Supreme Court Order (per Curiam) — Tandon v. Newsom, No. 20A151 (Apr. 9, 2021) (U.S.)

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Cite as: 593 U. S. ____ (2021) 
1 
 
Per Curiam 
SUPREME COURT OF THE UNITED STATES 
_________________ 
No. 20A151 
_________________ 
RITESH TANDON, ET AL. v. GAVIN NEWSOM, 
GOVERNOR OF CALIFORNIA, ET AL. 
ON APPLICATION FOR INJUNCTIVE RELIEF 
[April 9, 2021] 
 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 compa-
rable secular activity more favorably than religious exer-
cise.  Roman Catholic Diocese of Brooklyn v. Cuomo, 592 
U. S. ___, ___–___ (2020) (per curiam) (slip op., at 3–4).  It 
is no answer that a State treats some comparable secular 
businesses or other activities as poorly as or even less fa-
vorably than the religious exercise at issue.  Id., at ___–___ 
(KAVANAUGH, J., concurring) (slip op., at 2–3). 

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TANDON v. NEWSOM 
 
 
Per Curiam 
 Second, whether two activities are comparable for pur-
poses of the Free Exercise Clause must be judged against 
the asserted government interest that justifies the regula-
tion at issue.  Id., at ___ (per curiam) (slip op., at 3) (describ-
ing secular activities treated more favorably than religious 
worship that either “have contributed to the spread of 
COVID–19” or “could” have presented similar risks).  Com-
parability is concerned with the risks various activities 
pose, not the reasons why people gather.  Id., at ___ 
(GORSUCH, J., concurring) (slip op., at 2). 
 Third, the government has the burden to establish that 
the challenged law satisfies strict scrutiny.  To do so in this 
context, it must do more than assert that certain risk fac-
tors “are always present in worship, or always absent from 
the other secular activities” the government may allow.  
South Bay United Pentecostal Church v. Newsom, 592 U. S. 
___, ___ (2021) (statement of GORSUCH, J.) (slip op., at 2); 
id., at ___ (BARRETT, J., concurring) (slip op., at 1).  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 suffice for other activities suffice for reli-
gious exercise too.  Roman Catholic Diocese, 592 U. S., at 
___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (state-
ment of GORSUCH, J.) (slip op., at 3). 
 Fourth, even if the government withdraws or modifies 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 officials will use 
their power to reinstate the challenged restrictions.  Roman 

 
Cite as: 593 U. S. ____ (2021) 
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Per Curiam 
Catholic Diocese, 592 U. S., at ___ (slip op., at 6); 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 ac-
tivities more favorably than at-home religious exercise, per-
mitting hair salons, retail stores, personal care services, 
movie theaters, private suites at sporting events and con-
certs, and indoor restaurants to bring together more than 
three households at a time.  App. to Emergency Application 
for Writ of Injunction 183–189.  Second, the Ninth Circuit 
did not conclude that those activities pose a lesser risk of 
transmission than applicants’ proposed religious exercise 
at home.  The Ninth Circuit erroneously rejected these com-
parators simply because this Court’s previous decisions in-
volved public buildings as opposed to private buildings.  
Tandon v. Newsom, ___ F. 3d ___, ___, ___–___, 2021 WL 
1185157, *3, *5–*6 (CA9 2021).  Third, instead of requiring 
the State to explain why it could not safely permit at-home 
worshipers to gather in larger numbers while using precau-
tions used in secular activities, the Ninth Circuit errone-
ously declared that such measures might not “translate 
readily” to the home.  Id., at *8.  The State cannot “assume 
the worst when people go to worship but assume the best 
when people go to work.”  Roberts v. Neace, 958 F. 3d 409, 
414 (CA6 2020) (per curiam).  And fourth, although Califor-
nia officials changed the challenged policy shortly after this 
application was filed, the previous restrictions remain in 
place until April 15th, and officials 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.) (slip op., at 6). 
 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 

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TANDON v. NEWSOM 
 
 
Per Curiam 
the State has not shown that “public health would be im-
periled” by employing less restrictive measures.  Roman 
Catholic Diocese, 592 U. S., at ___ (slip op., at 5).  Accord-
ingly, applicants are entitled to an injunction pending ap-
peal. 
 This is the fifth time the Court has summarily rejected 
the Ninth Circuit’s analysis of California’s COVID re-
strictions 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 his-
torically, strict scrutiny requires the State to further “inter-
ests 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 quota-
tion marks omitted).  That standard “is not watered down”; 
it “really means what it says.”  Ibid. (quotation altered). 
 THE CHIEF JUSTICE would deny the application. 

 
Cite as: 593 U. S. ____ (2021) 
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KAGAN, J., dissenting 
SUPREME COURT OF THE UNITED STATES 
_________________ 
No. 20A151 
_________________ 
RITESH TANDON, ET AL. v. GAVIN NEWSOM, 
GOVERNOR OF CALIFORNIA, ET AL. 
ON APPLICATION FOR INJUNCTIVE RELIEF 
[April 9, 2021] 
 JUSTICE KAGAN, with whom JUSTICE BREYER and 
JUSTICE 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 
Amendment requires that a State treat religious conduct as 
well as the State treats comparable secular conduct.  Some-
times finding the right secular analogue may raise hard 
questions.  But not today.  California limits religious gath-
erings in homes to three households.  If the State also limits 
all secular 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 gatherings of all kinds, religious and secular alike.  
California need not, as the per curiam insists, treat at-home 
religious gatherings the same as hardware stores and hair 
salons—and thus unlike at-home secular gatherings, the 
obvious comparator here.  As the per curiam’s reliance on 
separate opinions and unreasoned orders signals, the law 
does not require that the State equally treat apples and wa-
termelons. 
 And even supposing a court should cast so expansive a 
comparative net, the per curiam’s analysis of this case de-
fies the factual record.  According to the per curiam, “the 
Ninth Circuit did not conclude that” activities like frequent-
ing stores or salons “pose a lesser risk of transmission” than 

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TANDON v. NEWSOM 
 
 
KAGAN, J., dissenting 
applicants’ at-home religious activities.  Ante, at 3.  But 
Judges Milan Smith and Bade explained for the court that 
those activities do pose lesser risks for at least three rea-
sons.  First, “when people gather in social settings, their in-
teractions are likely to be longer than they would be in a 
commercial setting,” with participants “more likely to be in-
volved in prolonged conversations.”  Tandon v. Newsom, ___ 
F. 3d ___, ___, 2021 WL 1185157, *7 (CA9, Mar. 30, 2021).  
Second, “private houses are typically smaller and less ven-
tilated than commercial establishments.”  Ibid.  And third, 
“social distancing and mask-wearing are less likely in pri-
vate settings and enforcement is more difficult.”  Ibid.  
These are not the mere musings of two appellate judges: 
The district court found each of these facts based on the un-
contested testimony of California’s public-health experts.  
Tandon v. Newsom, ___ F. Supp. 3d ___, ___, 2021 WL 
411375, *30 (ND Cal., Feb. 5, 2021); see Tandon, ___ F. 3d, 
at ___, 2021 WL 1185157, *7 (noting that the applicants “do 
not dispute any of these findings”).  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 2) 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) (slip op., at 5).  And it 
once more commands California “to ignore its experts’ sci-
entific findings,” thus impairing “the State’s effort to ad-
dress a public health emergency.”  Ibid.  Because the ma-
jority continues to disregard law and facts alike, I 
respectfully dissent from this latest per curiam decision.

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