Nevada Can’t Impose Greater Restrictions on Churches Than on Casinos, Bowling Alleys, Etc.
From Calvary Chapel Dayton Valley v. Sisolak, written by Judge Milan D. Smith and joined by Judges Mark Bennett and Danny Boggs (6th Cir.):
[The Nevada Governor’s COVID-19 Directive] prohibits gatherings of more than fifty people “in any indoor or outdoor area[.]” More specifically, the Directive imposes limits of the lesser of 50% of fire-code capacity or 50 people in movie theaters (per screen), museums, art galleries, zoos, aquariums, trade schools, and technical schools. It prohibits public attendance at musical performances, live entertainment, concerts, competitions, sporting events, and any events with live performances.
Retail businesses, bowling alleys, arcades, non-retail outdoor venues, gyms, fitness facilities, restaurants, breweries, distilleries, wineries, and body-art and piercing facilities must cap attendance at 50% of their fire-code capacities. The Directive delegates the power to regulate casino occupancy to the Nevada Gaming Control Board, which ultimately imposed an occupancy cap of 50% of fire-code capacity, in addition to a wide variety of other restrictions and requirements.
Calvary Chapel challenges § 11 of the Directive, which imposes a fifty-person cap on “indoor in-person services” at “houses of worship.” The church alleges that gathering its members in one building “is central to [its] expression of [its] faith in Jesus Christ,” and the Directive unconstitutionally burdens this religious expression.
Calvary Chapel further argues that the Directive is not neutral or generally applicable because it targets, discriminates against, and shows hostility toward houses of worship … because it expressly treats at least six categories of secular assemblies better than it treats religious services[—] … casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests.
The Supreme Court’s recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), arguably represented a seismic shift in Free Exercise law, and compels the result in this case. In Roman Catholic Diocese, two houses of worship sought an injunction pendi
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