Tandon v. Newsom

• Decision Date: 30 March 2021
• Docket Number: No. 21-15228,21-15228
• Citation: 992 F.3d 916
• Parties: Ritesh TANDON; Karen Busch; Terry Gannon; Carolyn Gannon; Jeremy Wong ; Julie Evarkiou; Dhruv Khanna ; Connie Richards; Frances Beaudet; Maya Mansour, Plaintiffs-Appellants, v. Gavin NEWSOM ; Xavier Becerra ; Sandra Shewry; Erica Pan; Jeffrey V. Smith; Sara H. Cody, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

992 F.3d 916

Ritesh TANDON; Karen Busch; Terry Gannon; Carolyn Gannon; Jeremy Wong ; Julie Evarkiou; Dhruv Khanna ; Connie Richards; Frances Beaudet; Maya Mansour, Plaintiffs-Appellants,

v.Gavin NEWSOM ; Xavier Becerra ; Sandra Shewry; Erica Pan; Jeffrey V. Smith; Sara H. Cody, Defendants-Appellees.

No. 21-15228

United States Court of Appeals, Ninth Circuit.

Filed March 30, 2021

ORDER

This appeal challenges the district court's February 5, 2021 order denying Appellants' motion for a preliminary injunction. Appellants now move for an emergency injunction pending appeal, seeking to prohibit the enforcement of California's restrictions on private "gatherings" and various limitations on businesses as applied to Appellants' in-home Bible studies, political activities, and business operations. We conclude that the Appellants have not satisfied the requirements for the extraordinary remedy of an injunction pending appeal. See Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) ("[I]njunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief."). Therefore, we deny the emergency motion.

I.

A.

In the district court, Appellants challenged the State's and Santa Clara County's restrictions on private "gatherings." However, in this motion, Appellants limit their challenges to the State's restrictions.¹ These restrictions "appl[y] to private gatherings, and all other gatherings not covered by existing sector guidance are prohibited." Cal. Dep't of Pub. Health, Guidance for the Prevention of COVID-19 Transmission for Gatherings , https://cdph.ca.gov/programs/cid/dcdc/pages/covid-19/guidance-for-the-prevention-of-covid-19-transmission-for-gatherings-november-2020.aspx (last visited Mar. 30, 2021). "Gatherings are defined as social situations that bring together people from different households at the same time in a single space or place." Id. Under these restrictions, indoor and outdoor gatherings are limited to three households, but indoor gatherings are prohibited in Tier 1 and "strongly discouraged" in the remaining tiers. Id. The gatherings restrictions also limit gatherings in public parks or other outdoor spaces to three households. Id. A gathering must be in a space that is "large enough" to allow physical distancing of six feet, should be two hours or less in duration, and attendees must wear face coverings. Id. Finally, singing, chanting, shouting, cheering, and similar activities are allowed at outdoor gatherings with restrictions, but singing and chanting are not allowed at indoor gatherings. Id.

Appellants assert that the State's gatherings restrictions provide exemptions, which allow outdoor gatherings with social distancing, political protests and rallies, worship services, and cultural events such as weddings and funerals. Therefore, we also consider the restrictions that apply to these events. Under the State's restrictions, outdoor services with social distancing are allowed at houses of worship, such as churches, mosques, temples, and synagogues. About COVID-19 Restrictions , https://covid19.ca.gov/stay-home-except-for-essential-needs (under "Can I Go to Church" tab) (last visited Mar. 30, 2021). Indoor services at houses of worship are subject to capacity restrictions (25% of capacity in Tier 1 and 2 counties, and 50% of capacity in Tier 3 and 4 counties), and other safety modifications including face coverings, COVID-19 prevention training, social distancing, cleaning and disinfection protocols, and restrictions on singing and chanting. Id. ; see also Industry Guidance to Reduce Risk , https://covid19.ca.gov/industry-guidance#worship (under "Places of worship and cultural ceremonies—updated February 22, 2021" tab) (last visited Mar. 30, 2021).

The restrictions for houses of worship also apply to cultural ceremonies such as funerals and wedding ceremonies. About COVID-19 Restrictions , https://covid19.ca.gov/stay-home-except-for-essential-needs/ (under "Are weddings allowed?" tab) (last visited Mar. 30, 2021). However, wedding receptions are subject to the gatherings restrictions, so in Tier 1 receptions must take place outdoors and are limited to three households, while outdoor or indoor receptions, limited to three households, are allowed in the other tiers. Id.

"[S]tate public health directives do not prohibit in-person outdoor protests and rallies" with social distancing and face coverings. Id. (under "Can I engage in political rallies and protest gatherings?" tab) (emphasis in original). The terms "protests" and "rallies" are not defined,² but the guidance states that "Local Health Officers are advised to consider appropriate limitations on outdoor attendance capacities," and that failure to follow the social distancing restrictions and to wear face coverings "may result in an order to disperse or other enforcement action." Id. Indoor protests and rallies are not allowed in Tier 1 counties but are allowed in other counties subject to the capacity restrictions for places of worship, social distancing, face covering requirements, and prohibitions on singing and chanting. Id.

B.

Appellants challenge the restrictions on three grounds. First, Appellants Pastor Jeremy Wong and Karen Busch argue that the gatherings restrictions violate their right to free exercise of religion because they prevent them from holding in-home Bible studies and communal worship with more than three households in attendance. Second, Appellants Ritesh Tandon and Terry and Carolyn Gannon argue that the gatherings restrictions violate their First Amendment rights to freedom of speech and assembly. Tandon was a candidate for the United States Congress in 2020 and plans to run again in 2022, and he claims that the gatherings restrictions prevent him from holding in-person campaign events and fundraisers. The Gannons assert that the restrictions prohibit them from hosting forums on public affairs at their home. Finally, the business owner Appellants argue that the gatherings restriction, capacity limitations, and other regulations on their businesses violate their Fourteenth Amendment substantive due process and equal protection rights.

C.

In determining whether to grant an injunction pending appeal, we apply the test for preliminary injunctions. Se. Alaska Conservation Council v. U.S. Army Corps of Eng'rs , 472 F.3d 1097, 1100 (9th Cir. 2006). "A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter , 555 U.S. at 20, 129 S.Ct. 365.

II.

A.

We first address Appellants' free exercise claim. The district court denied Appellants' motion for a preliminary injunction because it concluded that California's private gatherings restrictions are neutral and generally applicable, and rationally related to a legitimate government interest. Tandon v. Newsom , No. 20-CV-07108-LHK, 2021 WL 411375, at *38 (N.D. Cal. Feb. 5, 2021). Alternatively, the district court concluded that the restrictions would satisfy strict scrutiny. Id. Appellants argue that the district court erred in applying rational basis review, that the restrictions do not meet the heightened standard of strict scrutiny, and that we should therefore issue an injunction pending appeal.³

Specifically, Appellants assert that the Supreme Court's decisions in Gateway City Church v. Newsom , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 753575 (Feb. 26, 2021), South Bay United Pentecostal Church v. Newsom , ––– U.S. ––––, 141 S. Ct. 716, ––– L.Ed.2d –––– (2021) ( South Bay II ), and Roman Catholic Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 208 L.Ed.2d 206 (2020) (per curiam), establish that the restrictions at issue are not "neutral and generally applicable" and thus strict scrutiny applies.⁴ In these cases, the Court addressed free exercise challenges to COVID-19-based capacity limitations at public places of worship that were more prohibitive than capacity limitations at comparable businesses. See Gateway , ––– U.S. ––––, ––– S.Ct. ––––, 2021 WL 753575 ; South Bay II , 141 S. Ct. 716 ; Roman Catholic Diocese , 141 S. Ct. 63.

Appellants further argue that the State's current restrictions on in-home or private religious gatherings fail strict scrutiny because they do not apply to "a host of comparable secular activities," such as entering crowded train stations, airports, malls, salons, and retail stores, waiting in long check-out lines, and riding on buses. Thus, Appellants argue that the State's gatherings restriction is underinclusive because it does not "include in its prohibition substantial, comparable secular conduct that would similarly threaten the government's interest." Stormans, Inc., v. Wiesman , 794 F.3d 1064, 1079 (9th Cir. 2015).

But as we explain below, from our review of these recent Supreme Court decisions, we conclude that Appellants are making the wrong comparison because the record does not support that private religious gatherings in homes are comparable—in terms of risk to public health or reasonable safety measures to address that risk—to commercial activities, or even to religious activities, in public buildings. When compared to analogous secular in-home private gatherings, the State's restrictions on in-home private religious gatherings are neutral and generally applicable and, thus, subject to rational basis review. See Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah , 508 U.S. 520, 531, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (holding that "a law that is neutral and of general applicability ... even if the law has the incidental effect of burdening a particular religious practice" must only survive rational basis review). Therefore, we conclude that Appellants have not established a...