Ninth Circuit Blocks Covid Capacity Limits on Nevada Churches

(CN) — Citing a recent precedent set by a Supreme Court reshaped by President Donald Trump, the Ninth Circuit on Tuesday blocked Nevada from enforcing Covid-19 restrictions on churches that are stricter than those imposed on casinos and other businesses.

A unanimous three-judge Ninth Circuit panel, borrowing the same reasoning laid out in the high court’s Nov. 27 ruling on New York’s Covid-19 limits for houses of worship, ordered Democratic Nevada Governor Steve Sisolak to stop imposing attendance limits stricter than 25% building capacity on religious services.

Calvary Chapel Dayton Valley, a rural church east of Reno, argued that the state treated religious services less favorably than casinos, gyms, restaurants and other businesses that are subject to different sets of restrictions.

The Ninth Circuit and Supreme Court previously denied the church’s request for an emergency injunction to halt the state’s Covid-19 rules for houses of worship. On July 24, Chief Justice John Roberts sided with the court’s then-four liberal justices against the emergency petition. But that was before liberal icon Justice Ruth Bader Ginsberg died in late September and was replaced by Trump’s reliably conservative pick, Seventh Circuit Judge Amy Coney Barret.

In one of her first major votes on the high court, Barret sided with four conservative justices on Nov. 27 to bar enforcement of New York’s attendance limits for churches and synagogues in areas hit hard by the novel coronavirus. The majority found the rules, which placed stricter limits on religious services than businesses like grocery stores, “single out houses of worship for especially harsh treatment.” Chief Justice Roberts, a George W. Bush appointee, joined the court’s three liberal justices in dissent.

On Tuesday, a Ninth Circuit panel adopted that logic in an 11-page opinion blocking enforcement of Nevada’s Covid-19 limits for indoor religious services.

“Just like the New York restrictions, the directive treats numerous secular activities and entities significantly better than religious worship services,” U.S. Circuit Judge Milan Smith, a George W. Bush appointee, wrote for the panel.

The panel acknowledged that Nevada’s rules, which imposed a 50-person cap on indoor religious services, were less strict than New York’s limits, which capped church attendance at 10 people in “red zone” areas with high rates of Covid-19 cases and hospitalizations.

Nevertheless, the panel found both sets of rules imposed stricter limits on religious services compared to businesses like casinos, gyms, restaurants and retail stores, which were capped at 50% of fire-code capacity in Nevada.

The panel noted the state could have tied attendance limits for houses of worship to building capacity as it did for other establishments, but instead chose to impose a different standard on religious services.

That “disparate treatment” triggered a higher standard of review, or strict scrutiny, of the attendance limits for churches and their compliance with the First Amendment right to free exercise of religion. Under that microscope, the panel concluded the rules meant to further a legitimate governmental aim — to curb the spread of the virus — went too far.

“Though slowing the spread of Covid-19 is a compelling interest, the directive is not narrowly tailored to serve that interest,” Smith wrote.

U.S. Circuit Judge Mark Bennett, a Trump appointee, and Senior U.S. Circuit Judge Danny Boggs, a Ronald Reagan appointee sitting by designation from the Sixth Circuit, joined Smith on the panel.

Calvary Church’s attorney, David Cortman of Alliance Defending Freedom, called the Ninth Circuit’s ruling a “significant win” in a statement Tuesday.

“There is no constitutional right to gamble, but there is one that protects attending worship services,” Cortman said. “Today, the Ninth Circuit made clear that, at a minimum, Calvary Chapel Dayton Valley can’t be treated more harshly than Nevada’s casinos, bowling alleys, retail businesses, restaurants, and arcades. Such disparate treatment is both illogical and unconstitutional.”

A spokeswoman for Nevada Attorney General Aaron Ford’s office said by email that the appeals court’s decision mostly aligns with the state’s current Covid-19 limits for indoor religious services, which caps attendance at 25% of building capacity.

“The only change is the removal of a total capacity limit for larger institutions,” spokeswoman Monica Moazez said. “We look forward to continuing to work with the community, including faith leaders, to limit the spread of this terrible virus."

The Nevada AG’s Office has not yet decided whether it will appeal the Ninth Circuit’s decision, she added.

Follow @NicholasIovino

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