Federal Appeals Court: Nevada’s Covid Restrictions Violate the First Amendment

December 23, 2020

The U.S. Court of Appeals for the Ninth Circuit held last week that the State of Nevada is violating the First Amendment by treating houses of worship more harshly than casinos. 

The unanimous panel said its holding was compelled by the Supreme Court’s decision last month in Roman Catholic Diocese of Brooklyn v. Cuomo, which “arguably represented a seismic shift in Free Exercise law.” RFI filed a friend of the court brief supporting the Orthodox Jewish plaintiffs in that case.

The case before the Ninth Circuit, Calvary Chapel v. Sisolak, addressed Nevada’s Covid-19 restrictions that capped attendance on houses of worship at 50, while allowing casinos and other businesses to operate at 50% capacity. Under this policy, casinos with a capacity of 500 could admit 250 people but a church with the same capacity could admit only 50. The court reasoned that while “slowing the spread of Covid-19 is a compelling interest,” under such disparate treatment Nevada’s Covid policy “is not narrowly tailored to serve that interest.”

The Supreme Court had previously denied Calvary Chapel’s request for an emergency injunction against Nevada’s Covid-19 rules for houses of worship. The church has petitioned the Supreme Court for a review of the district court’s denial of its motion for an injunction. RFI’s Islam and Religous Freedom Action Team filed a friend of the court brief supporting Calvary Chapel’s petition for review, joined by the Jewish Coalition for Religious Liberty. RFI’s brief states, in part:

Government discrimination against religion in one area tends to provide cover for discrimination in other areas that affect all religious adherents. If crisis conditions can justify arbitrary restrictions on religion, it opens the door to arbitrary restrictions when there is no crisis. Further, Islam and Judaism emphasize the need to protect the common good, and the protection of constitutional rights even in times of crisis serves the common good.

Last week’s decision by the Ninth Circuit in favor of Calvary Chapel may render its pending Supreme Court petition moot.