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Ninth Circuit Rules for Calvary Chapel, Calls Diocese Case "Seismic Shift in Free Exercise Law" (Updated)

The panel instructed the district court to "preliminarily enjoin the State from imposing attendance limitations on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity."

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In July, the Court ruled against Calvary Chapel, a church in Nevada. The unsigned opinion, which split 5-4, did not offer any analysis. Presumably, Chief Justice Roberts was willing to quietly stand by his South Bay concurrence. And the other four couldn't be bothered to reply to the excellent dissent from Justice Kavanaugh. Well, four become three, and blue Monday shifted to red Thursday. After DioceseSouth Bay was no more.

Now, the lower courts have begun to shift the jurisprudence. The Sixth Circuit recently buried South Bay, though the Court distinguished Diocese in an unpersuasive fashion.

Today, the Ninth Circuit has joined the fray. A three-judge panel has ruled in favor of Calvary Chapel church. (My former boss, Judge Danny Boggs of the Sixth Circuit, was sitting by designation on the Ninth). The panel found that Diocese "arguably represented a seismic shift in Free Exercise law, and compels the result in this case." This case came out one way under South Bay, and came out the opposite way under Diocese.

Here is the crux of the Court's analysis:

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. Id. at *2. 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.

Remember, Chief Justice Roberts would limit comparison's to "comparable secular gatherings." But Diocese dropped the "comparable" requirement. If any secular gatherings are treated more favorably, strict scrutiny is triggered. The per curiam opinion didn't quite adopt Justice Kavanaugh's "most favored right" framework, but it is difficult to read the case any other way. Here, the Ninth Circuit compared houses of worship to some pretty dissimilar businesses: "Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities." Because those secular gathering places were subject to a different regime, the state had the burden to justify that disparate treatment.

Here, Nevada was unable to satisfy the rigors of strict scrutiny. Specifically, the state could achieve its interest through more narrowly tailored means. The court explained that Nevada could drop the hard cap, and restrict attendance at houses of worship to a certain percentage of the occupancy limit.

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]." Id. In other words, instead of a fifty-person cap, the 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. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.

Ultimately, the panel did not grant an injunction pending appeal. It "instructed" the District Court to enjoin the regulations.

Accordingly, we reverse the district court, instruct the district court to employ strict scrutiny review to its analysis of the Directive, and preliminarily enjoin the State from imposing attendance limitations on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity. The district court may modify this preliminary injunctive relief, consistent with this opinion and general equitable principles. See Winter, 555 U.S. at 20. We encourage the district court to act expeditiously in connection with any such modification.

This move was savvy. Nevada can't credibly seek a Supreme Court stay, because there is no injunction in place. I am not sure if the Ninth Circuit rules permit a petition for rehearing en banc here. Again, I think such a petition is premature because the District Court has not yet ruled. In theory, at least, the District Court could deny an injunction. And therein lies the rub. If the District Court decides to deny relief, the panel could swoop in with an injunction pending appeal. Your move District Court. "Act expeditiously."

Or Nevada could consent to a 25% limitation, and avoid further litigation. This latter path would be better.

Update: I misread the relief paragraph. The serial comma strikes again. The panel entered three remedies: (1) reverse the lower court, (2) enter an injunction pending appeal, and (3) instruct the district court to use strict scrutiny fo the future. The third step seemed obvious in light of the panel's analysis. Thus, I thought the instructions concerned how to rule on the request for injunctive relief. Mea culpa.

NEXT: Nevada Can't Impose Greater Restrictions on Churches Than on Casinos, Bowling Alleys, Etc.

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76 responses to “Ninth Circuit Rules for Calvary Chapel, Calls Diocese Case "Seismic Shift in Free Exercise Law" (Updated)

  1. Why do you keep calling the case you’re talking about “Diocese”? Wouldn’t the normal short version be something like “Roman Catholic Diocese” (which is that the Ninth Circuit opinion uses)?

    1. Don’t you get tired of nitpicking because you don’t like Blackman?

      Its tedious.

      1. I could comment on the poetic justice of that plight, but in this case I’m genuinely (if morbidly) curious about his thought process.

      2. I generally like Blackman’s posts, but I had the same question. A diocese is simply the area to which some particular bishop can be assigned. It’s not a proper name. Even “Roman Catholic Diocese” is not specific without the context of knowing it refers to a COVID-related federal court case; there are 144 of them in the US, plus 32 archdioceses (where an archbishop is appointed).

  2. This is a good decision, and important for religious freedom.

    Infringements on fundamental Constitutional Rights should trigger strict scrutiny

    1. Why stop at free exercise of religion? I mean, there are plenty of other enumerated individual rights that are currently being suppressed without a strict scrutiny standard applied.

      1. Its a good start, but yes it should apply to other ones too.

        Thank you President Trump!

      2. Not to mention that the levels of scrutiny are badly named. “Rational” basis is more like “Not chewing on the furniture” basis, the basis isn’t actually required to be rational, just not starkly insane. Strict scrutiny actually requires the violation to be rational. And is there even a level of scrutiny that just flatly require compliance, never mind any excuses?

  3. >I am not sure if the Ninth Circuit rules permit a petition for rehearing en banc here. Again, I think such a petition is premature because the District Court has not yet ruled.

    Classic Blackman. “I don’t know what I’m talking about, and I can’t take the time to learn… the people need my takes!”

  4. Calvary Chapel may be “a church in Nevada”, but there are a chain of such churches around the country, some of them “mega-churches”. When I lived in south Florida, Calvary Chapel was the biggest church in town (an independent Presbyterian church was a close second). My barber was a member of the Chapel, and I asked her why it was so popular. She said because they preach the Word of God. I’m not a “fundamentalist” myself — more of a C.S. Lewis “Mere Christian” — but I guess these days it takes a pretty big non-establishment church to challenge the political establishment, so Bravo Calvary Chapel!

    [BTW Josh, I didn’t know you clerked for Danny Boggs. Danny and I were classmates at Harvard. He was First VP of the Republican Club when I was President (1964-65) — no question of where the brains were in that team! A great guy and a terrific judge.]

  5. Not a snarky question – given that there is good evidence that singing is a great way to spread the virus, and given that none of the secular activities that were favored over religious services involved singing, would a ban on singing in church – or generally in indoor places where people gather – pass muster under strict scrutiny?

    1. Not a snarky question but what is the good evidence that singing with a face mask spreads the virus?

      1. Bingo. There is little evidence it does of course, especially of the scientific kind.

      2. Do people in choirs really sing with face masks? That seems like an extraordinarily difficult thing to do. (Well, to do well, that is.)

        Here in California, the few news reports that showed people singing in church did not show anyone wearing masks. But if churchgoers are satisfied singing while wearing masks, then it’s a great compromise…allow religious expression while minimizing risk of infecting others.

        1. Santa,
          Actually yes. Some highly talented choirs are singing with masks.

          1. Santa,
            For example the Gentleman’s choir of St Thomas on Fifth Avenue.
            https://www.saintthomaschurch.org/events/fall-winter-2020-solemn-eucharist-solemn-eucharist-2020-12-13/

            You’ll have to slide through the webcast to see the choir members

    2. I agree about the singing, also public consumption of alcohol enhances spread of the disease. But the restrictions would have to apply to the behavior of the people not to the type of institution.

      I have sympathy for governors who are pressed to invent restrictions so fast that they can’t take the time to do it right. But we can’t forgive civil rights violations because the violator was in a hurry.

    3. I think if the government banned singing, chanting, etc. at large gatherings (however that is defined), that would not even trigger strict scrutiny, but if it did, I tend to believe it would pass.

      1. Singing can be done with a mask. The government could ban loud talking also

    4. People in gyms tend to breathe pretty heavy as well, and often shout as they lift. People in adult movie theaters also tend to breathe heavily, so I’ve heard.

  6. I think the comparison to secular activities, comparable or otherwise, sort of misses the point. The issue isn’t whether some regulation affects religious activity more than some secular activities; the question is whether the regulation specifically targets religious activity. If that is the case, then the regulation is not neutral, even on its face, and strict scrutiny applies. Perhaps I’m missing something in some of these cases (in which case, I invite correction), but these regulations all seem to target religious gatherings or “houses of worship” by name.

    1. Yes. That is why Smith does not save them. That is one of the holdings of the Supreme Court’s decision in teh Diocese case.

    2. Houses of worship are explicitly named because they are afforded looser restrictions that many secular places. But even if the tightest restrictions applied, how would they know if the regulations did not mention them by name (I’ve never seen a regulation of the form, “and all places not mentioned …”).

    3. Yes, that’s the stance that the Court abruptly took in Employment Division, resulting in the RFRA being adopted by Congress near unanimously. (Voice vote in House, 97-3 in the Senate.)

      Then the Court doubled down by largely striking the RFRA down.

      But it’s not how the Supreme court really treats rights it likes.

  7. It’s a Christmas miracle!!!

  8. Nevada screwed itself by exempting casinos from its rules.

    1. You might say the law came up snake-eyes.

    2. Probably true. But my very limited experience in Las Vegas suggests that at least the newer casinos have some pretty impressive air filtration systems, judging by how well they can deal with cigarette smoke and odor. Your mileage may vary, of course.

      1. Having lived in Vegas for some time, one of the biggest tools in that fight against smoke is a device we referred to as a “smoke eater” which was just a big filter than used ions or somesuch to trap smoke particles. It did not, as far as I understand, filter anything small enough to catch a virus. While I am not a virologist (or a medical professional of any kind), I’m pretty certain you’d either need a HEPA style filter or vent large amounts of air outside. Given that Vegas gets below freezing in the Winter and above “frying” in the Summer, this isn’t going to work.
        At which point, you might consider total air volume (dilution) as a factor but that’s not a practical way to write a health regulation under these circumstances.

  9. When young Americans think of religion, what do they think of first?

    Is it the lethal recklessness during a pandemic?

    Is it the bigotry of the obsolete gay-bashers?

    Is it the childish disdain of science, the freeloading, or the hypocrisy of the religious right?

    In any event, the conduct of religious Americans seems to be ensuring the continuing decline of religion in America (educated, modern, accomplished America in particular).

    1. Fake post. “Clinger” not mentioned once. Although what the Rev. has against cross dressers is beyond me.

      1. Arthur’s NPC must be having spasms. Perhaps he needs to reboot it.

    2. Rev, when you think of the Falun Gong being persecuted in China, what do you think of?

      1. I do not like it.

    3. Kirkland, I think of going to a Midnight Christmas Eve service in the snow — and driving home later with a loved one.

      You asked, I answered….

      1. You scored at Christmas Eve service? You got game, brother.

      2. My point related to young, educated, modern Americans and their observations with respect to organized religion.

        A number of old conservatives continue to attend religious services, but that appears to have relatively little influence on America’s future.

    4. It is not the position of Rev Kirkland to disdain ALL religion, his religion is self idolization and paganistic.

      1. If religion brings comfort to someone or inclines a person toward doing so good, that is a positive.

        If religion precipitates bigotry or backwardness, that is bad. Bigotry is not improved by a cloak of superstition.

        Overall, in the spirit of a holiday season, I make organized religion roughly a wash.

        The freeloading doesn’t help.

        In any event, competent adults neither advance nor accept supernaturally based arguments in reasoned debate, particularly with respect to public affairs. People are and should be entitled to believe as they wish, but superstition-based arguments do not deserve respect from people older than 12 or so.

  10. Something something and let God sort them out.

    1. Are you soliciting suggestions for a starting point?

      I have a little list.
      They never will be missed.

    2. Or how about — “come to our casino. You have as much chance of winning as you do of contracting COVID-19 and dying. And our government has even blessed us!”

      Oh wait, mocking casinos is not as snarky as mocking religion. I mean tearing down religion is one thing, but leave my one-armed bandit alone! Didn’t our founding fathers rally to the cry of “Give me slot machines, or give me death!”

      1. “More jackpots than COVID deaths! (Offer valid for a limited time.)” would be a great marketing slogan for them.

      2. I’d love to see the indemnification clause in the hotel registration agreement: if you catch COVID in the casino and die, it’s not our fault.

  11. The Free Exercise Clause is the new Liberty of Contract. A conservative legal doctrine that can be used to strike down state laws when the courts don’t like the policy. And around we go.

    1. Yes. How dare those conservatives make up a doctrine like Free Exercise of Religion. It’s not like the Constitution was amended with express language to recognize that right.

      What will those dastardly conservatives do next? Make up something like Free Speech?

      1. From >a href=”https://www.supremecourt.gov/DocketPDF/19/19-123/144677/20200602140011707_19-123%20Amicus%20Brief%20Professor%20Volokh.pdf”>Eugene’s Fulton amicus brief:

        The lesson of the early 1900s substantive due process experience is that—outside certain narrow areas—the final calls on what constitutes “liberty” and on when exercise of liberty unduly harms others must therefore be made through the political process. Liberty writ large may not be enforced by judges as a matter of constitutional command.

        The Free Exercise Clause should therefore not protect claims of liberty of action, grounded solely in the religious motivation for one’s actions, against the considered judgment of the democratic process.

        1. I’d say the real problem is that “the considered judgment of the democratic process” is given too much reach in general. But his approach to explicitly enumerated civil liberties really doesn’t take them very seriously, does it?

        2. The link is not working, so I cannot see the full context of his argument. But in a word, it is nuts. On that theory, state government could shut down houses of worship completely and permanently. Ditto religious and other private schools. \

          Not to mention that in this context, his invocation of “the political process” is inapt. The early 1900s cases dealt with legislation, passed with the normal legislative process, and by representatives directly answerable to the voters. The current cases deal with executive orders issued on the fly in an emergency. The only legislative process that has been done is some law that says, “In an emergency, the governnor can do what he wants.” This process is far less democratic, and far more prone to abuse, than for ordinary legislation.

          1. Here is the corrected link.

            Eugene argues that religious services are protected by assembly rights without regard to the fact they are religious in nature, which insures the state can’t shut down houses of worship. I’m fairly certain Eugene believes schools can be shut down, so long as private, religious and public schools are treated the same. That makes sense to me.

            The issue of executive orders is separate from free exercise rights. If governors have overstepped their legal authority, free exercise doctrine should not be changed as a result.

  12. The people who enacted our Bill of Rights thought that the exercise of religion was (a) important and (b) a possible target of government subsidy or repression (both bad). It seems to me that recent events prove that the founders were correct on both counts, This shouldn’t be hard to understand.

    1. Technically, the Bill of Rights was enacted by people at a time when several states had established churches, which they didn’t want the new federal government either competing or interfering with. So I think you’re misrepresenting their attitude a bit.

      1. Hush now. We’re supposed to ignore that the First Amendment wasn’t supposed to apply to the states, and instead imagine what the drafters of the 14th Amendment imagined the drafters of the First Amendment would have thought if they’d wanted the First Amendment to apply to the states (which they explicitly did not).

        And we’re also supposed to imagine that we’re perfect in our ability to imagine correctly, and that anyone that disagrees with our imaginings is a bad faith actor who should be summarily ignored.

        1. “and instead imagine what the drafters of the 14th Amendment imagined the drafters of the First Amendment would have thought if they’d wanted the First Amendment to apply to the states (which they explicitly did not).”

          I have to say, I didn’t get that impression from the Congressional debates.

          “Mr. Howard. The first clause of this section relates to the privileges and immunities of citizens of the United States as such, and as distinguished from all other persons not citizens of the United States.

          It would be a curious question to solve what are the privileges and immunities of citizens of each of the States in the several States. I do not propose to go at any length into that question at this time. It would be a somewhat barren discussion. But it is certain the clause was inserted in the Constitution for some good purpose. It has in view some results beneficial to the citizens of the several States, or it would not be found there; yet I am not aware that the Supreme Court have ever undertaken to define either the nature or extent of the privileges and immunities thus guaranteed. Indeed, if my recollection serves me, that court, on a certain occasion not many years since, when this question seemed to present itself to them, very modestly declined to go into a definition of them, leaving questions arising under the clause to be discussed and adjudicated when they should happen practically to arise. But we may gather some intimation of what probably will be the opinion of the judiciary by referring to a case adjudged many years ago in one of the circuit courts of the United States by Judge Washington: and I will trouble the Senate but for a moment by reading what that very learned and excellent judge says about these privileges and immunities of the citizens of each State in the several States. It is the case of Corfield v. Coryell.

          Such is the character of the privileges and immunities spoken of in the second section of the fourth article of the Constitution. To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of the people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all the people; the right to keep and to bear arms; the right to be exempted from the quartering of soldiers in a house without the consent of the owner; the right to be exempt from unreasonable searches and seizures, and from any search or seizure except by virtue of a warrant issued upon a formal oath or affidavit: the right of an accused person to be informed of the nature of the accusation against him, and his right to be tried by an impartial jury of the vicinage; and also the right to be secure against excessive bail and against cruel and unusual punishments.”

          “The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”

          So, yes, the 14th amendment was certainly intended to impose upon the states the constraints the 1st amendment had imposed on the federal government.

          1. Thank you, Bellmore, for proving my last sentence.

            1. I was merely quoting what at least one of the explicitly said.

              1. “Merely”. Dude whips out 512 word quote that he just so happens to carry in his back pocket, and he meekly toes the dirt, bashes his doe-like eyes, and goes “gee gosh, mister, I was merely […]”

                It’s such a cute act.

                But no. You also proved my point.

                1. Then I don’t understand your point, unless maybe it’s ironically self-referential. But then you’d be the one proving your own point.

                  “We’re supposed to ignore that the First Amendment wasn’t supposed to apply to the states, and instead imagine what the drafters of the 14th Amendment imagined the drafters of the First Amendment would have thought if they’d wanted the First Amendment to apply to the states (which they explicitly did not).”

                  The first amendment wasn’t, (Past tense!) supposed to apply to the states. This is clearly the case.

                  Part of the purpose of the 14th amendment was to change this. That’s what amendments do, they change things.

                  And I provided a quote demonstrating that they, or some of them, explicitly DID want the 1st amendment to apply to the states.

                  Why did I have it on tap? Because I HAVE read those debates, so I was aware you were wrong about their intent.

  13. At the root of the decision is a tacit assumption that a court is empowered to assess the degree of necessity for emergency powers. John Marshall thought not.

  14. When your world view and culture bubble views religious people as intellectually inferior and religion as a whole as mere superstition, treating churches equal is more of a shock to the system. This elitist intolerant view deems religion and religious people as deplorable clingers who have a communicable disease. Sad that they can not see their hypocrisy.

    1. Churches should be treated equally. They crave special treatment, however.

      What is the difference between “mere superstition” and “superstition?”

      1. Every institution should be extended enough liberty that churches shouldn’t NEED special treatment. But we live in a country that’s gradually turning into a police state, and as liberty generally declines, the enumerated islands that are the last to go tend to stand out a bit and draw hostile attention from our aspiring masters.

  15. Nice to see Christian identity politics is finding a home in the party that continually inveighs against identity politics and systematic bias.

    1. They are going to cling to it until the bitter end. They’re clingers. Clinging is what they do.

      1. Kind of like Marxists. No matter how many times their theory has shown to be both an economic failure and resulting in tyranny, they insist that they are right.

        Almost like a secular religion.

    2. Your evidence for that? Federal courts following Supreme Court precedent?

      1. The persecution paranoia in the comments here.

        Replace it with black and you get something indistinguishable from the critical theory-est online wokesters.

  16. One thing that makes Cavalry chapel different from some other cases is the special Nevada exception for casinos, which seem both more like churches in their virus-spreading properties than some other businesses, and also, since gambling has traditionally been illegal and frowned on, seem an especially hard sell at describing as compellingly necessary.

    For this reason, it seemed to me that Cavalry Chapel had a better case than Roman Catholic Diocese did. So if Roman Catholic Diocese won, Cavalry Chapel should definitely win.

    1. “seem an especially hard sell at describing as compellingly necessary”

      You mean roulette is not one of the three necessities of life? It’s right there in the Nevada Bill of Rights. Along with blackjack and slots.

    2. At first blush, I agree. And, Cavalry can win without any change in free exercise doctrine, let alone a “seismic shift.”

  17. At this rate, enforcing fire codes against a church is going to be illegal in five years.

    1. Only if the fire codes explicitly treat churches differently from other similar venues such as movie theaters or conference centers.

      1. Or treats them similarly. You forgot that part.

      2. From the OP:

        Remember, Chief Justice Roberts would limit comparison’s to “comparable secular gatherings.” But Diocese dropped the “comparable” requirement. If any secular gatherings are treated more favorably, strict scrutiny is triggered.

        If you meant “similar” to mean “comparable,” then it seems like no, not “only if” but rather “regardless.” And this was EscherEnigma’s point as I took it.

        While I think Nevada overstepped and the church is in the right in this case, I believe churches should be treated similarly to secular activities/organizations and not as something special. A church is like a movie theater, a playhouse, or even a restaurant as it exposes people to COVID but it is not like retail. Risk is a function of time and you don’t spend over an hour seated in one place in close proximity to other people at your local 7-11.

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