From Casetext: Smarter Legal Research

Tandon v. Newsom

SUPREME COURT OF THE UNITED STATES
Apr 9, 2021
141 S. Ct. 1294 (2021)

Summary

holding that the government "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." (simplified)

Summary of this case from Doe v. San Diego Unified Sch. Dist.

Opinion

No. 20A151

04-09-2021

Ritesh TANDON, et al. v. Gavin NEWSOM, Governor of California, et al.


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 Appeals 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 generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise. Roman Catholic Diocese of Brooklyn v. Cuomo , 592 U. S. ––––, –––– – ––––, 141 S.Ct. 63, 67-68, 208 L.Ed.2d 206 (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 religious exercise at issue. Id. , at –––– – ––––, 141 S.Ct., at 66-67 (KAVANAUGH, J., concurring)

Second, whether two activities are comparable for purposes of the Free Exercise Clause must be judged against the asserted government interest that justifies the regulation at issue. Id. , at ––––, 141 S.Ct., 67 (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 concerned with the risks various activities pose, not the reasons why people gather. Id. , at ––––, 141 S.Ct., at 66 (GORSUCH, J., concurring)

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 factors "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. ––––, ––––, 141 S.Ct. 716, 718, ––– L.Ed.2d –––– (2021) (statement of GORSUCH, J.); id. , at ––––, 141 S.Ct., at 717 (BARRETT, 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 suffice for other activities suffice for religious exercise too. Roman Catholic Diocese , 592 U. S., at –––– – ––––, 141 S.Ct., at 69-70; South Bay , 592 U. S., at ––––, 141 S.Ct., at 719 (statement of GORSUCH, J.)

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 Catholic Diocese , 592 U. S., at ––––, 141 S.Ct., at 68 ; see also High Plains Harvest Church v. Polis , 592 U. S. ––––, 141 S.Ct. 527, 208 L.Ed.2d 503 (2020).

These principles dictated the outcome in this case, as they did in Gateway City Church v. Newsom , 592 U. S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 308606 (2021). First, California treats some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants 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 comparators simply because this Court's previous decisions involved public buildings as opposed to private buildings. Tandon v. Newsom , 992 F. 3d 916, 919–20, 922–24, (C.A.9 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 precautions used in secular activities, the Ninth Circuit erroneously declared that such measures might not "translate readily" to the home. Id. , at 926–27. 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 (C.A.6 2020) (per curiam ). And fourth, although California 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 ––––, 141 S.Ct., at 720 (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 imperiled" by employing less restrictive measures. Roman Catholic Diocese , 592 U. S., at ––––, 141 S.Ct., at 68. Accordingly, applicants are entitled to an injunction pending appeal.

This is the fifth time the Court has summarily rejected the Ninth Circuit's analysis of California's COVID restrictions on religious exercise. See Harvest Rock Church v. Newsom , 592 U. S. ––––, 141 S.Ct. 889, 208 L.Ed.2d 448 (2020) ; South Bay , 592 U. S. ––––, 141 S.Ct. 716 ; Gish v. Newsom , 592 U. S. ––––, 141 S.Ct. 1290, ––– L.Ed.2d –––– (2021) ; Gateway City , 592 U. S. ––––, ––– S.Ct. ––––. It is unsurprising that such litigants are entitled to relief. California's Blueprint System contains myriad exceptions and accommodations for comparable activities, thus requiring the application of strict scrutiny. And historically, strict scrutiny requires the State to further "interests of the highest order" by means "narrowly tailored in pursuit of those interests." Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (internal quotation marks omitted). That standard "is not watered down"; it "really means what it says." Ibid. (quotation altered).

THE CHIEF JUSTICE would deny the application.

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. ––––, 141 S.Ct. 716, ––– L.Ed.2d –––– (2021) (KAGAN, J., dissenting). The First Amendment requires that a State treat religious conduct as well as the State treats comparable secular conduct. Sometimes finding 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 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 watermelons.

And even supposing a court should cast so expansive a comparative net, the per curiam ’s analysis of this case defies 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 1297–1298. But Judges Milan Smith and Bade explained for the court that those activities do pose lesser risks for at least three reasons. First, "when people gather in social settings, their interactions are likely to be longer than they would be in a commercial setting," with participants "more likely to be involved in prolonged conversations." Tandon v. Newsom , 992 F. 3d 916, 924–25, (C.A.9, Mar. 30, 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 difficult." Ibid. These are not the mere musings of two appellate judges: The district court found each of these facts based on the uncontested testimony of California's public-health experts. Tandon v. Newsom , ––– F. Supp. 3d ––––, ––––, 2021 WL 411375, *30 (ND Cal., Feb. 5, 2021) ; see Tandon , 992 F. 3d, at 924–25, (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 1296–1297) 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 ––––, 141 S.Ct., at 722 (KAGAN, J., dissenting). And it once more commands California "to ignore its experts’ scientific findings," thus impairing "the State's effort to address a public health emergency." Ibid. Because the majority continues to disregard law and facts alike, I respectfully dissent from this latest per curiam decision.


Summaries of

Tandon v. Newsom

SUPREME COURT OF THE UNITED STATES
Apr 9, 2021
141 S. Ct. 1294 (2021)

holding that the government "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." (simplified)

Summary of this case from Doe v. San Diego Unified Sch. Dist.

holding that a government regulation is not neutral and generally applicable whenever they treat any comparable secular activity more favorable than religious exercise

Summary of this case from Bear Creek Bible Church & Braidwood Mgmt. v. Equal Emp't Opportunity Comm'n

holding that the Ninth Circuit should have granted injunctive relief – pending appeal – as to California's restrictions on religious exercise that were unlikely to withstand strict scrutiny

Summary of this case from Bormuth v. Whitmer

holding that case was not moot because state officials "changed the challenged policy shortly after this application was filed"

Summary of this case from Calvary Chapel of Bangor v. Mills

finding irreparable harm from loss of free exercise rights for even minimal periods of time

Summary of this case from A. v. Hochul

determining that applicants were entitled to an injunction pending appeal; finding that applicants "are irreparably harmed by the loss of free exercise rights for even minimal periods of time" (cleaned up)

Summary of this case from In re Covid-Related Restrictions On Religious Servs.

granting injunction pending appeal where California's restrictions on at-home gatherings fell more harshly on religious observers than comparable secular activities

Summary of this case from Haney v. Pritzker

denying mootness challenge where California officials had a “track record of ‘moving the goalposts'” (quoting South Bay United Pentecostal Church v. Newsom, 592 U.S. __, 141 S.Ct. 716, 720 (2021) (statement of GORSUCH, J.))

Summary of this case from Bradshaw v. Dahlstrom

rejecting the California order that restricted worship but permitted larger groups to gather in "hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants"

Summary of this case from Does v. Mills

comparing the relevant secular exemptions to "the religious exercise at issue"

Summary of this case from Dr. A v. Hochul

applying strict scrutiny to California's restrictions on religious gatherings

Summary of this case from Heights Apartments, LLC v. Walz

comparing at-home religious gatherings to movie theaters and restaurants

Summary of this case from Canaan Christian Church v. Montgomery Cnty.

considering secular activities comparable where they were not found to "pose a lesser risk of transmission than [plaintiffs’] proposed religious exercise at home"

Summary of this case from We The Patriots U.S., Inc. v. Hochul

In Tandon v. Newsom, the Court invalidated a prohibition against indoor gatherings of more than three households that had the effect of restricting at-home religious gatherings while allowing groups of more than three households to gather in public settings, like hair salons, retail stores, and restaurants.

Summary of this case from Does v. Hochul

In Tandon v. Newsom, 141 S.Ct. 1294,1297 (2021) (per curiam), the Court found California's COVID-19 prohibition of religious gatherings of more than three households not to be neutral and generally applicable, because the policy did not cover comparable secular activities like hair salons, personal care services, and movie theaters, and indoor restaurants that brought together more than three households at a time.

Summary of this case from Doe v. Catholic Relief Servs.

In Tandon, for example, the district court concluded that a politician's claims were not moot where he attested that he intended to run for office the following year and that he had to meet with advisors, donors, and constituents over the following months while state and county restrictions remained in effect.

Summary of this case from Pine Valley House Resort, LLC v. Newsom

In Tandon-which synthesized Roman Catholic Diocese-the Court adopted a far more exacting methodology in assessing the neutrality and general applicability of COVID-19 regulations.

Summary of this case from Glob. Impact Ministries v. Mecklenburg Cnty.

In Tandon, which addresses exceptions to restrictions on private gatherings for comparable secular and religious activities, the United States Supreme Court held that "government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise."

Summary of this case from Does v. Bd. of Regents of the Univ. of Colo.

applying strict scrutiny and finding that California cannot restrict at-home religious exercise while permitting secular activities that pose similar risks of increasing COVID-19 cases

Summary of this case from Halgren v. City of Naperville

applying strict scrutiny where “California's Blueprint System contains myriad exceptions and accommodations for comparable activities”

Summary of this case from Leone v. Essex Cnty. Prosecutor's Office

enjoining California officials from enforcing occupancy limits on at-home religious exercise in response to COVID-19 when other policies treated comparable secular activities that did not pose a lesser risk of transmission more favorably

Summary of this case from Texas v. United States

applying strict scrutiny to grant an injunction against a law preventing plaintiffs from gathering for at-home religious exercise due to the COVID-19 pandemic

Summary of this case from State v. Bell

In Tandon, the Supreme Court, without analysis, held that "even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case."

Summary of this case from Snell v. Walz

noting that "even if the government withdraws or modifies a COVID restriction in the course of litigation, that does not necessarily moot the case," so long as a petitioner remains " ‘under a constant threat’ that government officials will use their power to reinstate the challenged restrictions" (quoting Roman Catholic Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 75, 208 L.Ed.2d 206 (2020) )

Summary of this case from Green v. Alachua Cnty.
Case details for

Tandon v. Newsom

Case Details

Full title:RITESH TANDON, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL.

Court:SUPREME COURT OF THE UNITED STATES

Date published: Apr 9, 2021

Citations

141 S. Ct. 1294 (2021)
209 L. Ed. 2d 355

Citing Cases

State v. Spell

A government regulation burdening religious exercise is not neutral and generally applicable if, by granting…

Resurrection Sch. v. Hertel

The Supreme Court and other courts have since blocked any number of them, thereby providing concrete examples…