By Lisa Soronen
In Calvary Chapel Dayton Valley v. Sisolak the U.S. Supreme Court allowed the Nevada governor’s COVID-19 restrictions on the number of people who may attend religious services to stand.
The lower courts refused to grant the church an injunction in this case so they asked the Supreme Court to intervene on an emergency basis. It will do so where a lower court has refused to grant an injunction only if the legal rights are “indisputably clear.”
Nevada Governor Steve Sisolak’s phase-two reopening plan limits indoor religious worship services to no more than 50 people. But it allows casinos, restaurants, gyms, and other businesses to operate at 50% of their maximum occupancy. Calvary Chapel Dayton Valley wants to host worship services for about 90 congregants, which is about 50% of its capacity.
The church sought an injuncting claiming the governor violated the church’s free exercise of religion and free speech rights under the First Amendment.
The lower court denied the injunction noting that churches were treated the same or better than activities “comparable in terms of large numbers of people gathering for an extend period of time,” including lectures, museums, movie theaters, trade/technical schools, nightclubs, and concerts.
The church also objected to the governor allowing—and participating in—a mass protest outside despite the fact that his directive generally disallows more than 50 people to gather inside or outdoors. The lower court wasn’t “persuaded that outdoor protest activity is similar to places of worship in terms of the nature of the activity and its ability to be regulated.”
The 9th Circuit denied the church’s emergency injunction as well with no explanation.
The church asked the Supreme Court for an injunction disagreeing with the district court’s conclusion that “state officials may discriminate against religious gatherings if they treat a few secular assemblies worse.”
Sisolak defended the directive relying in part on South Bay United Pentecostal Church v. Newsom. In that case the Supreme Court refused to grant a church an emergency injunction where California limited attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.
In this case, the church’s request for an emergency injunction went to Justice Elena Kagan who referred the matter to the entire court, which denied the church’s request for an injunction with no explanation.
Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh and Neil Gorsuch dissented.
Alito, writing for Thomas and Kavanaugh, rejected the justifications the governor offered for treating casinos, bowling alleys, and other businesses better than churches. He also concluded that treating protests more favorably than church services amounted to unconstitutional viewpoint discrimination.
Regarding South Bay, Alito noted that he dissented from that decision “but even if it is accepted, that case is different from the one now before us. In South Bay, a church relied on the fact that the California law treated churches less favorably than certain other facilities, such as factories, offices, supermarkets, restaurants, and retail stores. But the law was defended on the ground that in these facilities, unlike in houses of worship, ‘people neither congregate in large groups nor remain in close proximity for extended periods.’ That cannot be said about the facilities favored in Nevada. In casinos and other facilities granted preferential treatment under the directive, people congregate in large groups and remain in close proximity for extended periods.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.