Court reverses order on pandemic restrictions at Nevada churches

“This is a victory for churches in Nevada,” said the Rev. Jimmy Morales, senior pastor at Calvary Chapel Lone Mountain. “We’re excited that churches in Nevada have been set free to worship God freely.”

Along with Morales’ Las Vegas chapter, the church’s Dayton location in Lyon County challenged Sisolak’s 50-person limit on places of worship, arguing that the governor imposed tougher restrictions on religion than on most businesses in Nevada. The 9th U.S. Circuit Court of Appeals, based in San Francisco, ruled in the churches’ favor on Tuesday.

Sisolak said in a statement that he was disappointed by the decision. His office also said he continues to recommend that faith leaders limit services to gatherings of no more than 50 people “during this dangerous stretch of the pandemic.”

In reversing the governor’s restrictions, and allowing up to 25 percent capacity at churches, the appellate court relied heavily on a recent U.S. Supreme Court ruling in a New York case, known as Roman Catholic Diocese of Brooklyn v. Cuomo.

In an 11-page decision, 9th Circuit Judge Milan Smith called the Supreme Court opinion a “seismic shift in Free Exercise law.” The high court on Tuesday also ruled in favor of a Colorado church that objected to capacity limits.

“The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court,” Smith wrote. “Just like the New York restrictions, (Sisolak’s) 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 percent of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.”

In June, U.S. District Judge Richard Boulware denied a request from Calvary Chapel to reopen at 50 percent capacity. The church appealed to the 9th Circuit, arguing that the restrictions on religious gatherings violated church members’ First Amendment rights.

Tuesday’s decision prohibits the state from “imposing attendance limitations on in-person services in houses of worship that are less favorable than 25 percent of the fire-code capacity.”

Attorney Sigal Chattah, who represents the church’s Las Vegas location, said the ruling meant that 25 percent of the church’s capacity could attend a service the next day.

“The 9th Circuit has spoken during this holy period and has found that the free exercise of religion still lives loudly in all of us and is above random and arbitrary gubernatorial orders,” Chattah said.

Governor’s statement

In his statement Tuesday, Sisolak said: “While we’re disappointed by the Court’s decision, we respect and will comply with this Order. I continue to encourage Nevadans to practice their religious faiths in a manner that is safe for them and their families, particularly with the upcoming holidays.”

Morales said his church has a capacity of 786, and he expected to reach 25 percent capacity by Sunday, if not Wednesday.

“When the governor comes out and says that somehow singing in a church is more dangerous than cheering in a casino, you can’t say we’re treated equally,” Morales said. “I’m so fed up with the abuse of our First Amendment rights, while simultaneously, he is vowing for people’s First Amendment right to protest. I know he wants to keep people safe, but he has no business sticking his nose in the church.”

Alliance Defending Freedom attorney David Cortman, who represents the Lyon County church, said the capacity there is 200 people.

“This is a significant win,” the Washington-based group wrote in a statement. “There is no constitutional right to gamble, but there is one that protects attending worship services. The government has a duty to respect the First Amendment, so it can’t single out churches for harsher treatment than secular activities.”

Nevada’s houses of worship reopened in the spring after Sisolak limited attendance to 50 people with social distancing, while allowing casinos and other businesses to operate at 50 percent of normal capacity.

Last week, Deputy Solicitor General Craig Newby argued before a 9th Circuit panel that there was a heightened risk associated with religious services and suggested parishioners could gather outdoors in Nevada.

Morales said church leaders attempted a drive-in service but could not find a location. He said he asks parishioners to wear masks in the church’s hallway and lobby, but he allows them to remove masks once they are seated or singing. He tells anyone who feels sick to stay home.

While some members had tested positive, Morales said he was unaware of an outbreak tied to the church.

“We don’t want to see people dying over this, but by and large people need to be able to come together and worship,” the pastor said. “The difference between me and Gov. Sisolak is that I assume my congregation has a brain, and they know when they’re in danger and when they’re not. They don’t need someone to dictate to them when they’re healthy.”

Public gatherings were temporarily allowed to increase to 250 people, but last month, Sisolak issued another directive that limited capacity to 50 people, or 25 percent at restaurants, bars, gyms and other businesses.

‘Irreparable harm’

The appellate court found that lawyers for the churches had successfully shown that a 50-person occupancy limitation “will cause irreparable harm, and that the issuance of an injunction is in the public interest.” The court also acknowledged the public interest in slowing the spread of the virus that had left nearly 2,600 people dead in Nevada as of Tuesday.

Smith wrote that Sisolak “could restore the Directive’s restrictions just as easily as he replaced them, or impose even more severe restrictions,” but the judge emphasized that all subsequent directives “are subject to the same principles outlined in this opinion.”

The Nevada attorney general’s office said it had not decided whether to appeal the ruling, and it released the following statement Tuesday:

“Our office recognizes that Directives issued during this pandemic seek to balance the interests of constitutional rights and public health and safety. While the Supreme Court of the United States previously agreed with Nevada’s approach, subsequent case law and the Ninth Circuit have taken a different path. Importantly, the Court’s Order largely aligns with current restrictions in place for religious institutions, limiting capacity to 25% occupancy and social distancing requirements. The only change is the removal of a total capacity limit for larger institutions. We look forward to continuing to work with the community, including faith leaders, to limit the spread of this terrible virus.”

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Follow @randompoker on Twitter.