The Volokh Conspiracy
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Nevada Can't Impose Greater Restrictions on Churches Than on Casinos, Bowling Alleys, Etc.
So the Ninth Circuit just held this morning.
From Calvary Chapel Dayton Valley v. Sisolak, written by Judge Milan D. Smith and joined by Judges Mark Bennett and Danny Boggs (6th Cir.):
[The Nevada Governor's COVID-19 Directive] prohibits gatherings of more than fifty people "in any indoor or outdoor area[.]" More specifically, the Directive imposes limits of the lesser of 50% of fire-code capacity or 50 people in movie theaters (per screen), museums, art galleries, zoos, aquariums, trade schools, and technical schools. It prohibits public attendance at musical performances, live entertainment, concerts, competitions, sporting events, and any events with live performances.
Retail businesses, bowling alleys, arcades, non-retail outdoor venues, gyms, fitness facilities, restaurants, breweries, distilleries, wineries, and body-art and piercing facilities must cap attendance at 50% of their fire-code capacities. The Directive delegates the power to regulate casino occupancy to the Nevada Gaming Control Board, which ultimately imposed an occupancy cap of 50% of fire-code capacity, in addition to a wide variety of other restrictions and requirements.
Calvary Chapel challenges § 11 of the Directive, which imposes a fifty-person cap on "indoor in-person services" at "houses of worship." The church alleges that gathering its members in one building "is central to [its] expression of [its] faith in Jesus Christ," and the Directive unconstitutionally burdens this religious expression.
Calvary Chapel further argues that the Directive is not neutral or generally applicable because it targets, discriminates against, and shows hostility toward houses of worship … because it expressly treats at least six categories of secular assemblies better than it treats religious services[—] … casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests.
The Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), arguably represented a seismic shift in Free Exercise law, and compels the result in this case. In Roman Catholic Diocese, two houses of worship sought an injunction pending their appeal in the Second Circuit from the Supreme Court, seeking relief from an Executive Order issued by the Governor of New York that addressed the spread of COVID-19 in the state.
That order imposed "restrictions on attendance at religious services in areas classified as 'red' or 'orange' zones." In red zones, religious service attendance was capped at 10 people, and in orange zones, it was capped at 25. In both zones, however, the order provided that essential businesses could "admit as many people as they wish[ed]." The Court did not provide an exhaustive list of businesses deemed "essential," but did note that "acupuncture facilities, camp grounds, garages, … plants manufacturing chemicals and microelectronics[,] and all transportation facilities" were included. Moreover, in orange zones, even "non-essential businesses [could] decide for themselves how many persons to admit."
The Court ultimately concluded that the houses of worship had shown a likelihood of success on the merits. The challenged executive order, the Court held, "violate[d] 'the minimum requirement of neutrality' to religion." Under the Court's reasoning, the New York order was not neutral because it "single[d] out houses of worship for especially harsh treatment." For example, "a large store in Brooklyn … could literally have hundreds of people shopping there on any given day," whereas "a nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for worship service." The Court held that this "disparate treatment" of religion rendered the COVID-19 restrictions in the order not neutral or generally applicable.
Applying strict scrutiny review to the New York order, the Court held that "[s]temming the spread of COVID-19 is unquestionably a compelling interest," but concluded the challenged order was not narrowly tailored. The Court reasoned that "[n]ot only is there no evidence that the [two houses of worship] have contributed to the spread of COVID-19[,] but there were many other less restrictive rules that could be adopted to minimize the risk to those attending religious services," emphasizing that the New York restrictions are "far more severe than has been shown to be required to prevent the spread of the virus." For example, New York could have tied maximum attendance at a religious service "to the size of the church or synagogue." Because the COVID-19 restrictions in the order did not survive strict scrutiny … the Court preliminarily enjoined the "enforcement of the Governor's severe restrictions on the [houses of worship's] religious services."
The Supreme Court's decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. As a result, the restrictions in the Directive, although not identical to New York's, require attendance limitations that create the same "disparate treatment" of religion. Because "disparate treatment" of religion triggers strict scrutiny review—as it did in Roman Catholic Diocese—we will review the restrictions in the Directive under strict scrutiny….
To survive strict scrutiny review, the Directive "must be 'narrowly tailored' to serve a 'compelling' state interest." The Directive—although less restrictive in some respects than the New York regulations reviewed in Roman Catholic Diocese—is not narrowly tailored because, for example, "maximum attendance at a religious service could be tied to the size of the [house of worship]." … [T]he Directive could have, for example, imposed a limitation of 50% of fire-code capacity on houses of worship, like the limitation it imposed on retail stores and restaurants, and like the limitation the Nevada Gaming Control Board imposed on casinos…
{We respectfully join the Supreme Court in saying that members of our court "are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment's guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure."}
Note that the Supreme Court refused to issue an emergency injunction in this case in July, but that sort of refusal (without written opinion) by the Supreme Court to intercede early in the case isn't binding on the lower court.
I'm not generally a fan of the argument that, once there are any secular exceptions from any law, then the law is no longer generally applicable, and demands for religious exemption must be judged under strict scrutiny (see PDF pp. 23-30 of this brief).
But here we aren't just talking about a felt religious obligation to do things (or not do things) generally; here, we have the exercise of the right to assemble, which includes the right to assemble for religious purposes as well as political purposes. Here, I do think there should be heightened scrutiny, and the government's treating constitutionally protected assembly worse than similar but constitutionally unprotected activity in casinos and bowling alleys does strike me as likely unconstitutional. (That's not the Ninth Circuit panel's analysis, to be sure, and not the Court's analysis in Roman Catholic Diocese, but it's the reason I'm largely sympathetic to that result.)
