Ninth Circuit Rules for Calvary Chapel, Calls Diocese Case “Seismic Shift in Free Exercise Law”
In July, the Court ruled against Calvary Chapel, a church in Nevada. The unsigned opinion, which split 5-4, did not offer any analysis. Presumably, Chief Justice Roberts was willing to quietly stand by his South Bay concurrence. And the other four couldn’t be bothered to reply to the excellent dissent from Justice Kavanaugh. Well, four become three, and blue Monday shifted to red Thursday. After Diocese, South Bay was no more.
Now, the lower courts have begun to shift the jurisprudence. The Sixth Circuit recently buried South Bay, though the Court distinguished Diocese in an unpersuasive fashion.
Today, the Ninth Circuit has joined the fray. A three-judge panel has ruled in favor of Calvary Chapel church. (My former boss, Judge Danny Boggs of the Sixth Circuit, was sitting by designation on the Ninth). The panel found that Diocese “arguably represented a seismic shift in Free Exercise law, and compels the result in this case.” This case came out one way under South Bay, and came out the opposite way under Diocese.
Here is the crux of the Court’s analysis:
The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code cap
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