Free Speech

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.)

NEXT: Kidney Donations

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  1. "we should respect the judgement of those with special expertise and responsibility in this area."

    No, you shouldn't.

  2. What infuriates me is that fire code capacity is based on egress and not square footage. It's largely how many exit doors you have, how many of them exit directly to the outside, and how wide/straight your inside corridors are.

    It's based on how many people you can quickly evacuate from the venue in the event of a fire -- hence the name. It has nothing to do with how close to each other the people inside are. Nor how many cubic feet of volume there is in the venue.

    A far more reasonable standard would be persons per square foot of usable space. But that would take some intelligence on the part of the dictatorship, not to mention them wanting to work with the victims of their fiats.

    1. But they are experts!

      And science!

      1. Science-disdaining bigots are among my favorite culture war casualties.

        And the core of movement conservatism.

        1. Artie,
          You would not know real science if it smacked you in the face.

    2. That's a plausible alternative standard that would likely survive strict scrutiny review. It doesn't matter to this review, though, because some of those mega-churches have more cubic volume than the average mall. Restricting them on a mere headcount basis was irrational.

    3. Most occupant loads used to determine required egress are calculated based on the square footage using various factors depending on the use. Business is generally 1 person per 100 sq.ft. Retail is generallly 1 person per 60 sq.ft. Assembly spaces with fixed seating are calculated using the actual number of seats, in the case of benches including pews and bleachers it is generally 1 person per 18" of bench. Assembly areas without fixed seats like hotel ballrooms use 1 person per 7 sq. ft. There are others but you get the idea.

  3. Good, because we need 6 people relatively close together to perform our Satanic rituals...I love the Framers and so does the Horned One!!

    1. MIT has done a pretty careful analysis. For indoor activities at least 150 sq, ft. per person is recommended for indoor instruction

  4. The prog cult sees this situation as an easy way to get rid of rival religions.

    1. Yeah, plenty of faiths on their last legs now.

      I can't believe you even believe what you just said, you just love your dumb thesis that disagreeing with you is actually a religion.

  5. 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).

    Sure, if there is one universal standard with exceptions, but is that the case here, or do they have explicitly separate standards for houses of worship?

    I don't see how you could call the later a law of general applicability.

  6. Professor Volokh has lomg hd the view that religion is simply a kind of speech, to be analyzed pretty much the same as cases about other kinds of expression, whereas I have taken the position that religion is sui generas and gets, not just its own textual anchor, but its own analysis.

    Clearly religion has to be somewhat different. One obvious difference is that there is no obstacle to government creating its own speech, and when it acts as speaker (and pays) it can restrict participants’ messages to be in line with it ls program if they want to take its money. But it can’t do this for religion, at least not without limitations.

    The Police v. Newark framework, under which laws are not considered neutral or generally applicable if they contain exceptions for other activities, but not religion, is a mode of analysis that has so far been limited to religion cases. It exists as a narrow interpretation of Smith, under which government has no obligation to accommodate religion so long as its laws are neutral and generally applicable.

    Since Smith doesn’t really have any application outside religion, Police v. Newark doesn’t either.

    For this reason, I think this particular mode of analysis doesn’t apply to general expression, just religion.

    But we’ll see.

    1. FWIW, I wouldn't mind a form of "most favored nation" rule, where religions must be treated at least as well as the comparable secular activities. That's Justice Kavanaugh's articulated position, though I am not sure all of his votes in these cases are consistent with it.

      The Nevada case is a pretty easy case because of the casino exemption.

      1. Since virtually all regulations have exceptions, doesn't a most-favored nation standard effectively overrule Smith?

        1. No, because as long as you align religion with COMPARABLE activities, Smith applies

          1. I missed the part where you said comparable activities. However, I thought the most-favored nation standard is triggered when there is any categorical exception, comparable or not.

            1. No. You just can't treat religion any worse than something comparable.

              So if there's a limit of 10 people allowed to gather inside indoor buildings with less than a certain square footage, and the only exemptions to that rule are things that have specific secular purposes such as an emergency room at a hospital, the law can apply to religious buildings too. That's a law of general applicability, and religion is not being disfavored as compared to any comparable activity.

              But if the same rule contains an exemption for casinos as well as for emergency rooms, it now violates most favored nation.

              That, at least, is to be how it is supposed to work.

              1. Justice Kavanaugh wrote:

                when a law on its face favors or exempts some secular organizations as opposed to religious organizations, a court entertaining a constitutional challenge by the religious organizations must determine whether the State has sufficiently justified the basis for the distinction. [...] The point is not whether one or a few secular analogs are regulated. The question is whether a single secular analog is not regulated. [...] To that end, the government must articulate a sufficient justification for treating some secular organizations or individuals more favorably than religious organizations or individuals.

                I don't see anything in there about comparisons, although perhaps "a sufficient justification" involves a comparison, nor is it clear how the comparison test works (assuming Kavanagh endorses comparisons). For example, why is an emergency room not comparable while a casino is?

        2. Well in Police v. newark, the exception being compared to was a medical exception. Then-Judge Alito said that if you can allow police officers to grow a beard for medical reasons, then you have to allow them for religious reasons.

          So from its inception, I think the Police v. Newark framework pretty much said that if you except anything, you also have to except religion. And this indeed tends to make Smith very narrow in its field of application.

          What’s unusual about the Covid cases is that there’s a compelling state interest on the other side. The state’s argument is that epidemic precautions are compelling and hence trump even fundamental rights.

          But since Police v. Newark itself involved a medical exception, it could be imtdrpreted to apply even here.

          But one doesn’t have to go that far for Calvary Chapel to win. Nevada exempted casinos. Surely a state has no compelling imterest in casinos operating that’s more worthy of risking an epidemic than other things. It’s non-compelling, non-essential nature seems obvious, especially given that casino gambling is still illegal on many states.

          So a lower court could easily say that if you exempt something as obviously non-essential as casinos, you also have to exempt religion, and leave closer calls for another day.

          That’s probably the position I’d take as a lower court judge.

          1. I think Alito applied the most-favored nation standard in Police v Newark which in my view misinterprets Smith and Lukumi.

            Deciding this, or any other case, on narrow grounds that avoid the larger question is how Roberts often approaches cases. But now, the other five conservatives can gut Smith without Roberts' approval.

          2. I would argue that Alito is misapplying his own standard.

    2. Religion involves activities like Catholics taking Mass or Muslims slaughtering infidels or Southern Baptist men watching young hot dudes hump their wives or the original Mormons practicing polygamy (and when the Federal government tried to force them to practice monogamy they moved to a country which would allow them to exercise their religion properly as God intended).

  7. I'm not sure if it goes far enough -- but it is a good start and bodes well for the near future.

    Outside of protecting the rights of individuals (stopping honor killing; enforcing sexual batter laws, etc...) I am not sure that the Free Exercise clause allows for much governmental regulation at all.

    The anti-religious double standard is pretty obvious, that 4 justices could not see that is depressing.

    1. One paradox in this is that religion is generally thought to be spiritual in nature and generally having to do with some form of deity, but there are plenty of belief systems that don't have those aspects but are held with similar conviction by their adherents, like socialism, fascism, Marxism, communism, and nationalism.

  8. > we have the exercise of the right to assemble, which includes the right to assemble for religious purposes as well as political purposes.

    I've been wondering about that. Why doesn't "the right of the people peaceably to assemble" override all of the anti-gathering rules? The only answer that I come up with - which I'm not happy with - is that it's qualified by the petition-for-redress clause, that the only assemblies that are protected are those that are for the purpose of petitioning for redress.

    Maybe the government could shut down a restaurant under its general ability to regulate businesses, but if right-to-assemble is a general right how could they ever claim to regulate who I have over for dinner?

    1. Why doesn’t “the right of the people peaceably to assemble” override all of the anti-gathering rules?

      The same reason why a gathering of terrorists where they plot to bomb a federal building isn't covered by the Free Speech clause.

    2. Perhaps you aren't peaceably assembling when you might unknowingly infect someone else?

      Having someone over for dinner might be covered by the right of intimate association?

    3. Of course, Mayor DeBlasio did take the position that BLM demonstrations , being for progressive political purposes, should and did have more privileges than dweeb religious gatherings. Not sure how Prof. volokh feels about the Blaz analysis.

    4. No, the reason the “right of the people to peaceably assemble” isn’t really an enforceable right is because it’s a collective right not an individual right. The phrase “the right of the people” is a term of art meaning approved by the government. So when you see “the right of the people” in association with the right of peaceable assembly it means government sponsored rallies, just as the “the right of the people” to keep and bear arms only applies to the police and military.

    5. Because the government's own courts have subjected every enumerated right to an unspoken, "Unless violating it looks like a good idea!" exception.

      1. Yeah, that's been the case since the late 1700s.

        Almost as though it is expected and/or required for a functioning society.

        The idea of rights as 100% inviolate until you think about it for like one second.

        Time place and manner restrictions on speech are a great example of what your lack of nuance would eviscerate.

        1. You know what? You're born dying. It just takes a few decades.

          Constitutions are no different.

  9. The two biggest issue with churches besides the crowding are
    - singing, which is an especially dangerous thing during COVID
    - physical ceremonies like Communion for some denominations (The evangelical protestant church I attend has been meeting over video-conferencing since March, and the Catholics I know have some accommodation for Mass they've worked out so it's not really a doctrinal problem for them - this is hardly the first Plague they've had to cope with in the last few millennia.)

    Sure, if you want to be content-neutral, you've also got to shut down concerts, country music bars and karaoke, and bars/restaurants where people sing traditional music. The monthly music jam at my local German restaurant also moved online in March (mostly singing with accordions), the Irish session was instrumental-only (because otherwise drunk people sing Danny Boy at us badly, but still closed), the science fiction folks moved online.

    There were two weeks when my church was allowed to reopen before the county shut down again - the health guidelines were some low occupancy percent and no live music. (We watched from home.) But Christianity teaches in favor of healing the sick, and is opposed to sickening the healthy.

    1. Singing can and is done with masks.

    2. Forbidding group singing at all facilities would be a good step, but I don't know of any US jurisdiction that has done it. Instead, they seem to prefer saying "you can't have more than X people worshiping at a time, regardless of the size of your space," and when challenged, say "um, because we're worried you might sing."

      (I don't know if you have to forbid a soloist from performing at a significant distance from someone else, or maybe put them in a separate room).

  10. The casino exception made this case seem somewhat of an outlier on its way up to the Supreme Court. While in general I was inclined to accept Chief Justice Roberts’ view that states should get an evidentiary hearing and not have emergency health regulation struck down at the preliminary injunction stage, the fact that casinos more resemble churches than many other businesses in being large crowded halls where people linger for a long time, together with the fact that gambling is illegal in many states, frowned on, and hardly something most people would consider essential to life, made this case seem an easier call than some others. If you can make an exception for casinos, surely you can make one for churches.

    So if Roman Catholic Dioces wins its case, as it did, than Calvary Chapel should definitely win its.

  11. you can play online. and you can also pray at home on your own. but people don't like that. not very clear why ..

    1. If restrictions are imposed, then people can play in online casinos like this: . There are a large number of games here, so they will definitely not be bored. They will be able to play both one-on-one with the computer and against each other. Therefore, there can be even more entertainment.

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