## Facts

- In 2020, California officials, including Governor Gavin Newsom, issued COVID-19 restrictions affecting commercial and social activity to reduce viral spread.
- One restriction limited all private gatherings in a home to people from no more than three households at a time.
- Ritesh Tandon and other applicants wished to hold in-home religious gatherings (including Bible study and prayer meetings) with people from more than three households.
- The three-household cap applied to those in-home religious meetings, making the applicants’ planned gatherings unlawful under the State’s rules.
- At the same time, California allowed various secular settings to bring together people from more than three households subject to other precautions, including hair salons, retail stores, personal care services, movie theaters, and private suites at sporting events and concerts.
- The applicants sought an injunction in federal district court barring enforcement of the three-household cap against their in-home religious gatherings; the district court denied relief.
- The applicants sought emergency relief in the Ninth Circuit; the Ninth Circuit declined to grant an injunction pending appeal.
- The applicants then applied to the Supreme Court for injunctive relief pending appeal.

## Issues

1. Whether California’s three-household cap on in-home gatherings triggered strict scrutiny under the Free Exercise Clause because comparable secular activities were permitted to operate with less restrictive limits.
2. Whether the applicants satisfied the requirements for an injunction pending appeal against enforcement of the three-household limit as applied to their in-home religious gatherings.

## Decision

- The Supreme Court (per curiam) granted the application for injunctive relief pending disposition of the appeal in the Ninth Circuit and pending disposition of any petition for certiorari.
- The Court stated that regulations trigger strict scrutiny under the Free Exercise Clause when they treat any comparable secular activity more favorably than religious exercise.
- The Court rejected the argument that unequal treatment is excused because some secular activities are regulated as strictly as (or more strictly than) the religious activity at issue; a single favored comparable secular activity is enough to defeat neutrality and general applicability.
- The Court explained that comparability turns on the risks the activities pose to the government’s asserted interest (here, reducing COVID-19 transmission), not on why people gather.
- The Court concluded the applicants were likely to succeed because California permitted multiple secular activities to bring together more than three households while imposing a categorical three-household cap on in-home religious gatherings.
- The Court held that California had not met its burden under strict scrutiny to show narrow tailoring—particularly where the State allowed other activities to proceed with precautions but did not show why similar precautions would be inadequate for in-home religious gatherings.
- The order reflected a 5–4 split; Justice Kagan dissented, joined by Justices Breyer and Sotomayor, and the Chief Justice noted he would deny the application.

## Legal Principles

- A law burdening religious exercise is not neutral and generally applicable, and therefore triggers strict scrutiny, when it treats any comparable secular activity more favorably than religious exercise.
- The relevant comparison under the Free Exercise Clause focuses on the asserted government interest and the risks posed by the activities, not the reasons participants gather.
- It is not a defense that the government treats some secular activities as poorly as religious exercise; favorable treatment of any comparable secular activity is sufficient to trigger strict scrutiny.
- Under strict scrutiny, the government bears the burden to show that the challenged restriction is narrowly tailored to a compelling interest.
- In the COVID-19 context, the government must do more than make generalized claims about risk factors; where secular activities may proceed with precautions, the government must explain why comparable precautions would not adequately address the risk for the religious exercise.
- When the traditional equitable factors favor relief, the Supreme Court may grant an injunction pending appeal to prevent ongoing constitutional harm while the case proceeds.

## Conclusion

In a per curiam emergency order, the Supreme Court enjoined California from enforcing its three-household cap against the applicants’ in-home religious gatherings pending appeal because the State allowed comparable secular activities to involve more than three households and did not carry its burden to justify the stricter rule for religious exercise under strict scrutiny.


Tandon v. Newsom, 141 S. Ct. 1294, 209 L. Ed. 2D 355 (2021)