EDITORIAL: Court gets a kick out Nevada’s religious restrictions

Comments that judges make during oral arguments don’t always foreshadow how a court will rule. But it doesn’t bode well for Gov. Steve Sisolak’s virus restrictions on Nevada churches when a federal appellate judge compares the state’s legal defense to a comedy routine.

“I read that in your brief and I couldn’t stop laughing,” said Judge Milan Smith of the 9th U.S. Circuit Court of Appeals on Tuesday. Judge Smith was referring to Nevada’s position that imposing harsher attendance restrictions on churches than on casinos was justified because gaming establishments are heavily regulated by the state, giving authorities “increased enforcement ability.”

“The reality is,” Judge Smith continued, “when you have all these people in casinos, they’re not paying attention to any rules, I don’t care how well it is regulated. So I don’t see how you justify treating religions worse than casinos.”

Judge Smith was among a three-judge panel hearing an appeal from two Nevada churches challenging the constitutionality of Gov. Sisolak’s edicts restricting attendance at church gatherings. Bars, restaurants, casinos, retailers and many other establishments are under reduced customer capacity orders — 25 percent — based on fire code. Churches and other entities are limited to 50 people or 25 percent capacity, whichever is lower.

The disparate treatment is unconstitutional under the First Amendment, attorneys for the religious interests argue. “What Calvary Chapel Lone Mountain is seeking is equal footing,” said Sigal Chattah, lead attorney for the church.

The 9th Circuit’s consideration of the Nevada case comes a week after the U.S. Supreme Court ordered a federal court to take another look at similar restrictions imposed by California Gov. Gavin Newsom. With the addition of Justice Amy Coney Barrett, the high court has made it clear in recent weeks that it won’t tolerate virus restrictions that treat churches differently than other gathering places.

“When you begin with a regulation that names houses of worship as a particular category and come up with different numbers,” Judge Danny Boggs of the 9th Circuit panel asked, “rather than saying houses of worship are like something else, how can you say it’s neutral or generally applicable?”

Gov. Sisolak’s policy on churches has been on shaky legal ground all along. Given the status afforded religious freedom in the Bill of Rights, the state must meet a high burden to justify stricter virus standards on churches. Besides, there’s no reason religious institutions can’t operate under mask and social distancing mandates at the same capacity limits imposed on most businesses. This week, Colorado dropped its hard capacity limits for religious houses, acknowledging they were unlikely to withstand constitutional scrutiny. Nevada should do the same.