FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`FILED
`
`
`MAR 30 2021
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 21-15228
`
`
`D.C. No. 5:20-cv-07108-LHK
`Northern District of California,
`San Jose
`
`
`ORDER
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`RITESH TANDON; KAREN BUSCH;
`TERRY GANNON; CAROLYN GANNON;
`JEREMY WONG; JULIE EVARKIOU;
`DHRUV KHANNA; CONNIE RICHARDS;
`FRANCES
`BEAUDET;
`MAYA
`MANSOUR,
`
`
`
` v.
`
`
`GAVIN NEWSOM; XAVIER BECERRA;
`SANDRA
`SHEWRY; ERICA
`PAN;
`JEFFREY V. SMITH; SARA H. CODY,
`
`
`
`
`
`
`
`
`
` Defendants-Appellees.
`
`
`Before: M. SMITH, BADE, and BUMATAY, Circuit Judges.
`
`Order by Judges M. SMITH and BADE, Partial Dissent and Partial Concurrence by
`Judge BUMATAY
`
`
`
`This appeal challenges the district court’s February 5, 2021 order denying
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`Appellants’ motion for a preliminary injunction. Appellants now move for an
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`emergency injunction pending appeal, seeking to prohibit the enforcement of
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`California’s restrictions on private “gatherings” and various limitations on
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`businesses as applied to Appellants’ in-home Bible studies, political activities, and
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`business operations. We conclude that the Appellants have not satisfied the
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`
`
`
`
`
`
`

`

`requirements for the extraordinary remedy of an injunction pending appeal. See
`
`Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (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
`
`
`1 The State restrictions assign counties to different tiers based on factors such
`as adjusted COVID-19 case rates, positivity rates, a health equity metric, and
`vaccination rates. See Cal. Dep’t of Pub. Health, Blueprint for a Safer Economy,
`https://covid19.ca.gov/safer-economy/#tier-assignments (last visited Mar. 30,
`2021). These tiers are assigned number and color designations in descending order
`of risk: Widespread (Tier 1 or purple); Substantial (Tier 2 or red); Moderate (Tier 3
`or orange); and Minimal (Tier 4 or yellow). See id. Appellants reside in Santa Clara
`County, which is currently a Tier 2 county.
`
`
`
`2
`
`
`
`

`

`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
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`gatherings in public parks or other outdoor spaces to three households. Id. A
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`gathering must be in a space that is “large enough” to allow physical distancing of
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`six feet, should be two hours or less in duration, and attendees must wear face
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`coverings. Id. Finally, singing, chanting, shouting, cheering, and similar activities
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`are allowed at outdoor gatherings with restrictions, but singing and chanting are not
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`allowed at indoor gatherings. Id.
`
`Appellants assert that the State’s gatherings restrictions provide exemptions,
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`which allow outdoor gatherings with social distancing, political protests and rallies,
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`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
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`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
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`worship are subject to capacity restrictions (25% of capacity in Tier 1 and 2 counties,
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`and 50% of capacity in Tier 3 and 4 counties), and other safety modifications
`
`
`
`3
`
`
`
`

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`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
`
`
`2 One dictionary defines a “rally” as “a mass meeting intending to arouse
` See Rally, MERRIAM-WEBSTER, https://www.merriam-
`group enthusiasm.”
`webster.com/dictionary/rally (last visited Mar. 30, 2021).
`
`
`
`4
`
`
`
`

`

`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-
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`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
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`restriction, capacity limitations, and other regulations on their businesses violate
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`their Fourteenth Amendment substantive due process and equal protection rights.
`
`In determining whether to grant an injunction pending appeal, we apply the
`
`C.
`
`
`
`5
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`

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`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.
`
`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
`
`
`3 Appellants do not argue that the State’s restrictions on gatherings would fail
`rational basis review. Under that deferential standard, regulations “must be upheld
`. . . if there is any reasonably conceivable state of facts that could provide a rational
`basis for the classification.” Heller v. Doe, 509 U.S. 312, 320 (1993) (quoting
`
`
`
`
`6
`
`
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`

`

`Specifically, Appellants assert that the Supreme Court’s decisions in Gateway
`
`City Church v. Newsom, __ S. Ct. __, 2021 WL 753575 (Feb. 26, 2021), South Bay
`
`United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (South Bay II), and
`
`Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (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
`
`
`F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993)). In contrast, under strict
`scrutiny, the regulations “must be ‘narrowly tailored’ to serve a ‘compelling’ state
`interest.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020)
`(per curiam) (quoting Church of the Lukumi Babalu Aye, Inc., v. City of Hialeah,
`508 U.S. 520, 546 (1993)).
`4 The parties do not discuss, or even cite, the Supreme Court’s recent decisions
`in Harvest Rock Church v. Newsom, ___ S. Ct. ___, No. 20A137, 2021 WL 406257
`(Feb. 5, 2021) (per curiam), and Harvest Rock Church v. Newsom, 141 S. Ct. 889
`(2020) (mem.). In the first of these two decisions in the same case, without
`elaboration, the Court treated an application for injunctive relief as a petition for writ
`of certiorari before judgment and granted the petition, vacated the district court’s
`judgment, and remanded to this court to remand to the district court for “further
`consideration in light of” Roman Catholic Diocese. 141 S. Ct. 889.
`In the second decision, the Court considered the same prohibitions on indoor
`services at house of worship that were at issue in Gateway, 2021 WL 3086060, at
`*4, and South Bay II, 141 S. Ct. at 716, and granted an application for injunctive
`relief pending appeal and enjoined the State from enforcing the Tier 1 prohibition
`on indoor worship services but denied the application with respect to the percentage
`capacity limitations and the singing and chanting restrictions during indoor services.
`2021 WL 406257 at *1. While some Justices noted that they would have granted
`the application for injunctive relief in full and other Justices noted that they
`dissented, those Justices only referenced their statements in South Bay II. See id.
`Thus, Harvest Rock does not substantively add to the body of case law informing
`our analysis, as our dissenting colleague apparently agrees. See Dissent at 7 (noting
`that “Roman Catholic Diocese, South Bay [II], and Gateway City Church instruct
`us”).
`
`
`
`7
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`

`

`challenges to COVID-19-based capacity limitations at public places of worship that
`
`were more prohibitive than capacity limitations at comparable businesses. See
`
`Gateway, __ 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
`
`
`
`8
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`
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`

`

`Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520, 531 (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 likelihood of success
`
`on the merits. See Winter, 555 U.S. at 20.
`
`B.
`
`As Appellants argue, three recent Supreme Court decisions addressing free
`
`exercise challenges to COVID-19 restrictions are relevant to our analysis. First, in
`
`Roman Catholic Diocese, the Court held that New York’s COVID-19 restrictions
`
`triggered strict scrutiny because “[t]he applicants . . . made a strong showing that the
`
`challenged restrictions violate ‘the minimum requirement of neutrality’ to religion.”
`
`141 S. Ct. at 66 (quoting Lukumi, 508 U.S. at 533). The Court wrote that “the
`
`regulations cannot be viewed as neutral because they single out houses of worship
`
`for especially harsh treatment.” Id.
`
`As proof of this “especially harsh treatment,” the Court pointed out that “while
`
`a synagogue or church may not admit more than 10 persons, businesses categorized
`
`as ‘essential’ may admit as many people as they wish,” and that those “essential
`
`businesses” included “acupuncture facilities, camp grounds, garages, as well as . . .
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`all plants manufacturing chemicals and microelectronics and all transportation
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`facilities.” Id.; see also id. at 69 (Gorsuch, J., concurring) (“People may gather
`
`
`
`9
`
`
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`

`

`inside for extended periods in bus stations and airports, in laundromats and banks,
`
`in hardware stores and liquor shops. No apparent reason exists why people may not
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`gather, subject to identical restrictions, in churches or synagogues . . . .”). Because
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`“a large store in Brooklyn . . . could ‘literally have hundreds of people shopping
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`there on any given day,’” but “a nearby church or synagogue would be prohibited
`
`from allowing more than 10 or 25 people inside for a worship service,” the
`
`restrictions were not neutral or generally applicable. Id. at 67 (citation omitted). The
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`Court further held that the restrictions did not pass strict scrutiny. Id.
`
`Then, in South Bay II, the Court reviewed California’s Tier 1 restrictions,
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`which included a total “prohibition on indoor worship services,” and enjoined
`
`enforcement of this restriction. 141 S. Ct. at 716. Justice Gorsuch, joined by Justices
`
`Thomas and Alito, and with whom Justices Kavanaugh and Barrett agreed,5 wrote:
`
`California has openly imposed more stringent regulations on religious
`institutions than on many businesses. The State’s spreadsheet
`summarizing its pandemic rules even assigns places of worship their
`own row. [For the Tier 1 regulations] applicable [at that time] in most
`of the State, California forbids any kind of indoor worship. Meanwhile,
`the State allows most retail operations to proceed indoors with 25%
`occupancy, and other businesses operate at 50% occupancy or more.
`Apparently, California is the only State in the country that has gone so
`far to ban all indoor religious services.
`
`
`
`5 Justice Barrett did not join Justice Gorsuch’s statement, but she “agree[d]
`with [that] statement, save” one issue not relevant to this appeal. South Bay II, 141
`S. Ct. at 717 (Barrett, J., joined by Kavanaugh, J., concurring in the partial grant of
`application for injunctive relief).
`
`
`
`10
`
`
`
`

`

`Id. at 717 (Statement of Gorsuch, J.) (citations omitted). Justice Gorsuch also
`
`compared indoor religious services to the “scores [that] might pack into train stations
`
`or wait in long checkout lines in the businesses the State allows to remain open.” Id.
`
`at 718. And he questioned California’s arguments about close physical proximity,
`
`even as it allowed certain businesses to permit closer physical interactions. Id. at
`
`718–19.
`
`
`
`Finally, the Court addressed Santa Clara County’s restrictions in Gateway, __
`
`S. Ct. __, 2021 WL 753575. Santa Clara County had enacted a restriction that
`
`“[p]rohibited” all indoor gatherings. As examples, Santa Clara County listed
`
`“political events, weddings, funerals, worship services, movie showings, [and]
`
`cardroom operations.” But the county imposed different restrictions for “a number
`
`of businesses and activity types, including retail stores,” which were allowed to
`
`operate at 20% capacity indoors. Gateway City Church v. Newsom, No. 20-08241,
`
`2021 WL 308606, at *4 (N.D. Cal. Jan. 29, 2021). Our court affirmed the district
`
`court’s ruling and held that this regulation, which restricted indoor gatherings in
`
`“places of worship,” “applie[d] equally to all indoor gatherings of any kind or type,
`
`whether public or private, religious or secular” because it did “not ‘single out houses
`
`of worship’ for worse treatment than secular activities.” Gateway City Church v.
`
`Newsom, 2021 WL 781981, at *1 (9th Cir. Feb. 12, 2021) (quoting Roman Catholic
`
`Diocese, 141 S. Ct. at 66). The Court rejected this reasoning, stating: “The Ninth
`
`
`
`11
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`

`

`Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by
`
`[the] Court’s decision in” South Bay II. Gateway, 2021 WL 753575, at *1.
`
`C.
`
`Reviewing this precedent, we conclude that the regulations at issue in
`
`Gateway and South Bay II, which applied total bans on indoor services at houses of
`
`worship, differ significantly from those at issue in this case. The gatherings
`
`restrictions at issue here do not impose a total ban on all indoor religious services,
`
`but instead limit private indoor and outdoor gatherings to three households. There
`
`is no indication that the State is applying the restrictions to in-home private religious
`
`gatherings any differently than to in-home private secular gatherings.
`
`“[I]f the object of a law is to infringe upon or restrict practices because of their
`
`religious motivation, the law is not neutral.” Lukumi, 508 U.S. at 533. But here, the
`
`gatherings restrictions apply equally to private religious and private secular
`
`gatherings, and there is no indication, or claim, of animus toward religious
`
`gatherings. The restrictions do not list examples of prohibited gatherings or single
`
`out
`
`religious gatherings.
`
`
`
`See Blueprint
`
`for
`
`a
`
`Safer Economy,
`
`https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/
`
`COVID-19/Dimmer-Framework-September_2020.pdf (last visited Mar. 30, 2021).
`
`Thus, the gatherings restrictions are neutral on their face. See Lukumi, 508 U.S. at
`
`533 (holding that for a law that burdens religious practice to be neutral, it must at
`
`
`
`12
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`

`

`least be neutral on its face).
`
`However, “[f]acial neutrality is not determinative.” Id. at 534.6 Instead, we
`
`must also “survey meticulously the circumstances of governmental categories” to
`
`determine whether there are “subtle departures from neutrality” or “religious
`
`gerrymander[ing],” which could indicate that the object of the law is to restrict
`
`religious practices. Id. (citations and internal quotation marks omitted). Here,
`
`Appellants have not asserted that the object of the gatherings restrictions is to restrict
`
`religious practices, and there is no indication that the restrictions were adopted for
`
`discriminatory purposes instead of addressing public health concerns.
`
`Accordingly, we must consider whether the regulations nonetheless “treat[]
`
`religious observers unequally,” and thus are not laws of general applicability. See
`
`Parents for Privacy v. Barr, 949 F.3d 1210, 1235 (9th Cir. 2020). One way to assess
`
`whether a law is selectively applicable is to determine whether the law’s restrictions
`
`“substantially underinclude non-religiously motivated conduct that might endanger
`
`the same governmental interest that the law is designed to protect.” Stormans, 794
`
`
`6 Thus, we agree with our dissenting colleague that “the fact that a restriction
`is itself phrased without reference to religion is not dispositive.” Dissent at 6.
`However, we note that, unlike in South Bay II, where California’s “spreadsheet
`summarizing its pandemic rules even assign[ed] places of worship their own row,”
`141 S. Ct. at 717 (Statement of Gorsuch, J.), the gatherings restrictions here never
`mention religion. See also Agudath Israel of Am. v. Cuomo, 979 F.3d 177, 182 (2d
`Cir. 2020) (Park, J., dissenting) (“In each zone, the order subjects only ‘houses of
`worship’ to special ‘capacity limit[s].’”).
`
`
`
`13
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`

`

`F.3d at 1079 (citing Lukumi, 508 U.S. at 542–46). “In other words, if a law pursues
`
`the government’s interest ‘only against conduct motivated by religious belief’ but
`
`fails to include in its prohibitions substantial, comparable secular conduct that would
`
`similarly threaten the government’s interest, then the law is not generally
`
`applicable.” Id. (quoting Lukumi, 508 U.S. at 545).
`
`
`
`Appellants argue that pursuant to the reasoning of Roman Catholic Diocese,
`
`South Bay II, and Gateway, the gatherings restrictions at issue in this case are
`
`underinclusive because the State applies different restrictions to commercial activity
`
`in public buildings. Appellants compare the restrictions on private gatherings to the
`
`restrictions on commercial activities in public buildings, such as train stations, malls,
`
`salons, and airports. But in Roman Catholic Diocese, South Bay II, and Gateway,
`
`the Court did not make similar comparisons. Instead, in each case in which the
`
`Supreme Court compared religious activity to commercial activity, it did so in the
`
`context of comparing public-facing houses of worship to public-facing businesses.7
`
`
`7 The dissent argues that “when California allows greater freedoms for some
`sectors, it may not leave religious activities behind” and that “the suppression of
`some comparable secular activity in a similar fashion to religious activity is not
`dispositive.” Dissent at 12, 17–18 (citing Roman Catholic Diocese, 141 S. Ct. at 73
`(Kavanagh, J., concurring). Although Justice Kavanaugh’s concurrence in Roman
`Catholic Diocese is not the controlling opinion, the dissent mischaracterizes that
`opinion. Justice Kavanaugh wrote that “under [the Supreme] Court’s precedents, it
`does not suffice for a State to point out that, as compared to houses of worship, some
`secular businesses are subject to similarly severe or even more severe restrictions.”
`Roman Catholic Diocese, 141 S. Ct. at 73 (Kavanaugh, J., concurring) (some
`
`
`
`
`14
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`
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`

`

`Because we identify the comparison applied in these cases—houses of
`
`worship compared to secular businesses—our dissenting colleague suggests that we
`
`are holding that First Amendment free exercise rights apply only in houses of
`
`worship. Dissent at 15. He misses the point. We note that in these cases the
`
`Supreme Court addressed restrictions on houses of worship—not because we are
`
`suggesting that the Constitution’s protections for the free exercise of religion apply
`
`only in houses of worship—but rather because the Court’s precedent directs us to
`
`compare restrictions on religious activities to restrictions on “analogous” secular
`
`activities. See Lukumi, 508 U.S. at 546. In its recent decisions, the Supreme Court
`
`held that restrictions subjected worship services to disparate treatment because the
`
`settings at issue were similar and subject to meaningful comparisons—houses of
`
`worship such as churches, mosques, synagogues, and temples compared to public
`
`buildings for commercial activities such as stores, malls, and other businesses.
`
`The dissent’s argument that “businesses are analogous comparators to
`
`religious practice in the pandemic context,” Dissent at 6, oversimplifies the issue
`
`here. Although the Supreme Court has compared regulation of religious activities
`
`to regulation of business activities under comparable circumstances, it has never
`
`framed
`
`its analysis
`
`in
`
`the general
`
`terms of “religious practice” and
`
`
`emphasis added). Thus, Justice Kavanaugh, in line with the controlling opinions and
`orders in Roman Catholic Diocese, South Bay II, and Gateway, compared businesses
`only to houses of worship, not to all religious activities.
`
`
`
`15
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`

`

`“businesses.” Rather, it has focused on the circumstances surrounding the regulated
`
`religious activities to determine whether those particular classes of religious activity
`
`were being treated less favorably than comparable classes of secular activity. Thus,
`
`it was essential in the recent Supreme Court decisions that the regulations in question
`
`implicated religious activity in houses of worship. See South Bay, 141 S. Ct. at 717
`
`(Roberts, C.J., concurring) (“[T]he State’s present determination—that the
`
`maximum number of adherents who can safely worship in the most cavernous
`
`cathedral is zero—appears to reflect not expertise or discretion, but instead
`
`insufficient appreciation or consideration of the interests at stake.”); Roman Catholic
`
`Diocese, 141 S. Ct. at 67 (analyzing regulations that “single out houses of worship
`
`for especially harsh treatment” and noting that “the maximum attendance at a
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`religious service could be tied to the size of the church or synagogue”).
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`Moreover, when the Court granted injunctive relief as to gathering restrictions
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`in South Bay and Harvest Rock, it did not issue a blanket injunction covering all state
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`regulation of “religious practice.” Instead, it distinguished between restrictions on
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`operating houses of worship—which were impermissible under the circumstances—
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`and capacity limitations and restrictions on “indoor singing and chanting,” which it
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`declined to enjoin because the plaintiffs had not carried their burden (at least at that
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`stage of
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`the proceedings) of showing “that
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`the State
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`is not applying
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`the . . . prohibition . . . in a generally applicable manner.” Harvest Rock Church v.
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`16
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`

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`Newsom, No. 20A137, __ S. Ct. __, 2021 WL 406257, at *1 (Feb. 5, 2021); South
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`Bay, 141 S. Ct. at 716 (“This order is without prejudice to the appellants presenting
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`new evidence to the District Court that the State is not applying the percentage
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`capacity limitations or the prohibition on singing and chanting in a generally
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`applicable manner.”).
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`By taking this approach, we absolutely do not “confine religious freedom to
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`‘free exercise zones,’” Dissent at 15, as the dissent suggests. We simply recognize
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`that the Supreme Court’s free exercise analysis—which first requires determining
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`which tier of scrutiny to apply—fundamentally turns on whether a state
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`discriminates against religious practice. In turn, to determine whether a state
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`discriminates, the Supreme Court instructs us to compare “analogous non-religious
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`conduct,” Lukumi, 508 U.S. at 546 (emphasis added), not to compare all non-
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`religious conduct. See also Roman Catholic Diocese, 141 S. Ct. at 69 (Gorsuch, J.,
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`concurring) (noting that the First “Amendment prohibits government officials from
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`treating religious exercises worse than comparable secular activities, unless they are
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`pursuing a compelling interest and using the least restrictive means available.”
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`(emphasis added)); Stormans, 794 F.3d at 1079 (describing how Lukumi requires
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`analyzing “prohibitions on substantial, comparable secular conduct that would
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`similarly threaten the government’s interest” (emphasis added)).
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`An analogy requires “[a] corresponding similarity or likeness.” Analogy,
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`
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`17
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`BLACK’S LAW DICTIONARY (11th ed. 2019). Thus, we cannot answer the question
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`of whether the state discriminates without first framing the correct comparison. And
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`not every activity is analogous to every other activity. That would empty all meaning
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`from the word “analogy.” Unsurprisingly, then, this analysis depends on the type,
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`location, and circumstances of the regulated activities.
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`Here, Appellants’ underinclusivity argument relies on a comparison of
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`gatherings in private homes to commercial activity in public buildings, and in
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`particular they point to commercial activity in large buildings such as train stations,
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`airports, and shopping malls.8 But nothing in the record supports Appellants’
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`suggestions that these commercial activities are proper comparators to in-home
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`private religious gatherings. Instead, it appears Appellants are arguing that we
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`should reach the conclusion the Supreme Court rejected when it did not enjoin
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`capacity limitations and singing restrictions in houses of worship: that any
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`restrictions that have an incidental effect on religious conduct can be appropriately
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`compared to restrictions on any secular conduct.
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`Based on the record, the district court concluded that the State reasonably
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`distinguishes in-home private gatherings from the commercial activity Appellants
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`8 Appellants also mention salons in a laundry list of indoor commercial
`activities that are not limited to three households. But Appellants do not explain
`why salons should be considered analogous secular conduct and they point to
`nothing in the record to support that comparison.
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`
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`18
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`

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`assert is comparable. For example, the district court found that the State reasonably
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`concluded that when people gather in social settings, their interactions are likely to
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`be longer than they would be in a commercial setting; that participants in a social
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`gathering are more likely to be involved in prolonged conversations; that private
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`houses are typically smaller and less ventilated than commercial establishments; and
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`that social distancing and mask-wearing are less likely in private settings and
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`enforcement is more difficult. Tandon, 2021 WL 411375, at *30. Appellants do not
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`dispute any of these findings. Therefore, we conclude that Appellants have not
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`established that strict scrutiny applies to the gatherings restrictions. Appellants do
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`not contend that the State’s restrictions fail rational basis review, and we agree with
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`the district court that the capacity restrictions likely meet that low bar. See id. at
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`*40. Therefore, Appellants have not shown a likelihood of success on the merits of
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`the free exercise claim.
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`D.
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`Our dissenting colleague apparently agrees with Appellants’ argument that
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`broadly compares private religious gatherings to secular or commercial activity,
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`although unlike Appellants he focuses on the comparison to small businesses, such
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`as barbershops and tattoo parlors. These small businesses are not subject to the
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`three-household restriction for private gatherings or the capacity restrictions that
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`apply to other businesses and to houses of worship. See Cal. Dep’t of Pub. Health,
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`
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`19
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`

`

`Blueprint
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`for a Safer Economy, https://covid19.ca.gov/safer-economy/#tier-
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`assignments (last visited Mar. 30, 2021).
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`Nonetheless, the State requires that these small businesses implement
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`extensive safety protocols, explained in a fourteen-page, single-spaced document,
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`which incorporates the Guidance on Face Coverings and therefore “requires the use
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`of face coverings for both members of the public and worker