Churches’ lawyers challenge 50-person occupancy limit due to COVID-19

Lawyers for two Nevada churches argued before the 9th U.S. Circuit Court of Appeals on Tuesday that Gov. Steve Sisolak has arbitrarily ordered tougher COVID-19 restrictions on places of worship than most businesses in the state.

“You could go watch a football game in a bar, and be in a bar eating, drinking, smoking — because, mind you, Nevada still has smoking in bars — and be there for two-and-a-half hours,watching a football game, but you can’t go to church,” Las Vegas attorney Sigal Chattah, who represents Calvary Chapel’s Lone Mountain location, told a three-judge panel. “And I will present to the court that Calvary services are a lot shorter than football games.”

The Las Vegas chapter and the church’s Dayton location in Lyon County have challenged Sisolak’s 50-person limit on places of worship, upheld by a lower court judge earlier this year.

Deputy Solicitor General Craig Newby, who represents the state, argued in the hearing conducted in a video conference that there is a heightened risk associated with religious services.

“This assumes that it’s a restriction on religious services in general,” he said. “It certainly is not… There is opportunity and availability, without numerical limitations, for outdoor services. And that fits in to the type of COVID risks specifically associated with these types of mass gatherings closed in. The governor made the determination that there are differences in terms of the nature of the activities, the fact that the very nature of what religious services are, congregating, coming together as one.”

Judge Milan Smith appeared skeptical of the argument.

“But that’s not true in casinos, right?” the judge asked.

“Casinos are different,” Newby responded, pointing to an “increased enforcement ability of casinos.”

Still, the judge was doubtful.

“Counsel, with respect, I read that in your brief, and I couldn’t stop laughing,” Smith said.

Chattah said the Las Vegas church has a capacity of 700 people, while attorney David Cortman, who represents the Lyon County church, said the capacity there was 200 people.

“A casino can still have hundreds or thousands of people,” Cortman argued. “So the differential treatment is that there’s a percentage basis, but there’s a hard cap for churches but no hard cap with any of the other uses.”

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. 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.

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, which is based in San Francisco, arguing that the restrictions on religious gatherings violated church members’ First Amendment rights.

One of the judges, Danny Boggs, sitting in from the 6th Circuit Court of Appeals in Ohio, asked Cortman the types of limitations to which the church could agree.

The attorney said the church should be allowed 50 percent capacity per room, not strictly the entire building.

“We are not challenging any of the mask wearing, distancing, hand sanitizing. I want to make that clear,” Cortman said. “The church is only challenging the numerical limit… You have movie theaters, you have schools that are allowed that cap per room, whereas the church is only allowed that cap for one part of their building.”

The hearing came just after the U.S. Supreme Court late last month blocked pandemic restrictions on houses of worship in New York and later ordered judges in California to do the same.

Judges in Tuesday’s hearing recognized that reversal from a July decision, when the high court decided to permit capacity limits on churches in California and Nevada.

“When you begin with a regulation that names houses of worship as a particular category and come up with different numbers, rather than saying houses of worship are like something else, how can you say its neutral or generally applicable?” Boggs asked.

Newby responded that other provisions had limited occupancy to 50 people in theaters, art galleries and some schools.

“Simply naming religious services does not in and of itself make the provision not generally applicable,” Newby said. “These directives are intended to be guidance to the general public, so they understand what they can and can’t do during this pandemic.”

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