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 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. ___, ___–___ (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 favorably than the religious exercise at issue. Id., at ___–___ 

(KAVANAUGH, J., concurring) (slip op., at 2–3).
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Per Curiam

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 ___ (per curiam) (slip op., at 3) (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 ___ 

(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 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. 

___, ___ (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 religious exercise too. Roman Catholic Diocese, 592 U. S., at 

___–___ (slip op., at 4–5); South Bay, 592 U. S., at ___ (statement 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) 3

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 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, ___ 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 precautions used in secular activities, the Ninth Circuit erroneously 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 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 ___ (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 
4 TANDON v. NEWSOM

Per Curiam

the State has not shown that “public health would be imperiled” by employing less restrictive measures. Roman 

Catholic Diocese, 592 U. S., at ___ (slip op., at 5). 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. ___ (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 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 (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.
Cite as: 593 U. S. ____ (2021) 1

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. 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 athome 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 
2 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 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, ___ 

F. 3d ___, ___, 2021 WL 1185157, *7 (CA9, 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, ___ 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 athome 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’ 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.