Tandon v. Newsom

P R E L I M I N A R Y P R I N T
Volume 593 U. S. Part 1
Pages 61–66
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
April 9, 2021
REBECCA A. WOMELDORF
reporter of decisions
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pio@supremecourt.gov, of any typographical or other formal errors.

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TERM, 2020
61
Syllabus
TANDON et al. v. NEWSOM, GOVERNOR OF
CALIFORNIA,
et al.
on application for injunctive relief
No. 20A151. Decided April 9, 2021
Applicants challenge California's COVID–19 restrictions prohibiting pri-
vate gatherings, including applicants' at-home religious exercise, from
bringing together more than three households at one time. They seek
to enjoin enforcement of those restrictions pending appeal to the Court
of Appeals for the Ninth Circuit. The Ninth Circuit denied an injunc-
tion pending appeal. Applicants presented an emergency application
for injunctive relief to Justice Kagan, which she referred to the
Court.
Held: California is enjoined from enforcing the challenged restrictions
against applicants' at-home religious exercise pending disposition of the
appeal in the Ninth Circuit, as well as disposition of any petition for a
writ of certiorari timely sought.
Government regulations trigger strict scrutiny when they treat any
comparable secular activity more favorably than religious exercise.
Comparability is concerned with the government interest asserted, not
with whether persons undertake religious exercise for public or private
reasons. Strict scrutiny requires the government to show that less re-
strictive alternatives, including precautions it permits secular activities,
could not address the government's interest. Applicants entitled to an
injunction remain entitled to relief where there is a constant threat that
government officials will reimpose challenged restrictions. Roman
Catholic Diocese of Brooklyn v. Cuomo, 592 U. S. –––; South Bay
United Pentecostal Church v. Newsom, 592 U. S. –––; High Plains Har-
vest Church v. Polis, 592 U. S. –––.
Applicants are likely to succeed on the merits of their free exercise
claim. California treats comparable secular activities more favorably,
permitting them to bring together more than three households with
certain precautions. Those public activities are comparable to appli-
cants' private religious exercise. California did not show that less re-
strictive alternatives could not permit applicants to gather for at-home
worship in larger numbers. Although California has changed the chal-
lenged policy, state offcials retain authority to reinstate heightened re-
strictions. Applicants are irreparably harmed by the loss of free exer-
cise rights for even minimal periods of time and the State has not shown
that public health would be imperiled by less restrictive measures.
Application for injunction granted.

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ANDON v. NEWSOM
Per Curiam
Per Curiam.
The
application for injunctive relief presented to Justice
Kagan and by her referred to the Court is granted pending
disposition of the appeal in the United States Court of Ap-
peals for the Ninth Circuit and disposition of the petition for
a writ of certiorari, if such writ is timely sought. Should
the petition for a writ of certiorari be denied, this order shall
terminate automatically. In the event the petition for a writ
of certiorari is granted, the order shall terminate upon the
sending down of the judgment of this Court.
***
The Ninth Circuit's failure to grant an injunction pending
appeal was erroneous. This Court's decisions have made
the following points clear.
First, government regulations are not neutral and gener-
ally applicable, and therefore trigger strict scrutiny under
the Free Exercise Clause, whenever they treat any compara-
ble secular activity more favorably than religious exercise.
Roman Catholic Diocese of Brooklyn v. Cuomo, 592 U. S.
–––, ––– – ––– (2020) (per curiam). It is no answer that a
State treats some comparable secular businesses or other
activities as poorly as or even less favorably than the reli-
gious exercise at issue. Id., at ––– – ––– (Kavanaugh, J.,
concurring).
Second, whether two activities are comparable for pur-
poses of the Free Exercise Clause must be judged against
the asserted government interest that justifes the regula-
tion at issue. Id., at ––– (per curiam) (describing secular
activities treated more favorably than religious worship that
either “have contributed to the spread of COVID–19” or
“could” have presented similar risks). Comparability is con-
cerned with the risks various activities pose, not the reasons
why people gather. Id., at ––– (Gorsuch, J., concurring).
Third, the government has the burden to establish that
the challenged law satisfes strict scrutiny. To do so in this
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Cite
as: 593 U. S. 61 (2021)
63
Per Curiam
context, it must do more than assert that certain risk factors
“are
always present in worship, or always absent from the
other secular activities” the government may allow. South
Bay Un i ted Pen tecosta l Church v. Newso m, 592 U. S.
–––, ––– (2021) (statement of Gorsuch, J.); id., at ––– (Bar-
rett, J., concurring). Instead, narrow tailoring requires
the government to show that measures less restrictive of the
First Amendment activity could not address its interest in
reducing the spread of COVID. Where the government
permits other activities to proceed with precautions, it must
show that the religious exercise at issue is more dangerous
than those activities even when the same precautions are
applied. Otherwise, precautions that suffce for other activ-
ities suffce for religious exercise too. Roman Catholic Dio-
cese, 592 U. S., at ––– – –––; South Bay, 592 U. S., at –––
(statement of Gorsuch, J.).
Fourth, even if the government withdraws or modifes a
COVID restriction in the course of litigation, that does not
necessarily moot the case. And so long as a case is not moot,
litigants otherwise entitled to emergency injunctive relief
remain entitled to such relief where the applicants “remain
under a constant threat” that government offcials will use
their power to rei nst ate the cha l lenged restr ic ti ons.
Roman Catholic Diocese, 592 U. S., at –––; see also High
Plains Harvest Church v. Polis, 592 U. S. ––– (2020).
These principles dictated the outcome in this case, as they
did in Gateway City Church v. Newsom, 592 U. S. ––– (2021).
First, California treats some comparable secular activities
more favorably than at-home religious exercise, permitting
hair salons, retail stores, personal care services, movie the-
aters, private suites at sporting events and concerts, and in-
door restaurants to bring together more than three house-
holds at a time. App. to Emergency Application for Writ of
Injunction 183–189. Second, the Ninth Circuit did not con-
clude that those activities pose a lesser risk of transmission
than applicants' proposed religious exercise at home. The

64 T
ANDON v. NEWSOM
Per Curiam
Ninth Circuit erroneously rejected these comparators sim-
ply
because this Court's previous decisions involved public
buildings as opposed to private buildings. Tandon v. New-
som, 992 F. 3d 916, 919–920, 922–924 (CA9 2021). Third,
instead of requiring the State to explain why it could not
safely permit at-home worshipers to gather in larger num-
bers while using precautions used in secular activities, the
Ninth Circuit erroneously declared that such measures might
not “translate readily” to the home. Id., at 926. The State
cannot “assume the worst when people go to worship but
assume the best when people go to work. ” Robe r t s
v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam).
And fourth, although California offcials changed the chal-
lenged policy shortly after this application was fled, the
prev i ous restr ic ti ons remai n i n place unti l Apr i l 15th,
and offcials with a track record of “moving the goalposts”
retain authority to reinstate those heightened restrictions
at any time. South Bay, 592 U. S., at ––– (statement of
Gorsuch, J.).
Applicants are likely to succeed on the merits of their free
exercise claim; they are irreparably harmed by the loss of
free exercise rights “for even minimal periods of time”; and
the State has not shown that “public health would be imper-
iled” by employing less restrictive measures. Roman Cath-
olic Diocese, 592 U. S., at –––. Accordingly, applicants are
entitled to an injunction pending appeal.
This is the ffth time the Court has summarily rejected
the Ninth Circuit's analysis of California's COVID restric-
tions on religious exercise. See Harvest Rock Church v.
Newsom, 592 U. S. ––– (2020); South Bay, 592 U. S. –––;
Gish v. Newsom, 592 U. S. ––– (2021); Gateway City, 592
U. S. –––. It is unsurprising that such litigants are entitled
to relief. California's Blueprint System contains myriad ex-
ceptions and accommodations for comparable activities, thus
requiring the application of strict scrutiny. And histori-
cally, strict scrutiny requires the State to further “interests
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Cite
as: 593 U. S. 61 (2021)
65
Kagan, J., dissenting
of the highest order” by means “narrowly tailored in pursuit
of
those interests.” Church of Lukumi Babalu Aye, Inc. v.
Hialeah, 508 U. S. 520, 546 (1993) (internal quotation marks
omitted). That standard “is not watered down”; it “really
means what it says.” Ibid. (quotation altered).
It is so ordered.
The Chief Justice would deny the application.
Justice Kagan, with whom Justice Breyer and Jus-
tice Sotomayor join, dissenting.
I would deny the application largely for the reasons stated
in South Bay United Pentecostal Church v. Newsom, 592
U. S. ––– (2021) (Kagan, J., dissenting). The First Amend-
ment requires that a State treat religious conduct as well
as the State treats comparable secular conduct. Sometimes
fnding the right secular analogue may raise hard questions.
But not today. California limits religious gatherings in
homes to three households. If the State also limits all secu-
lar gatherings in homes to three households, it has complied
with the First Amendment. And the State does exactly
that: It has adopted a blanket restriction on at-home gather-
ings of all kinds, religious and secular alike. California need
not, as the per curiam insists, treat at-home religious gath-
erings the same as hardware stores and hair salons—and
thus unlike at-home secular gatherings, the obvious compa-
rator here. As the per curiam's reliance on separate opin-
ions and unreasoned orders signals, the law does not require
that the State equally treat apples and watermelons.
And even supposing a court should cast so expansive a
comparative net, the per curiam's analysis of this case defes
the factual record. According to the per curiam, “the Ninth
Circuit did not conclude that” activities like frequenting
stores or salons “pose a lesser risk of transmission” than
applicants' at-home religious activities. Ante, at 63. But
Judges Milan Smith and Bade explained for the court that
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66 T
ANDON v. NEWSOM
Kagan, J., dissenting
those activities do pose lesser risks for at least three reasons.
First,
“when people gather in social settings, their interac-
tions are likely to be longer than they would be in a commer-
cial setting,” with participants “more likely to be involved
in prolonged conversations.” Tandon v. Newsom, 992 F. 3d
916, 925 (CA9 2021). Second, “private houses are typically
smaller and less ventilated than commercial establishments.”
Ibid. And third, “social distancing and mask-wearing are
less likely in private settings and enforcement is more diff-
cult.” Ibid. These are not the mere musings of two appel-
late judges: The district court found each of these facts based
on the uncontested testimony of California's public-health
experts. Tandon v. Newsom, 517 F. Supp. 3d 922, 964 (ND
Cal. 2021); see Tandon, 922 F. 3d, at 925 (noting that the
applicants “do not dispute any of these fndings”). No doubt
this evidence is inconvenient for the per curiam's preferred
result. But the Court has no warrant to ignore the record
in a case that (on its own view, see ante, at 62) turns on
risk assessments.
In ordering California to weaken its restrictions on at-
home gatherings, the majority yet again “insists on treating
unlike cases, not like ones, equivalently.” South Bay, 592
U. S., at ––– (Kagan, J., dissenting). And it once more com-
mands California “to ignore its experts' scientifc fndings,”
thus impairing “the State's effort to address a public health
emergency.” Ibid. Because the majority continues to dis-
regard law and facts alike, I respectfully dissent from this
latest per curiam decision.
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