Tandon v. Newsom/Opinion of Justice Kagan

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 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 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 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' 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.