Freedom of religion vs. Sisolak, Round 2 |

Freedom of religion vs. Sisolak, Round 2

by Jim Hartman

Claiming virtually unlimited power to restrict constitutional rights during the COVID-19 pandemic, Gov. Sisolak issued a directive on May 28 that severely limited attendance at religious services.

It ordered that a church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos, restaurants, bars, breweries, bowling alleys and gyms may admit 50% of their maximum occupancy. In the case of gigantic Las Vegas casinos, this means thousands of patrons are allowed.

A small, rural Lyon County church, Calvary Chapel in Dayton Valley, challenged Sisolak’s order citing the constitutional guarantee of free exercise of religion.

Earlier, Sisolak had issued an even more draconian order — capping church attendance at 10-persons.

This limit was changed to 50-persons only as a result of the Department of Justice telling Sisolak that his original order “impermissibly treats religious and nonreligious organizations unequally.” The governor was warned that his original plan was a clear violation of the First Amendment.

Calvary Chapel proposed to host worship services for 90 congregants, amounting to about 50% of its 200-person fire-code capacity. In conducting these services, the church planned to take many precautions going beyond state requirements.

In addition to adhering to proper social distancing protocols and mask wearing, the church intended to cut the length of services in half, sanitize the church between services and take other measures that are “equal to or more extensive than those recommended by the CDC.”

Claiming disparate treatment, Calvary Chapel brought suit in federal court seeking an emergency injunction allowing it to conduct services, in accordance with its plan. A district court and the Ninth Circuit Court of Appeals denied Calvary’s application for an injunction. On July 24, the Supreme Court did as well.

Chief Justice Roberts sided with four liberal justices in denying the request. Three justices authored strongly worded dissents.

Justice Gorsuch had a compelling, one-paragraph dissent:

“In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.” 

The 5-4 Supreme Court decision in July came before conservative Justice Amy Coney Barrett filled the vacancy created by the death of liberal Justice Ruth Bader Ginsburg. 

On Thanksgiving Eve, in a 5-4 outcome with Barrett’s vote decisive, the newly reconstituted Supreme Court enjoined New York State from restricting attendance at religious services. The court blocked an order of Gov. Cuomo setting limits of 10 or 25 people in houses of worship in specified areas. 

This Supreme Court decision represents a seismic shift in free exercise law, even in a health emergency. Americans should welcome the court’s role as a defender of liberty against overreaching and unpredictable political fiats.

At a Dec. 8 hearing , all three judges of a Ninth Circuit Court of Appeals panel sympathized with Calvary Chapel’s claim that restrictions treating churches differently than casinos and other secular businesses violate their First Amendment rights.

“A casino entertaining 1,000 gamblers has no impact on public health while Calvary Chapel increasing its service size from 50 people to 90 would cripple the state’s health effort?” they asked.

Sisolak’s lawyer had no reply.

On Dec. 15, citing the Supreme Court’s Nov. 25 ruling that barred New York from enforcing discriminatory limits on attendance at churches and synagogues, the three-judge panel ordered Sisolak to stop enforcing a 50-person “hard cap” on church attendance.

The appeals court unanimously agreed with what Calvary Chapel argued for months. The governor’s COVID-19 restrictions are unconstitutional because they place harsher attendance limits on religious assemblies compared to secular gatherings, including casinos, restaurants, bars and protests.

Jim Hartman is an attorney residing in Genoa. E-mail