Bench Memos

Law & the Courts

Ninth Circuit Enjoins Nevada Covid Order Discriminating Against Houses of Worship

In an important ruling today, a unanimous Ninth Circuit panel ruled that the Supreme Court’s recent religious-liberty decision in Roman Catholic Diocese v. Cuomo compels it to grant Calvary Chapel Dayton Valley preliminary injunctive relief against Nevada governor Steve Sisolak’s covid directive that treats houses of worship less favorably than “numerous secular activities and entities” such as casinos, bowling alleys, retail restaurants, and arcades. One version of the directive imposed a 50-person cap on indoor attendance at houses of worship (and at movie theaters, museums, art galleries, and some other places), while allowing a much higher attendance of 50% of fire-code capacity for these other entities.

Back in July, the Supreme Court had denied Calvary Chapel relief, by a 5-4 vote.

The current version of the governor’s directive limits houses of worship to the lesser of 25% of fire-code capacity or 50 persons, while imposing only a 25% limit on casinos and the like. So the injunctive relief that the panel awards imposes that same 25% limit, without the 50-person cap. More broadly, it virtually guarantees that Calvary Chapel and other houses of worship will benefit from any further relaxation of the limit on casinos.

The panel opinion was written by Judge Milan D. Smith Jr. and was joined by Judge Danny J. Boggs (visiting from the Sixth Circuit) and Judge Mark J. Bennett. All three panel members were appointed by Republican presidents.


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