December 22, 2020

Calvary Chapel Dayton Valley v. Sisolak, 982 F.3d 1228 (9th Cir. 2020)

Nevada’s governor declared a state of emergency and issued an emergency directive to curb the spread of the coronavirus. Retail businesses, such as restaurants and casinos, had to operate at 50% capacity; museums, movie theatres, and art galleries were limited to the lesser of 50% capacity or 50 people; but houses of worship faced a 50-person cap on “indoor in-person services.” 

Calvary Chapel sought injunctive relief, arguing the directive unconstitutionally burdened their religious expression and was not neutral or generally applicable. The district court disagreed and found that Nevada treated similar secular activities (movie theatres, etc.) the same as or worse than church services. Calvary Chapel appealed, and the Ninth Circuit reversed.

The Ninth Circuit, following the Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020), found that the directive’s treatment of houses of worship, compared to other secular activities, created a disparate treatment of religion and triggered strict scrutiny review. The court found that although slowing the spread of the coronavirus was a compelling interest, the directive was not narrowly tailored since houses of worship could have been placed under the same less restrictive limitations applied to retail businesses such as restaurants and casinos.