh Tandon and Terry and Carolyn Gannon
argue that the gatherings restrictions violate their First
Amendment rights to freedom of speech and assembly.
Tandon was a candidate for the United States Congress in
2020 and plans to run again in 2022, and he claims that the
gatherings restrictions prevent him from holding in-person
campaign events and fundraisers. The Gannons assert that
the restrictions prohibit them from hosting forums on public
affairs at their home. Finally, the business owner Appellants
argue that the gatherings restriction, capacity limitations,
and other regulations on their businesses violate their
Fourteenth Amendment substantive due process and equal
protection rights.
C.
In determining whether to grant an injunction pending
appeal, we apply the test for preliminary injunctions. Se.
Alaska Conservation Council v. U.S. Army Corps of Eng’rs,
472 F.3d 1097, 1100 (9th Cir. 2006). “A plaintiff seeking a
preliminary injunction must establish that he is likely to
succeed on the merits, that he is likely to suffer irreparable

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harm in the absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in the
public interest.” Winter, 555 U.S. at 20.
II.
A.
We first address Appellants’ free exercise claim. The
district court denied Appellants’ motion for a preliminary
injunction because it concluded that California’s private
gatherings restrictions are neutral and generally applicable,
and rationally related to a legitimate government interest.
Tandon v. Newsom, No. 20-CV-07108-LHK, 2021 WL
411375, at *38 (N.D. Cal. Feb. 5, 2021). Alternatively, the
district court concluded that the restrictions would satisfy
strict scrutiny. Id. Appellants argue that the district court
erred in applying rational basis review, that the restrictions
do not meet the heightened standard of strict scrutiny, and
that we should therefore issue an injunction pending appeal.3
Specifically, Appellants assert that the Supreme Court’s
decisions in Gateway City Church v. Newsom, __ S. Ct. __,
2021 WL 753575 (Feb. 26, 2021), South Bay United
Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021)
(South Bay II), and Roman Catholic Diocese of Brooklyn v.
3 Appellants do not argue that the State’s restrictions on gatherings
would fail rational basis review. Under that deferential standard,
regulations “must be upheld . . . if there is any reasonably conceivable
state of facts that could provide a rational basis for the classification.”
Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting F.C.C. v. Beach
Commc’ns, Inc., 508 U.S. 307, 313 (1993)). In contrast, under strict
scrutiny, the regulations “must be ‘narrowly tailored’ to serve a
‘compelling’ state interest.” Roman Catholic Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam) (quoting Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)).

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TANDON V . NEWSOM 11
Cuomo, 141 S. Ct. 63 (2020) (per curiam), establish that the
restrictions at issue are not “neutral and generally
applicable” and thus strict scrutiny applies.4 In these cases,
the Court addressed free exercise challenges to COVID-19-
based capacity limitations at public places of worship that
were more prohibitive than capacity limitations at
comparable businesses. See Gateway, __ S. Ct. __, 2021
WL 753575; South Bay II, 141 S. Ct. 716; Roman Catholic
Diocese, 141 S. Ct. 63.
Appellants further argue that the State’s current
restrictions on in-home or private religious gatherings fail
strict scrutiny because they do not apply to “a host of
4 The parties do not discuss, or even cite, the Supreme Court’s recent
decisions in Harvest Rock Church v. Newsom, ___ S. Ct. ___, No.
20A137, 2021 WL 406257 (Feb. 5, 2021) (per curiam), and Harvest
Rock Church v. Newsom, 141 S. Ct. 889 (2020) (mem.). In the first of
these two decisions in the same case, without elaboration, the Court
treated an application for injunctive relief as a petition for writ of
certiorari before judgment and granted the petition, vacated the district
court’s judgment, and remanded to this court to remand to the district
court for “further consideration in light of” Roman Catholic Diocese.
141 S. Ct. 889.
In the second decision, the Court considered the same prohibitions
on indoor services at house of worship that were at issue in Gateway,
2021 WL 3086060, at *4, and South Bay II, 141 S. Ct. at 716, and granted
an application for injunctive relief pending appeal and enjoined the State
from enforcing the Tier 1 prohibition on indoor worship services but
denied the application with respect to the percentage capacity limitations
and the singing and chanting restrictions during indoor services. 2021
WL 406257 at *1. While some Justices noted that they would have
granted the application for injunctive relief in full and other Justices
noted that they dissented, those Justices only referenced their statements
in South Bay II. See id. Thus, Harvest Rock does not substantively add
to the body of case law informing our analysis, as our dissenting
colleague apparently agrees. See Dissent at 38 (noting that “Roman
Catholic Diocese, South Bay [II], and Gateway City Church instruct us”).

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comparable secular activities,” such as entering crowded
train stations, airports, malls, salons, and retail stores,
waiting in long check-out lines, and riding on buses. Thus,
Appellants argue that the State’s gatherings restriction is
underinclusive because it does not “include in its prohibition
substantial, comparable secular conduct that would similarly
threaten the government’s interest.” Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1079 (9th Cir. 2015).
But as we explain below, from our review of these recent
Supreme Court decisions, we conclude that Appellants are
making the wrong comparison because the record does not
support that private religious gatherings in homes are
comparable—in terms of risk to public health or reasonable
safety measures to address that risk—to commercial
activities, or even to religious activities, in public buildings.
When compared to analogous secular in-home private
gatherings, the State’s restrictions on in-home private
religious gatherings are neutral and generally applicable and,
thus, subject to rational basis review. See Church of the
Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,
531 (1993) (holding that “a law that is neutral and of general
applicability . . . even if the law has the incidental effect of
burdening a particular religious practice” must only survive
rational basis review). Therefore, we conclude that
Appellants have not established a likelihood of success on
the merits. See Winter, 555 U.S. at 20.
B.
As Appellants argue, three recent Supreme Court
decisions addressing free exercise challenges to COVID-19
restrictions are relevant to our analysis. First, in Roman
Catholic Diocese, the Court held that New York’s COVID-
19 restrictions triggered strict scrutiny because “[t]he
applicants . . . made a strong showing that the challenged

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TANDON V . NEWSOM 13
restrictions violate ‘the minimum requirement of neutrality’
to religion.” 141 S. Ct. at 66 (quoting Lukumi, 508 U.S.
at 533). The Court wrote that “the regulations cannot be
viewed as neutral because they single out houses of worship
for especially harsh treatment.” Id.
As proof of this “especially harsh treatment,” the Court
pointed out that “while a synagogue or church may not admit
more than 10 persons, businesses categorized as ‘essential’
may admit as many people as they wish,” and that those
“essential businesses” included “acupuncture facilities,
camp grounds, garages, as well as . . . all plants
manufacturing chemicals and microelectronics and all
transportation facilities.” Id.; see also id. at 69 (Gorsuch, J.,
concurring) (“People may gather inside for extended periods
in bus stations and airports, in laundromats and banks, in
hardware stores and liquor shops. No apparent reason exists
why people may not gather, subject to identical restrictions,
in churches or synagogues . . . .”). Because “a large store in
Brooklyn . . . could ‘literally have hundreds of people
shopping there on any given day,’” but “a nearby church or
synagogue would be prohibited from allowing more than
10 or 25 people inside for a worship service,” the restrictions
were not neutral or generally applicable. Id. at 67 (citation
omitted). The Court further held that the restrictions did not
pass strict scrutiny. Id.
Then, in South Bay II, the Court reviewed California’s
Tier 1 restrictions, which included a total “prohibition on
indoor worship services,” and enjoined enforcement of this
restriction. 141 S. Ct. at 716. Justice Gorsuch, joined by

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Justices Thomas and Alito, and with whom Justices
Kavanaugh and Barrett agreed,5 wrote:
California has openly imposed more stringent
regulations on religious institutions than on
many businesses. The State’s spreadsheet
summarizing its pandemic rules even assigns
places of worship their own row. [For the
Tier 1 regulations] applicable [at that time] in
most of the State, California forbids any kind
of indoor worship. Meanwhile, the State
allows most retail operations to proceed
indoors with 25% occupancy, and other
businesses operate at 50% occupancy or
more. Apparently, California is the only
State in the country that has gone so far to ban
all indoor religious services.
Id. at 717 (Statement of Gorsuch, J.) (citations omitted).
Justice Gorsuch also compared indoor religious services to
the “scores [that] might pack into train stations or wait in
long checkout lines in the businesses the State allows to
remain open.” Id. at 718. And he questioned California’s
arguments about close physical proximity, even as it allowed
certain businesses to permit closer physical interactions. Id.
at 718–19.
Finally, the Court addressed Santa Clara County’s
restrictions in Gateway, __ S. Ct. __, 2021 WL 753575.
Santa Clara County had enacted a restriction that
5 Justice Barrett did not join Justice Gorsuch’s statement, but she
“agree[d] with [that] statement, save” one issue not relevant to this
appeal. South Bay II, 141 S. Ct. at 717 (Barrett, J., joined by Kavanaugh,
J., concurring in the partial grant of application for injunctive relief).

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TANDON V . NEWSOM 15
“[p]rohibited” all indoor gatherings. As examples, Santa
Clara County listed “political events, weddings, funerals,
worship services, movie showings, [and] cardroom
operations.” But the county imposed different restrictions
for “a number of businesses and activity types, including
retail stores,” which were allowed to operate at 20% capacity
indoors. Gateway City Church v. Newsom, No. 20-08241,
2021 WL 308606, at *4 (N.D. Cal. Jan. 29, 2021). Our court
affirmed the district court’s ruling and held that this
regulation, which restricted indoor gatherings in “places of
worship,” “applie[d] equally to all indoor gatherings of any
kind or type, whether public or private, religious or secular”
because it did “not ‘single out houses of worship’ for worse
treatment than secular activities.” Gateway City Church v.
Newsom, 2021 WL 781981, at *1 (9th Cir. Feb. 12, 2021)
(quoting Roman Catholic Diocese, 141 S. Ct. at 66). The
Court rejected this reasoning, stating: “The Ninth Circuit’s
failure to grant relief was erroneous. This outcome is clearly
dictated by [the] Court’s decision in” South Bay II.
Gateway, 2021 WL 753575, at *1.
C.
Reviewing this precedent, we conclude that the
regulations at issue in Gateway and South Bay II, which
applied total bans on indoor services at houses of worship,
differ significantly from those at issue in this case. The
gatherings restrictions at issue here do not impose a total ban
on all indoor religious services, but instead limit private
indoor and outdoor gatherings to three households. There is
no indication that the State is applying the restrictions to in-
home private religious gatherings any differently than to in-
home private secular gatherings.
“[I]f the object of a law is to infringe upon or restrict
practices because of their religious motivation, the law is not

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neutral.” Lukumi, 508 U.S. at 533. But here, the gatherings
restrictions apply equally to private religious and private
secular gatherings, and there is no indication, or claim, of
animus toward religious gatherings. The restrictions do not
list examples of prohibited gatherings or single out religious
gatherings. See Blueprint for a Safer Economy,
https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20
Document%20Library/COVID-19/Dimmer-Framework-Se
ptember_2020.pdf (last visited Mar. 30, 2021). Thus, the
gatherings restrictions are neutral on their face. See Lukumi,
508 U.S. at 533 (holding that for a law that burdens religious
practice to be neutral, it must at least be neutral on its face).
However, “[f]acial neutrality is not determinative.” Id.
at 534.6 Instead, we must also “survey meticulously the
circumstances of governmental categories” to determine
whether there are “subtle departures from neutrality” or
“religious gerrymander[ing],” which could indicate that the
object of the law is to restrict religious practices. Id.
(citations and internal quotation marks omitted). Here,
Appellants have not asserted that the object of the gatherings
restrictions is to restrict religious practices, and there is no
indication that the restrictions were adopted for
discriminatory purposes instead of addressing public health
concerns.
6 Thus, we agree with our dissenting colleague that “the fact that a
restriction is itself phrased without reference to religion is not
dispositive.” Dissent at 37. However, we note that, unlike in South Bay
II, where California’s “spreadsheet summarizing its pandemic rules even
assign[ed] places of worship their own row,” 141 S. Ct. at 717 (Statement
of Gorsuch, J.), the gatherings restrictions here never mention religion.
See also Agudath Israel of Am. v. Cuomo, 979 F.3d 177, 182 (2d Cir.
2020) (Park, J., dissenting) (“In each zone, the order subjects only
‘houses of worship’ to special ‘capacity limit[s].’”).

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TANDON V . NEWSOM 17
Accordingly, we must consider whether the regulations
nonetheless “treat[] religious observers unequally,” and thus
are not laws of general applicability. See Parents for
Privacy v. Barr, 949 F.3d 1210, 1235 (9th Cir. 2020). One
way to assess whether a law is selectively applicable is to
determine whether the law’s restrictions “substantially
underinclude non-religiously motivated conduct that might
endanger the same governmental interest that the law is
designed to protect.” Stormans, 794 F.3d at 1079 (citing
Lukumi, 508 U.S. at 542–46). “In other words, if a law
pursues the government’s interest ‘only against conduct
motivated by religious belief’ but fails to include in its
prohibitions substantial, comparable secular conduct that
would similarly threaten the government’s interest, then the
law is not generally applicable.” Id. (quoting Lukumi,
508 U.S. at 545).
Appellants argue that pursuant to the reasoning of
Roman Catholic Diocese, South Bay II, and Gateway, the
gatherings restrictions at issue in this case are underinclusive
because the State applies different restrictions to commercial
activity in public buildings. Appellants compare the
restrictions on private gatherings to the restrictions on
commercial activities in public buildings, such as train
stations, malls, salons, and airports. But in Roman Catholic
Diocese, South Bay II, and Gateway, the Court did not make
similar comparisons. Instead, in each case in which the
Supreme Court compared religious activity to commercial
activity, it did so in the context of comparing public-facing
houses of worship to public-facing businesses.7
7 The dissent argues that “when California allows greater freedoms
for some sectors, it may not leave religious activities behind” and that
“the suppression of some comparable secular activity in a similar fashion

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Because we identify the comparison applied in these
cases—houses of worship compared to secular businesses—
our dissenting colleague suggests that we are holding that
First Amendment free exercise rights apply only in houses
of worship. Dissent at 45. He misses the point. We note
that in these cases the Supreme Court addressed restrictions
on houses of worship—not because we are suggesting that
the Constitution’s protections for the free exercise of religion
apply only in houses of worship—but rather because the
Court’s precedent directs us to compare restrictions on
religious activities to restrictions on “analogous” secular
activities. See Lukumi, 508 U.S. at 546. In its recent
decisions, the Supreme Court held that restrictions subjected
worship services to disparate treatment because the settings
at issue were similar and subject to meaningful
comparisons—houses of worship such as churches,
mosques, synagogues, and temples compared to public
buildings for commercial activities such as stores, malls, and
other businesses.
The dissent’s argument that “businesses are analogous
comparators to religious practice in the pandemic context,”
Dissent at 37, oversimplifies the issue here. Although the
to religious activity is not dispositive.” Dissent at 42, 47 (citing Roman
Catholic Diocese, 141 S. Ct. at 73 (Kavanagh, J., concurring). Although
Justice Kavanaugh’s concurrence in Roman Catholic Diocese is not the
controlling opinion, the dissent mischaracterizes that opinion. Justice
Kavanaugh wrote that “under [the Supreme] Court’s precedents, it does
not suffice for a State to point out that, as compared to houses of worship,
some secular businesses are subject to similarly severe or even more
severe restrictions.” Roman Catholic Diocese, 141 S. Ct. at 73
(Kavanaugh, J., concurring) (some emphasis added). Thus, Justice
Kavanaugh, in line with the controlling opinions and orders in Roman
Catholic Diocese, South Bay II, and Gateway, compared businesses only
to houses of worship, not to all religious activities.

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TANDON V . NEWSOM 19
Supreme Court has compared regulation of religious
activities to regulation of business activities under
comparable circumstances, it has never framed its analysis
in the general terms of “religious practice” and “businesses.”
Rather, it has focused on the circumstances surrounding the
regulated religious activities to determine whether those
particular classes of religious activity were being treated less
favorably than comparable classes of secular activity. Thus,
it was essential in the recent Supreme Court decisions that
the regulations in question implicated religious activity in
houses of worship. See South Bay, 141 S. Ct. at 717
(Roberts, C.J., concurring) (“[T]he State’s present
determination—that the maximum number of adherents who
can safely worship in the most cavernous cathedral is zero—
appears to reflect not expertise or discretion, but instead
insufficient appreciation or consideration of the interests at
stake.”); Roman Catholic Diocese, 141 S. Ct. at 67
(analyzing regulations that “single out houses of worship for
especially harsh treatment” and noting that “the maximum
attendance at a religious service could be tied to the size of
the church or synagogue”).
Moreover, when the Court granted injunctive relief as to
gathering restrictions in South Bay and Harvest Rock, it did
not issue a blanket injunction covering all state regulation of
“religious practice.” Instead, it distinguished between
restrictions on operating houses of worship—which were
impermissible under the circumstances—and capacity
limitations and restrictions on “indoor singing and
chanting,” which it declined to enjoin because the plaintiffs
had not carried their burden (at least at that stage of the
proceedings) of showing “that the State is not applying the
. . . prohibition . . . in a generally applicable manner.”
Harvest Rock Church v. Newsom, No. 20A137, __ S. Ct. __,
2021 WL 406257, at *1 (Feb. 5, 2021); South Bay, 141 S.

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20 TANDON V . NEWSOM
Ct. at 716 (“This order is without prejudice to the appellants
presenting new evidence to the District Court that the State
is not applying the percentage capacity limitations or the
prohibition on singing and chanting in a generally applicable
manner.”).
By taking this approach, we absolutely do not “confine
religious freedom to ‘free exercise zones,’” Dissent at 45, as
the dissent suggests. We simply recognize that the Supreme
Court’s free exercise analysis—which first requires
determining which tier of scrutiny to apply—fundamentally
turns on whether a state discriminates against religious
practice. In turn, to determine whether a state discriminates,
the Supreme Court instructs us to compare “analogous non-
religious conduct,” Lukumi, 508 U.S. at 546 (emphasis
added), not to compare all non-religious conduct. See also
Roman Catholic Diocese, 141 S. Ct. at 69 (Gorsuch, J.,
concurring) (noting that the First “Amendment prohibits
government officials from treating religious exercises worse
than comparable secular activities, unless they are pursuing
a compelling interest and using the least restrictive means
available.” (emphasis added)); Stormans, 794 F.3d at 1079
(describing how Lukumi requires analyzing “prohibitions on
substantial, comparable secular conduct that would similarly
threaten the government’s interest” (emphasis added)).
An analogy requires “[a] corresponding similarity or
likeness.” Analogy, Black’s Law Dictionary (11th ed. 2019).
Thus, we cannot answer the question of whether the state
discriminates without first framing the correct comparison.
And not every activity is analogous to every other activity.
That would empty all meaning from the word “analogy.”
Unsurprisingly, then, this analysis depends on the type,
location, and circumstances of the regulated activities.

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TANDON V . NEWSOM 21
Here, Appellants’ underinclusivity argument relies on a
comparison of gatherings in private homes to commercial
activity in public buildings, and in particular they point to
commercial activity in large buildings such as train stations,
airports, and shopping malls.8 But nothing in the record
supports Appellants’ suggestions that these commercial
activities are proper comparators to in-home private
religious gatherings. Instead, it appears Appellants are
arguing that we should reach the conclusion the Supreme
Court rejected when it did not enjoin capacity limitations and
singing restrictions in houses of worship: that any
restrictions that have an incidental effect on religious
conduct can be appropriately compared to restrictions on any
secular conduct.
Based on the record, the district court concluded that the
State reasonably distinguishes in-home private gatherings
from the commercial activity Appellants assert is
comparable. For example, the district court found that the
State reasonably concluded that when people gather in social
settings, their interactions are likely to be longer than they
would be in a commercial setting; that participants in a social
gathering are more likely to be involved in prolonged
conversations; that private houses are typically smaller and
less ventilated than commercial establishments; and that
social distancing and mask-wearing are less likely in private
settings and enforcement is more difficult. Tandon, 2021
WL 411375, at *30. Appellants do not dispute any of these
findings. Therefore, we conclude that Appellants have not
8 Appellants also mention salons in a laundry list of indoor
commercial activities that are not limited to three households. But
Appellants do not explain why salons should be considered analogous
secular conduct and they point to nothing in the record to support that
comparison.

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22 TANDON V . NEWSOM
established that strict scrutiny applies to the gatherings
restrictions. Appellants do not contend that the State’s
restrictions fail rational basis review, and we agree with the
district court that the capacity restrictions likely meet that
low bar. See id. at *40. Therefore, Appellants have not
shown a likelihood of success on the merits of the free
exercise claim.
D.
Our dissenting colleague apparently agrees with
Appellants’ argument that broadly compares private
religious gatherings to secular or commercial activity,
although unlike Appellants he focuses on the comparison to
small businesses, such as barbershops and tattoo parlors.
These small businesses are not subject to the three-
household restriction for private gatherings or the capacity
restrictions that apply to other businesses and to houses of
worship. See Cal. Dep’t of Pub. Health, Blueprint for a Safer
Economy, https://covid19.ca.gov/safer-economy/#tier-
assignments (last visited Mar. 30, 2021).
Nonetheless, the State requires that these small
businesses implement extensive safety protocols, explained
in a fourteen-page, single-spaced document, which
incorporates the Guidance on Face Coverings and therefore
“requires the use of face coverings for both members of the
public and workers in all public and workplace settings.”
See COVID-19 Industry Guidance: Expanded Personal
Care Services, at 3 (Oct. 20, 2020), https://files.covid19.c
a.gov/pdf/guidance-expanded-personal-care-services--en.p
df. Among other things, the Industry Guidance also
requires that such businesses:

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TANDON V . NEWSOM 23
• “Establish a written workplace-specific
COVID-19 prevention plan,” train workers
on that plan and COVID-19 safety in general,
and “[r]egularly evaluate the workplace for
compliance with the plan.”
• “Provide temperature and/or symptom
screenings for all workers at the beginning of
their shifts.”
• “Contact customers before visits to confirm
appointments and ask if they or someone in
their household is exhibiting any COVID-19
symptoms.”
• “Tell customers that no additional friends or
family will be permitted in the facility, except
for a parent or guardian accompanying a
minor.”
• “Use hospital grade, Environmental
Protection Agency (EPA)-approved products
to clean and disinfect anything the client
came in contact with.”
• “Implement measures to ensure physical
distancing of at least six feet between and
among workers and customers, except while
providing the services that require close
contact.”
• “Maintain at least six feet of physical
distance between each work station area,
and/or use impermeable barriers between

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24 TANDON V . NEWSOM
work stations to protect customers from each
other and workers.”
• Require that “workers who consistently must
be within six feet of customers or co-workers
must wear a secondary barrier (e.g., face
shield or safety goggles) in addition to a face
covering.”
• “Stagger appointments to reduce reception
congestion and ensure adequate time for
proper cleaning and disinfection between
each customer visit.”
• “Ask customers to wait outside or in their
cars . . . [r]eception areas should only have
one customer at a time.”
Id. at 4–10. These businesses are also subject to ventilation,
cleaning, and disinfecting protocols. Id. at 7–9. The
Industry Guidance also provides additional restrictions for
specific services such as esthetic and skin care services,
electrology services, nail services, massage services, and
restrictions for body art professionals, tattoo parlors, and
piercing shops. Id. at 11–14. These restrictions, for
example, “suspend piercing and tattooing services for the
mouth/nose area,” allow “tattooing or piercing services for
only one customer at a time,” and state that “[f]acial

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TANDON V . NEWSOM 25
massages should not be performed if it requires removal of
the client’s face covering.” Id. at 14.9
These restrictions for businesses that provide personal
care services establish that there is very little basis for
comparing these businesses to private in-home religious
gatherings. For example, they refer extensively to policies
these businesses should adopt regarding “customers,”
“appointments,” and “workers,” which do not appear to
translate readily to in-home gatherings. Also, ensuring
public-facing businesses comply with these regulations is a
fundamentally different task from regulating conduct in
private homes, which government authorities cannot simply
enter at will. See, e.g., Florida v. Jardines, 569 U.S. 1, 6
(2013) (“At the [Fourth] Amendment’s very core stands the
right of a man to retreat into his own home and there be free
from unreasonable governmental intrusion.” (quotation
marks and citation omitted)). Thus, it appears that “personal
care services” are not analogous secular businesses or
appropriate comparators to private in-home religious
gatherings.
Significantly, we do not ground our conclusion on any
speculation outside the record about the circumstances in
which “personal care services” typically take place. The
9 The dissent repeatedly emphasizes tattoo parlors, see Dissent at 39,
40, 44, 47, 50, which might provide a useful rhetorical foil for in-home
Bible studies, but the parties do not cite tattoo parlors as a point of
comparison for in-home religious activities. Our dissenting colleague’s
implication is that tattoo parlors are subject to less onerous restrictions
than in-home Bible study (apparently based on his opinion that a three-
household limit is more onerous than the detailed restrictions that apply
to businesses that provide personal care services) and that they
significantly contribute to the spread of COVID-19 in California (or else
they would not be relevant comparators to in-home religious gatherings).

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26 TANDON V . NEWSOM
dissent, in contrast, does make such speculations about
personal care services. See Dissent at 38–40. We remind
our colleague, however, that Appellants bear the burden of
showing a likelihood of success on the merits to justify an
injunction pending appeal. To do so on the basis that the
regulation fails under strict scrutiny, they (not the State) bear
the further burden of showing that the regulation triggers
strict scrutiny by regulating religious activities more strictly
than comparable secular activities. See Doe v. Harris,
772 F.3d 563, 570 (9th Cir. 2014) (explaining that for a
preliminary injunction “in the First Amendment context, the
moving party bears the initial burden of making a colorable
claim that its First Amendment rights have been infringed,
or are being threatened with infringement, at which point the
burden shifts to the government to justify the restriction.”
(citation omitted)). They have failed to make that showing
here.10
E.
Our dissenting colleague also argues that the gatherings
restrictions are not neutral because they favor certain
political activities, specifically outdoor rallies and protests,
over outdoor religious activities. Dissent at 40–41.
However, he recognizes that outdoor religious activities are
allowed at houses of worship and are not limited to three
households. See About COVID-19 Restrictions,
https://covid19.ca.gov/stay-home-except-for-essential-
10 Additionally, our dissenting colleague appears to conflate the two
steps of the free exercise analysis when he argues that California’s
regulation of these businesses “is a sure sign that narrower tailoring is
possible for in-home religious practice.” Dissent at 48. We need not,
and do not, analyze whether California’s gatherings restriction is
narrowly tailored because we conclude that it does not disfavor religious
practice and therefore does not trigger strict scrutiny.

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TANDON V . NEWSOM 27
needs (under “Can I go to church?” tab) (last visited Mar. 30,
2021). Also, indoor rallies and protests are subject to the
same restrictions as public indoor religious gatherings at
houses of worship. Id. (under “Can I engage in political
rallies and protest gatherings?” tab) (explicitly applying the
restrictions for indoor services at houses of worship to
indoor rallies and protests). Therefore, in arguing that
outdoor religious and secular activities in private homes are
treated differently, it appears that the dissent assumes that
outdoor “rallies” and “protests” are allowed in backyards of
private homes. Dissent at 40–41. But this is not at all clear
from the plain language of the restrictions, which fail to
define “rallies” and “protests” and do not clearly delineate
where these events are allowed, and so the dissent’s
argument necessarily depends on assumptions and
speculation.
If we were to apply the dictionary definition of “rally,”
we could conclude that outdoor “rallies” and “protests” refer
to mass public gatherings, typically organized outside
government buildings, not private gatherings in backyards.
See Rally, Merriam-Webster, https://www.merriam-
webster.com/dictionary/rally (last visited Mar. 30, 2021).
Moreover, other language in the restrictions suggests that
rallies and protests are public political events that are treated
the same as public religious activities. For example, indoor
public religious activities and indoor rallies and protests are
subject to the same capacity, face covering, and other safety
restrictions. See About COVID-19 Restrictions,
https://covid19.ca.gov/stay-home-except-for-essential-
needs/ (under “Can I engage in political rallies and protest
gatherings?” tab) (last visited Mar. 30, 2021). In addressing
rallies and protests, the State encourages “Local Health
Officers” to consider outdoor attendance capacities, which
appears to refer to capacities in public locations, not

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28 TANDON V . NEWSOM
backyards. See id. The restrictions also state that
participants at rallies and protests “must maintain a physical
distance of at least 6 feet from any uniformed peace
officers.” Id. While it is perhaps conceivable that uniformed
peace officers would be at rallies and protests in private
backyards, this restriction certainly suggests the State is
addressing outdoor rallies and protests in public locations.
Finally, the restrictions encourage those for whom
“collective action in physical space is important” to consider
participating in protests from their cars. Id. (under “I want
to express my political views. How can I make my voice
heard without raising public health concerns?” tab). Again,
this suggests that rallies and protests would occur in public
spaces that can accommodate participation from cars, which
would seem to exclude the backyards of most private homes.
But again, we need not, and do not, rely on speculation
outside the record to determine whether Appellants have
shown that rallies and protests are comparable secular
activities. Rather, we decline to grant the “drastic and
extraordinary remedy,” Monsanto Co. v. Geertson Seed
Farms, 561 U.S. 139, 165 (2010), of emergency injunctive
relief on the speculative grounds raised by our dissenting
colleague because Appellants have failed to carry their
burden on these issues. See Winter, 555 U.S. at 22
(“[I]njunctive relief [is] an extraordinary remedy that may
only be awarded upon a clear showing that the plaintiff is
entitled to such relief.”).
Even as we deny Appellants’ motion for an injunction
pending appeal, we do so without prejudice to the possibility
that a plaintiff could conceivably prevail based on the
political activities argument that the dissent makes—
assuming, of course, that plaintiff could make the necessary
factual showings in support of those arguments. But because

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TANDON V . NEWSOM 29
these plaintiffs have not made this argument, and the State
has had no reason or opportunity to respond to them, we
decline to express an opinion on them now, let alone rely on
them to grant the extraordinary remedy of an injunction
pending appeal.11
* * *
We believe the best interpretation of Roman Catholic
Diocese, South Bay II, and Gateway is that rational basis
review should apply to the State’s gatherings restrictions
because in-home secular and religious gatherings are treated
the same, and because Appellants’ underinclusivity
argument fails as they have not provided any support for the
conclusion that private gatherings are comparable to
commercial activities in public venues in terms of threats to
public health or the safety measures that reasonably may be
implemented. Thus, Appellants have not shown that
gatherings in private homes and public businesses “similarly
threaten the government’s interest,” and therefore they have
not shown that strict scrutiny applies.
Even if our dissenting colleague’s interpretation of the
Supreme Court’s precedent is plausible, that is not enough
for Appellants to succeed at this stage of the litigation.
When a party asks for an emergency injunction pending
appeal, we ask whether that party “is likely to succeed on the
merits.” Winter, 555 U.S. at 20 (emphasis added). The facts
before us and the Supreme Court’s current case law do not
support the outcome advocated by our dissenting colleague.
11 Although our dissenting colleague writes that we “appear[] to
share [his] concerns regarding California’s exemption for political rallies
and protests, but not for religious activity,” Dissent at 48, we expressly
make no ruling pertaining to the substance of that argument.

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30 TANDON V . NEWSOM
Thus, it is inappropriate to issue an injunction based on
Appellants’ free exercise claims at this time.12
III.
We also deny as unnecessary Appellants’ request for an
injunction on their free speech and assembly claims. Tandon
seeks to host political activities such as debates, fundraisers,
and meet-the-candidate events, while the Gannons wish to
hold small-group political discussions. The district court
concluded, without explanation, that “the State’s private
gatherings restrictions do not apply to the political campaign
events Tandon wishes to hold.” Tandon, 2021 WL 411375,
at *25. Earlier, in its summary of the various restrictions at
issue, the district court stated that “the State permits
unlimited attendance at . . . outdoor political events.” Id.
at *15. The district court also stated that Tandon challenged
Santa Clara County’s restrictions, while the Gannons
challenged the State’s restrictions. Id. at 13. But the district
court did not explain why the State’s restrictions would
apply to the Gannons but not Tandon, and did not explain
how, or if, any of these political gatherings would be
considered rallies or protests.
On appeal, the State does not challenge the district
court’s ruling. And Appellants seem to assume that the
gatherings restrictions prohibit all political gatherings at
issue here, except Tandon’s campaign rallies. The parties do
not define “rallies,” or explain when or where such events
12 Because the first Winter factor is dispositive of Appellants’
emergency motion, we need not address the other factors. See California
v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (“Likelihood of success on
the merits is ‘the most important’ factor; if a movant fails to meet this
‘threshold inquiry,’ we need not consider the other factors.” (citation
omitted)).

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TANDON V . NEWSOM 31
are permitted, or whether any restrictions or safety protocols
apply to these events. Nonetheless, based on the district
court’s ruling, the State’s gatherings restrictions do not apply
to Tandon’s requested political activities, and given the
State’s failure to define rallies or distinguish Tandon’s
political activities from the Gannons’ political activities, we
conclude that, on the record before us, the State’s restrictions
do not apply to the Gannons’ political activities. Therefore,
Appellants have not established that an injunction is
necessary, and we deny as moot the emergency motion for
injunctive relief on these claims.13
IV.
Finally, we conclude that the business owner Appellants
have not established a likelihood of success on their
challenge. We have “never held that the right to pursue work
is a fundamental right,” and, as such, the district court likely
did not err in applying rational basis review to their due
process claims. See Sagana v. Tenorio, 384 F.3d 731, 743
(9th Cir. 2004); Tandon, 2021 WL 411375, at *16–19.
Likewise, business owners are not a suspect class, and the
district court correctly applied rational basis review to their
equal protection claims. See Williamson v. Lee Optical, 348
U.S. 483, 489, 491 (1955); Tandon, 2021 WL 411375,
at *19–25.
V.
Appellants have not demonstrated a likelihood of
success on the merits for their free exercise, due process, or
13 This denial is without prejudice to a party asserting in subsequent
proceedings that either Tandon’s or the Gannons’ motion for an
injunction is not mooted by the district court’s ruling limiting the scope
of California’s gatherings restriction.

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32 TANDON V . NEWSOM
equal protection claims, nor have they demonstrated that
injunctive relief is necessary for their free speech claims.
Therefore, we deny the emergency motion for an injunction
pending appeal.
DENIED.
BUMATAY, Circuit Judge, dissenting in part and
concurring in part:
In this uncertain time, only a few things are clear:
First, courts are not competent to respond to the COVID-
19 crisis. California, like other States, is charged with the
authority and the responsibility of guiding her people
through this pandemic. And courts shouldn’t engage in
unnecessary second-guessing or hindsight quarterbacking
when it comes to matters of health and safety.
Second, and most foundational, the Constitution is
enduring. The rights enshrined by the Constitution persist in
times of crisis and tranquility. Thus, at all times, courts must
fulfill their duty to ensure that constitutional rights are
protected.
Equally certain are the Supreme Court’s instructions for
navigating the intersection of these two principles. While
States possess the discretion to respond to the pandemic, we
can never abdicate our role as the bulwark against
constitutional violations. In adjudicating challenges to
COVID-19 restrictions, we must recognize that the right to
the free exercise of religion guaranteed by the First
Amendment is among our most fundamental freedoms. No

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TANDON V . NEWSOM 33
State, in implementing a COVID-19 response, can arbitrarily
discriminate against the exercise of religion.
Three times before, the Supreme Court has found that
our court failed to strike the proper balance between these
principles. Unfortunately, we make the same mistake here.
California currently bans all indoor and outdoor gatherings
at home with more than three households. Pastor Jeremy
Wong and Karen Busch seek to enjoin that restriction to
allow them to host Bible studies and communal worship in
their homes without the three-household limitation. By
failing to grant their requested injunction, we disregard the
lessons from the Court and turn a blind eye to discrimination
against religious practice.
I agree with the majority that (1) an injunction is
unnecessary on Appellants’ free speech and assembly claims
since California’s gatherings restrictions do not apply to
their political activities, and (2) Appellants have not
demonstrated that the State’s commercial restrictions violate
due process or equal protection. But I would hold that
California has clearly infringed on Wong and Busch’s free
exercise rights. Accordingly, I would grant their requested
injunction pending appeal of their religious freedom claim.
For this reason, I respectfully dissent.
I.
The Free Exercise Clause forbids the government from
subjecting religious activity to “unequal treatment.” Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 542 (1993) (simplified). To that end, a law that burdens
religious practice must be both neutral and generally
applicable. Id. at 546. Otherwise, it must be subjected to
“the most rigorous of scrutiny.” Id. Restrictions are not

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34 TANDON V . NEWSOM
generally applicable if they burden religious activity more
than “analogous” secular conduct. Id.
When it comes to Free Exercise challenges to COVID-
19 restrictions, we are no longer writing on a blank slate.
Just last month, the Supreme Court corrected us in three
separate cases—each time enjoining portions of California’s
emergency restrictions on Free Exercise grounds. See S. Bay
United Pentecostal Church v. Newsom, 141 S. Ct. 716
(2021) (South Bay); Harvest Rock Church v. Newsom, No.
20A137, __ S. Ct. __, 2021 WL 406257 (Feb. 5, 2021);
Gateway City Church v. Newsom, No. 20A138, __ S. Ct. __,
2021 WL 753575 (Feb. 26, 2021). Even before then, the
Court provided significant direction on how to evaluate
COVID-19 limitations on religious exercise. See Roman
Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020)
(per curiam). Cumulatively, the message has been clear:
States may not disfavor religious activity in responding to
the pandemic.
Our first lesson was in Roman Catholic Diocese of
Brooklyn, when the Court enjoined a New York executive
order that limited attendance at religious services to 10 or 25
people, depending on whether the service took place in a
“red” or “orange” zone. Id. at 65–66. The Court explained
that the restriction effected “disparate treatment” because
analogous businesses—including acupuncture facilities,
campgrounds, garages, and retail stores—were not subject to
capacity limits. Id. at 66. It therefore applied strict scrutiny
and concluded that the order was not narrowly tailored. Id.
at 67. Justice Kavanaugh further explained that it did not
matter that “some secular businesses are subject to similarly
severe or even more severe restrictions.” Id. at 73
(Kavanaugh, J., concurring) (emphasis original). When

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TANDON V . NEWSOM 35
restrictions create a “favored class” of businesses, the State
must justify excluding houses of worship from that class. Id.
After Roman Catholic Diocese came Harvest Rock
Church. That case required two interventions by the
Supreme Court. On the first trip up to the Court, we had
declined to enjoin California’s total prohibition on indoor
worship services in Tier 1—the most severe level of
COVID-19 restrictions. Harvest Rock Church, Inc. v.
Newsom, 977 F.3d 728, 730–31 (9th Cir. 2020) (Harvest
Rock II). The Supreme Court gave us a second chance,
vacating that order and remanding in light of Roman
Catholic Diocese. No. 20A94, __ S. Ct. __, 2020 WL
7061630 (Dec. 3, 2020) (Harvest Rock III). On the second
trip to the Court, we again denied relief in a largely
unreasoned decision. 985 F.3d 771 (9th Cir. 2021) (Harvest
Rock IV). The Court once more stepped in and enjoined the
prohibition. Harvest Rock Church, 2021 WL 406257, at *1.
Our court seemed to take the hint in South Bay, which
challenged the same ban on indoor religious services as in
Harvest Rock Church. When the district court denied
injunctive relief, we vacated and remanded in light of Roman
Catholic Diocese and Harvest Rock Church. S. Bay United
Pentecostal Church v. Newsom, 981 F.3d 765 (9th Cir. 2020)
(South Bay II). But when the district court again denied
relief, we simply affirmed, reaching the astounding
conclusion that the total ban satisfied strict scrutiny. S. Bay
United Pentecostal Church v. Newsom, 985 F.3d 1128,
1146–48 (9th Cir. 2021) (South Bay III). This time, the
Court responded decisively.
Justice Gorsuch, joined in relevant part by four other
members of the Court, explained that California’s total ban
on indoor religious services “single[d] out religion for worse
treatment than many secular activities,” triggering strict

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36 TANDON V . NEWSOM
scrutiny. South Bay, 141 S. Ct. at 719 (statement of Gorsuch,
J.). And the Court had already “made it abundantly clear
that edicts like California’s fail strict scrutiny and violate the
Constitution.” Id. (citing Roman Catholic Diocese, 141 S.
Ct. 63). Specifically, the State failed to show that less-
restrictive alternatives, like those afforded to secular
activities, were insufficient to address COVID-19 concerns.
Id. at 718–19. The Court’s order, therefore, “should have
been needless” because of the “extensive guidance” made
available to lower courts. Id. But our failure to apply Roman
Catholic Diocese compelled the Court itself to enjoin the
ban.
Finally came Gateway City Church. There, Santa Clara
County’s order restricted religious activity by shuttering
indoor “[g]atherings (e.g., political events, weddings,
funerals, worship services, movie showings, cardroom
operations).” Gateway City Church v. Newsom, No. 20-cv-
8241, 2021 WL 308606, at *4 (N.D. Cal. Jan 29, 2021)
(Gateway City Church II). As here, exceptions were made
for certain favored activities but not worship services. Id at
*10. Nevertheless, we denied an injunction pending appeal
simply because the County’s order restricted “gatherings”
without specific reference to religion. No. 21-15189, 2021
WL 781981, at *1 (9th Cir. Feb. 12, 2021) (Gateway City
Church III). In our view, that made the order neutral and
generally applicable. Id. The plaintiffs appealed to the
Supreme Court, and you can guess the rest: it granted the
injunction in a one-paragraph opinion, tersely faulting our
court for again failing to apply its precedents. Gateway City
Church, 2021 WL 753575, at *1. Once again, we should
have recognized that the Court’s prior decisions “clearly
dictated” enjoining the restriction. Id. At this point, a tale
as old as time.

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TANDON V . NEWSOM 37
The instructions provided by the Court are clear and, by
now, redundant. First, regulations must place religious
activities on par with the most favored class of comparable
secular activities, or face strict scrutiny. Roman Catholic
Diocese, 141 S. Ct. at 66–67. States do not satisfy the Free
Exercise Clause merely by permitting some secular
businesses to languish in disfavored status alongside
religious activity. Id. Second, the fact that a restriction is
itself phrased without reference to religion is not dispositive.
See Gateway City Church, 2021 WL 753575, at *1. So long
as some comparable secular activities are less burdened than
religious activity, strict scrutiny applies. Third, businesses
are analogous comparators to religious practice in the
pandemic context. Roman Catholic Diocese, 141 S. Ct.
at 67.
II.
Pastor Jeremy Wong and Karen Busch each seek an
injunction of the California restriction preventing them from
hosting Bible studies and communal worship services with
more than three total households of fellow worshippers. To
succeed, they must establish (1) a strong likelihood of
success on the merits, (2) a possibility of irreparable injury
if relief is not granted, (3) a balance of hardships in their
favor, and (4) advancement of the public interest. Winter v.
Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Likelihood of success on the merits is the most important
preliminary injunction factor. Doe #1 v. Trump, 984 F.3d
848, 861 (9th Cir. 2020). Furthermore, because the
government is a party to the case, the third and fourth factors
merge. Id.

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38 TANDON V . NEWSOM
A.
Based on the legal background above, California’s
gatherings restriction as applied to in-home worship and
Bible study is subject to strict scrutiny, and the State has not
sustained its burden to prove the household limitations are
narrowly tailored. Consequently, Wong and Busch have
shown a clear likelihood of success on the merits, and the
first Winter factor tips strongly in favor of granting the
injunction.
1.
As Roman Catholic Diocese, South Bay, and Gateway
City Church instruct us, we must apply strict scrutiny to any
restriction that disparately impacts religious practice
compared to analogous secular conduct. For purposes of this
comparison, “[w]hether conduct is analogous . . . does not
depend on whether the religious and secular conduct involve
similar forms of activity[,]” but is instead “measured against
the interests the State offers in support of its restrictions on
conduct.” Monclova Christian Acad. v. Toledo-Lucas Cnty.
Health Dep’t, 984 F.3d 477, 480 (6th Cir. 2020) (applying
Roman Catholic Diocese to a regulation on all schools given
its impact on religious schools).
Here, the State’s worthy interest is in mitigating the
transmission of COVID-19. But California’s limitations on
in-home religious activities is noticeably more restrictive
than analogous secular activities. The gatherings order
limits Wong’s and Busch’s Bible study and home worship to
three households, even when held outdoors.1 Yet California
1 CDPH Guidance for the Prevention of COVID-19 Transmission
for Gatherings, California Department of Public Health (Nov. 13, 2020),

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TANDON V . NEWSOM 39
permits the operation of many comparable secular activities
without similar household limitations, despite implicating
the same interest in preventing the spread of COVID-19.
In particular, hair salons, barbershops, and “personal
care services” may open indoors without maximum
household restrictions.2 “Personal care services” include
many businesses where hours-long physical proximity and
touching is required, such as nail salons, tattoo parlors, body
waxing, facials and other skincare services, and massages.3
So too with barbershops and hair salons. Discussions of
faith and scripture, by comparison, can take place while
socially distanced.
Some personal care services may even allow their clients
to forego masking. Facials, electrolysis, and other like
services necessarily require ready access to a client’s face,
and California permits clients in such circumstances to go
https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-
19/Guidance-for-the-Prevention-of-COVID-19-Transmission-for-
Gatherings-November-2020.aspx.
2 See California Department of Public Health, COVID-19 Industry
Guidance: Hair Salons and Barbershops (Oct. 20, 2020),
https://files.covid19.ca.gov/pdf/guidance-hair-salons--en.pdf; California
Department of Public Health, COVID-19 Industry Guidance: Expanded
Personal Care Services (Oct. 20, 2020),
https://files.covid19.ca.gov/pdf/guidance-expanded-personal-care-
services--en.pdf.
3 See Industry guidance to reduce risk, Covid.CA.gov,
https://covid19.ca.gov/industry-guidance/#personal-care-services
(updated Oct. 20, 2020).

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40 TANDON V . NEWSOM
maskless.4 The result is that a beauty shop may host an
unrestricted number of households, half of them bare-faced
and in immediate proximity to the other half. But 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.
Likewise, Busch, whose Bible study is attended by
couples, can host only two other couples in her house or
backyard, no matter how much distance they maintain or the
size of her living room. But tattoo artists may inject ink into
the arms, legs, and faces of clients with no household
limitation—meaning, in a space the same size as Busch’s
living room, tattoo parlors may accommodate perhaps
double or triple the number of households.
The disparity of treatment between secular and religious
activities is even more pronounced when we consider the
outdoor-gatherings rules. Under California’s restrictions,
except at places of worship,5 outdoor gatherings for religious
activities are subject to a three-household maximum.
Nevertheless, outdoor gatherings for rallies and protests are
subject to no household maximum, so long as attendees stay
4 California Department of Public Health, COVID-19 Industry
Guidance: Expanded Personal Care Services 11 (Oct. 20, 2020),
https://files.covid19.ca.gov/pdf/guidance-expanded-personal-care-
services--en.pdf.
5 Although California restricts indoor capacity at places of worship
to 25% in Tiers 1 and 2 and to 50% in Tiers 3 and 4, it does not impose
maximum household limits on outdoor activities. See Industry guidance
to reduce risk, Covid.CA.gov, https://covid19.ca.gov/industry-guidance/
(under the “Places of worship and cultural ceremonies” tab) (updated
Feb. 22, 2021).

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TANDON V . NEWSOM 41
six feet away from others of different households.6
Accordingly, if Wong and Busch move their Bible studies or
prayer groups to their backyards, the three-household
maximum would still be in effect. But if a political party or
organization wants to hold a rally or protest at the same or
any other location, then maximum household limits are off
the table. Under the Constitution, what’s good for political
rallies and protests should also be good for religious
worship. In other words, California cannot treat religious
exercise worse than political expression.
A law is not generally applicable when its restrictions
“substantially underinclude non-religiously motivated
conduct that might endanger the same governmental interest
that the law is designed to protect.” Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1079 (9th Cir. 2015) (citing
Lukumi, 508 U.S. at 542–46). But California is guilty of
doing just that. The State makes exemptions based on the
subject matter of the gathering by lifting household caps for
political expression but not for religious expression. If
people want to gather to engage in an outdoor political rally
or protest, California’s message to them is, “Go right
ahead!” But if those same people wish to gather outdoors to
pray, unless at a place of worship, California says, “Not so
fast!” Political rallies and protests are favored—even though
the State admits that they “present special public health
concerns for high risk of COVID-19 transmission.”7
Religious gatherings are not. This sort of religious
6 About COVID-19 restrictions, Covid19.CA.gov (Mar. 22, 2021),
https://covid19.ca.gov/stay-home-except-for-essential-needs/ (under the
“Can I engage in political rallies and protest gatherings?” tab).
7 About COVID-19 restrictions, Covid19.CA.gov (Mar. 22, 2021),
https://covid19.ca.gov/stay-home-except-for-essential-needs/ (under the
“Can I engage in political rallies and protest gatherings?” tab).

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42 TANDON V . NEWSOM
gerrymander is odious to the First Amendment and to the
Supreme Court’s precedents. Consequently, California’s
restrictions have the same problem as in Gateway City
Church: once again providing exceptions for certain favored
activities but excluding religious activities. 2021 WL
308606, at *10.
These inconsistent regulations amount to disparate
treatment of religious practice and are accordingly not
generally applicable. See Roman Catholic Diocese, 141 S.
Ct. at 66–67; South Bay, 141 S. Ct. at 717 (statement of
Gorsuch, J.). California’s COVID-19 restrictions patently
favor analogous, secular activities over in-home worship and
Bible studies. Thus, these restrictions are subject to the
“most rigorous of scrutiny.” Lukumi, 508 U.S. at 546. I do
not begrudge business owners their reprieve, but when
California allows greater freedoms for some sectors, it may
not leave religious activities behind. The Court’s recent
decisions “clearly dictate[]” the outcome here. Gateway
City Church, 2021 WL 753575, at *1. Strict scrutiny
applies.
2.
To satisfy strict scrutiny, California must show that the
restriction is narrowly tailored to serve a compelling state
interest. Roman Catholic Diocese, 141 S. Ct. at 67.
Managing the COVID-19 pandemic is doubtless a
compelling interest. Id. But California has not met its
burden of demonstrating that the gatherings restriction is
narrowly tailored.
Our strict scrutiny review is no less exacting because of
our unusual times. Even in the face of a pandemic, “[i]t has
never been enough for the State to insist on deference or
demand that individual rights give way to collective

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TANDON V . NEWSOM 43
interests.” South Bay, 141 S. Ct. at 718 (statement of
Gorsuch, J.). While “we are not scientists,” we do not
“abandon the field when government officials with experts
in tow seek to infringe a constitutionally protected liberty.”
Id.
California asserts the gatherings restriction is narrowly
tailored because it is based on “objective risk criteria,” and
baldly claims that less-restrictive alternatives will not do.
See Tandon v. Newsom, No. 20-cv-7108, 2021 WL 411375,
at *18 (N.D. Cal. Feb. 5, 2021). The criteria are:
(1) the ability to accommodate face covering
wearing at all times; (2) the ability to
physically distance between individuals of
different households; (3) the ability to limit
the number of people per square foot; (4) the
ability to limit the duration of exposure;
(5) the ability to limit the amount of mixing
of people from different households; (6) the
ability to limit the amount of physical
interactions; (7) the ability to optimize
ventilation; and (8) the ability to limit
activities that are known to increase the
possibility of viral spread, such as singing,
shouting, and heavy breathing.
Id. But these criteria are nearly word for word the same ones
rejected by the Supreme Court as insufficient to justify the
shutdown of places of worship under strict scrutiny. See
South Bay III, 985 F.3d at 1134 (listing criteria); South Bay,
141 S. Ct. at 718 (statement of Gorsuch, J.) (noting that these
factors—while “legitimate concerns”—do not justify a total
ban on places of worship).

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44 TANDON V . NEWSOM
The reasoning of South Bay applies with equal force to
worship and prayer within the home. The above factors are
not “always present in [in-home] worship,” even with more
than three households, and they are not “always absent from
the other secular activities its regulations allow.” 141 S. Ct.
at 718. An in-home Bible study including more than three
households may be conducted with face coverings and
physical distancing; for a limited duration; with no “mixing”
of households, physical interactions, or singing or shouting;
and with open windows and doors. The same can hardly be
said of tattoo parlors and nail salons. This sort of mismatch
is a “telltale sign[]” of the lack of narrow tailoring. Id.
California’s failure to even attempt to distinguish South Bay
only underscores this inevitable conclusion.
Even if studying scripture at home risks some level of
transmission of COVID-19, the exemptions for barbershops,
tattoo and nail parlors, and other personal care businesses
reveal that less-restrictive alternatives are available to
California to mitigate that concern. If the State is truly
concerned about the “proximity, length, and interaction” of
private gatherings, as it claims, it could regulate those
aspects of religious gatherings in a narrowly tailored way.
But the one thing California cannot do is privilege tattoo
parlors over Bible studies when loosening household
limitations.8
8 The majority falsely charges me with implying that tattoo parlors
“significantly contribute” to the spread of COVID-19 in California. Maj.
Op. 25 n.9. I make no such implication. Indeed, the majority cites to
nothing in my dissent for this needless accusation. I draw the
comparison between the two because tattoo parlors require close
interactions, while Bible studies do not. That California treats them
differently should be given the highest scrutiny.

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TANDON V . NEWSOM 45
Accordingly, the gatherings restriction fails strict
scrutiny when applied to religious practices, and so Wong
and Busch are likely to prevail on their Free Exercise claim.
3.
The majority concludes that Wong and Busch are
unlikely to succeed on the merits because California bans in-
home gatherings with more than three households across the
board. The majority insists that we look to California’s
treatment of other in-home activities, and not to secular
businesses, to determine if the Constitution was violated. It
confines Roman Catholic Diocese, South Bay, and Gateway
City Church to only places of worship. This is wrong for
several reasons.
Neither the Constitution nor the Court’s precedents limit
the right to free exercise to places of worship. The text of
the First Amendment confers protection on religious
“exercise,” not “places of worship.” U.S. Const. amend. I.
Thus, the freedom to practice one’s religion inheres without
respect to location. So whether at church, mosque,
synagogue, or at home, the State may not infringe on the free
exercise right—at least not without a compelling interest and
narrow tailoring.
The majority draws a different rule, allowing States to
disfavor religious exercise at home, as long as they ensure
places of worship maintain equal footing with business
interests. But there is no basis under the Free Exercise
Clause or the Supreme Court’s precedents to confine
religious freedom to “free exercise zones,” while worship
elsewhere is left in the cold. The majority only gets there by
narrowing Roman Catholic Diocese, South Bay, and
Gateway City Church’s applicability to places of worship so
that they have no binding or even persuasive value in any

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46 TANDON V . NEWSOM
other context. But as lower court judges, we “don’t have
license to adopt a cramped reading of a case” or to “create
razor-thin distinctions” to evade the reach of precedent.
Nat’l Lab. Rels. Bd. v. Int’l Ass’n of Bridge, Structural,
Ornamental, & Reinforcing Iron Workers, Loc. 229, AFL-
CIO, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J.,
dissenting). Rather, we often look to the “reasoning” of the
Court’s precedents for instruction, not just a simplistic
comparison of facts. Langere v. Verizon Wireless Servs.
LLC, 983 F.3d 1115, 1121–22 (9th Cir. 2020).
By limiting these precedents to houses of worship, the
majority loses sight of why houses of worship are protected
at all: because of the religious exercise that occurs therein.
The Constitution shields churches, synagogues, and
mosques not because of their magnificent architecture or
superlative acoustics, but because they are a sanctuary for
religious observers to practice their faith. And that religious
practice is worthy of protection no matter where it happens.
As singer Brandon Flowers puts it, “[t]his church of mine
may not be recognized by steeple / But that doesn’t mean
that I will walk without a God.” Playing With Fire,
Flamingo (Island Records 2010). So while Wong and
Busch’s prayer groups and Bible studies do not take place in
a building topped with a steeple, the First Amendment is
broad enough to shelter their worship.
The majority artificially creates narrow lines of
comparison by refusing to consider California’s treatment of
secular businesses. This flies in the face of the Court’s
instructions, which analogized places of worship to a broad
range of facilities, including schools, garages, and
campgrounds. Roman Catholic Diocese, 141 S. Ct. at 66.
Under California’s stated interest in reducing the
transmission of COVID-19, it’s hard to see why in-home

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TANDON V . NEWSOM 47
religious gatherings should be treated differently from
personal care businesses. Indeed, it does not take a scientist
or doctor to understand that hair salons, barbershops, and
tattoo parlors can operate in spaces similar in size to a home;
that they could host a similar number of households as a
Bible study; or that they could service customers for as long
as a prayer meeting. The majority does not refute any of this.
Instead, it cites to the district court’s findings regarding the
relative risk of transmission between social gatherings in
general and grocery and retail shopping. See Maj. Op. 21
(citing Tandon, 2021 WL 411375, at *30). None of this is
dispositive for comparison to personal care businesses.
Given the similarities between these activities, we
should not myopically focus only on California’s treatment
of in-home activities to determine whether the State
unconstitutionally infringes on religious rights. As
explained above, the suppression of some comparable
secular activity in a similar fashion as religious activity is
not dispositive. See Roman Catholic Diocese, 141 S. Ct. at
73 (Kavanaugh, J., concurring). That California treats all in-
home activities in an equally poor manner does not grant it a
pass on strict scrutiny review.
The majority also emphasizes that nail parlors and other
small businesses are not analogous to in-home worship
because, though exempt from maximum household
limitations, they must disinfect surfaces and take other
protective measures. Maj. Op. 22–25. This only proves my
point: there is no apparent reason why California cannot
provide health and safety guidance for in-home worship as
it does for businesses.9 That California believes these
9 The majority also makes the most circular of arguments here: that
personal care businesses are not proper comparators to in-home religious

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48 TANDON V . NEWSOM
measures allow businesses—even those requiring physical
proximity and unmasking, like facial providers—to open
without a three-household limitation is a sure sign that
narrower tailoring is possible for in-home religious practice.
While such measures may be intrusive, preventing Wong
and Busch from practicing their religion as they see fit is
even more intrusive.10
Finally, the majority appears to share my concerns
regarding California’s exemption for political rallies and
protests but not for religious activity. The majority prefers
not to reach that issue because Wong and Busch have not
made the precise argument here. Maj. Op. 28–29. But, as
Justice Thurgood Marshall once wrote, “[w]hen an issue or
claim is properly before the court, the court is not limited to
the particular legal theories advanced by the parties, but
rather retains the independent power to identify and apply
the proper construction of governing law.” Kamen v.
Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991). In addition
to the other indicia of disparate treatment, the political rallies
and protests exemption demonstrates a clear disfavoring of
worship precisely because California imposed different COVID-19
restrictions on the two. Maj. Op. 25. But this roundabout reasoning
permits the State to shield itself from strict scrutiny by imposing a
regulatory disparity, which instead should trigger strict scrutiny. Courts
then become nothing more than rubberstamps for State regulation.
10 The majority reasons that the Fourth Amendment’s core
protection of the home somehow supports the banning of religious
exercises at that same home. Maj. Op. 25. I disagree with that
understanding of the Fourth Amendment.

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TANDON V . NEWSOM 49
religious activity. Accordingly, we should have held that
Appellants are likely to succeed on the merits.11
B.
The irreparable harm factor also cuts strongly in favor of
granting the injunction. California’s gatherings restriction
unquestionably causes “irreparable harm.” Winter, 555 U.S.
at 20. As enforced, the household limitation bars Wong and
Busch from hosting in-home Bible studies or communal
prayers with their group of fellow worshipers. But even
during a pandemic, the “loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes
irreparable injury.” Roman Catholic Diocese, 141 S. Ct.
at 67 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)
(plurality opinion)).
Here, the loss has been far greater than just a day.
Although both Wong and Busch regularly held these
religious gatherings in the years leading up to the pandemic,
California has barred them from meeting as a group for
nearly a year. And absent injunctive relief, their religious
practices will continue to be interrupted for the foreseeable
future.
C.
The public interest also favors an injunction. Protecting
religious liberty is “obviously” in the public interest.
11 Under our recent precedents, a motions panel’s decision is not
binding on a later merits panel in the same case. See, e.g., City & Cnty.
of San Francisco v. U.S. Citizenship & Immigr. Servs., 981 F.3d 742,
753 (9th Cir. 2020). While I question the wisdom of this precedent, the
merits panel in this case is free to revisit the majority’s erroneous view
of the law.

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50 TANDON V . NEWSOM
California v. Azar, 911 F.3d 558, 582 (9th Cir. 2018).
Indeed, the “Constitution and laws have made the protection
of religious liberty fundamental.” Apache Stronghold v.
United States, No. 21-15295, 2021 U.S. App. LEXIS 6562,
at *20 (9th Cir. Mar. 5, 2021) (Bumatay, J., dissenting).
Here, Wong and Busch request a very narrow injunction,
seeking only to prevent California from prohibiting them
from hosting religious gatherings at their homes with more
than three households during the pendency of this appeal.
They have not requested a State-wide injunction of the
gatherings rule. Such a targeted injunction is eminently
justified compared to the “profound interest in men and
women of faith worshiping together.” On Fire Christian
Ctr., Inc. v. Fischer, 453 F. Supp. 3d 901, 914 (W.D. Ky.
2020).
California asserts, and I agree, that “the public has a
powerful interest in curbing COVID-19 to prevent illness
and death as well as preventing the State’s hospital system
from being overwhelmed.” Opp’n 29. Nevertheless, there
is no indication that “public health would be imperiled if less
restrictive measures were imposed.” Roman Catholic
Diocese, 141 S. Ct. at 68. Nothing in the record supports the
view that Wong’s and Busch’s in-home worship is more
dangerous for the spread of COVID-19 than the operation of
other businesses open for customers without household caps.
At bottom, the public interest is not “served by
maintaining an unconstitutional policy when constitutional
alternatives are available to achieve the same goal.”
Agudath Israel of Am. v. Cuomo, 983 F.3d 620, 637 (2d Cir.
2020). Instead, California has amply demonstrated that such
alternatives are available given that hair salons, tattoo
parlors, and piercing shops are all operating without strict
household limitations.

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TANDON V . NEWSOM 51
III.
The purpose of the Constitution was to place certain
freedoms beyond the whims of the government. Even in
times of crisis, we do not shrink from our duty to safeguard
those rights. Freedom of worship is one of those enshrined
rights, and the Supreme Court’s instructions have been clear,
repeated, and insistent: no COVID-19 restriction can
disfavor religious practice. Yet our court today trudges out
another denial of relief to those seeking to practice their faith
in the face of discriminatory restrictions. I respectfully
dissent.

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