Tandon v. Newsom

Tandon v. Newsom

Opinion

 [*1296]  [**357]   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. ___, ___-___, 141 S. Ct. 63, 67, 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. 63, 73, 208 L. Ed. 2d 206 (Kavanaugh, [***2]  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. 63, 67, 208 L. Ed. 2d 206 (per curiam) (describing secular activities treated more favorably than religious worship  [**358]  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. 63, 79, 208 L. Ed. 2d 206 (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, 209 L. Ed. 2d 22 (2021) (statement of Gorsuch, J.); id., at ___ (Barrett, J., concurring). Instead, narrow tailoring requires the government to show that measures less restrictive  [*1297]  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 [***3]  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. 63, 69, 208 L. Ed. 2d 206; South Bay, 592 U. S., at ___, 141 S. Ct. 716, 718, 209 L. Ed. 2d 22 (statement of Gorsuch, J.).

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