Petition for Writ of Certiorari — Calvary Chapel Dayton Valley, Petitioner v. Steve Sisolak, Governor of Nevada, et al.

Supreme Court briefNov 5, 2020

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NO. __________

IN THE

Supreme Court of the United States

CALVARY CHAPEL DAYTON VALLEY,

Petitioner,

STEVE SISOLAK, in his official capacity as Governor of

Nevada; AARON FORD, in his official capacity as

Attorney General of Nevada; FRANK HUNEWILL, in

his official capacity as Sheriff of Lyon County,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT

KRISTEN K. WAGGONER

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(202) 393-8690

kwaggoner@ADFlegal.org

jbursch@ADFlegal.org

DAVID A. CORTMAN

Counsel of Record

RORY GRAY

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

dcortman@ADFlegal.org

rgray@ADFlegal.org

Counsel for Petitioner

(additional counsel listed on inside cover)

RYAN J. TUCKER

JEREMIAH J. GALUS

GREGG WALTERS

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

rtucker@ADFlegal.org

jgalus@ADFlegal.org

gwalters@adflegal.org

JASON D. GUINASSO

500 Damonte Ranch Pkwy

Suite 980

Reno, NV 89521

(775) 853-8746

jguinasso@hutchlegal.com

Counsel for Petitioner

QUESTIONS PRESENTED

Attempting to combat the spread of COVID-19,

Nevada Governor Steve Sisolak issued a series of

executive orders that restrict personal liberties. The

subject of this petition are the Governor’s orders

limiting church gatherings. For example, Directive

021 allowed large groups to assemble in close quarters

for unlimited time-periods at casinos, restaurants,

indoor amusements parks, bowling alleys, water

parks, pools, arcades, and more, subject only to a 50%fire-code-capacity limit. In contrast, the directive

limited gatherings at places of worship to no more

than 50 people, whatever their facilities’ size or the

precautions they take. So if a casino and a church both

had capacity for 2,000 persons, the casino could

entertain 1,000 gambling patrons while the church

could only host 50 of its faithful for worship. Directive

033 has, for now, superseded Directive 021 but still

treats places of worship less well than their secular

counterparts. Such unequal treatment requires strict

scrutiny, yet the Governor did not try to offer a

compelling justification for the unequal treatment.

The Governor’s disparate treatment of churches

compared to secular venues violates this Court’s First

Amendment precedents and frames two issues of

immense jurisprudential significance that will impact

this case and many like it across the country:

1. Whether the Governor’s favoring of secular

over religious gatherings violates the Free Exercise

Clause.

2. Whether the Governor’s favoring of secular

over religious gatherings violates the Free Speech and

Assembly Clauses.

PARTIES TO THE PROCEEDING

Petitioner is Calvary Chapel Dayton Valley, a

Christian church in Dayton, Nevada, an unincorporated region of Lyon County.

Respondents are Steve Sisolak, in his official

capacity as Governor of Nevada; Aaron Ford, in his

official capacity as Attorney General of Nevada; and

Frank Hunewill, in his official capacity as the Sheriff

of Lyon County.

LIST OF ALL PROCEEDINGS

U.S. Supreme Court, No. 19A1070, Calvary

Chapel Dayton Valley v. Sisolak, application for an

injunction pending appellate review denied July 24,

2020.

U.S. Court of Appeals for the Ninth Circuit, No.

20-16169, Calvary Chapel Dayton Valley v. Sisolak,

motion for an injunction pending appeal denied July

2, 2020, and motion to dismiss the appeal as moot

denied October 26, 2020.

U.S. District Court for the District of Nevada, No.

3:20-cv-00303, Calvary Chapel Dayton Valley v.

Sisolak, order denying motion for preliminary

injunction entered June 11, 2020, and motion for

injunction pending appeal denied June 19, 2020.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i

PARTIES TO THE PROCEEDING ........................... ii

LIST OF ALL PROCEEDINGS ................................. ii

TABLE OF AUTHORITIES .................................... vii

DECISIONS BELOW................................................. 1

STATEMENT OF JURISDICTION .......................... 1

PERTINENT CONSTITUTIONAL PROVISIONS

AND STATUTES .................................................. 2

INTRODUCTION ...................................................... 3

STATEMENT OF THE CASE ................................... 8

A. Calvary Chapel Dayton Valley and its

religious services ............................................. 8

B. Nevada’s unequal treatment of churches ..... 10

C. Proceedings .................................................... 14

REASONS FOR GRANTING THE WRIT............... 18

I. The district court’s ruling is manifestly wrong. 18

A. The district court’s ruling is in direct

conflict with multiple facets of this Court’s

Free Exercise jurisprudence. ........................ 18

B. The district court’s ruling conflicts with

this Court’s free-speech and free-assembly

precedents, which bar favoring secular

views and gatherings over religious ones. .... 27

C. The Governor’s justifications for his

discrimination do not withstand scrutiny.

Some amplify the constitutional violation. .. 31

D. Directive 021 does not satisfy this Court’s

requirements for strict scrutiny.................... 36

E. Calvary Chapel satisfies the other

preliminary-injunction requirements. .......... 37

II. This case is an ideal vehicle to solve the

nationwide problem of government

discrimination against churches as a COVID19 response strategy. .......................................... 38

CONCLUSION ......................................................... 40

APPENDIX TABLE OF CONTENTS

United States District Court

for the District of Nevada

Order Denying Emergency Motions for a

Temporary Restraining Order and

Preliminary Injunction

Issued June 11, 2020................................................ 1a

United States District Court

for the District of Nevada

Order Denying Motion to Stay Pending

Appeal

Issued June 19, 2020.............................................. 13a

United States Supreme Court

Order Denying Application for Injunctive

Relief

Issued July 24, 2020 .............................................. 19a

United States Court of Appeals

for the Ninth Circuit

Order Denying Emergency Motion for

Injunctive Relief Pending Appeal

Issued July 2, 2020 ................................................ 46a

United States Court of Appeals

for the Ninth Circuit

Order Denying Motion to Dismiss Appeal

Issued October 26, 2020 ......................................... 47a

U.S. Constitutional Provisions .............................. 49a

State of Nevada, Governor Sisolak

COVID-19 Declaration of Emergency

Directive 021

Issued May 28, 2020 .............................................. 50a

State of Nevada, Governor Sisolak

COVID-19 Declaration of Emergency

Directive 033

Issued September 30, 2020 .................................... 84a

vii

TABLE OF AUTHORITIES

Cases

Antietam Battlefield KOA v. Hogan,

No. 1:20-cv-01130, 2020 WL 2556496 (D. Md.

May 20, 2020) ....................................................... 22

Blackhawk v. Pennsylvania,

381 F.3d 202 (3d Cir. 2004) ........................... 19, 21

Calvary Chapel Dayton Valley v. Sisolak,

140 S. Ct. 2603 (2020) ................................... passim

Calvary Chapel of Bangor v. Mills,

459 F. Supp. 3d 273 (2020) ............................ 22, 38

Capitol Square Review & Advisory Board v.

Pinette,

515 U.S. 753 (1995) .............................................. 28

Cassell v. Snyders,

458 F. Supp. 3d 981 (N.D. Ill. 2020) .................... 38

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah,

508 U.S. 520 (1993) ....................................... passim

City of Ladue v. Gilleo,

512 U.S. 43 (1994) ................................................ 29

Cross Culture Christian Center v. Newsom,

No. 2:20-cv-00832, 2020 WL 2121111 (E.D.

Cal. May 5, 2020) ................................................. 22

Cruzan v. Director, Missouri Department of

Health,

497 U.S. 261 (1990) .............................................. 35

viii

Elim Romanian Pentecostal Church v. Pritzer,

962 F.3d 341 (7th Cir. 2020) ................................ 38

Elrod v. Burns,

427 U.S. 347 (1976) .............................................. 37

Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020) ...........................6, 26, 33, 35

Food & Drug Administration v. American

College of Obstetricians & Gynecologists,

___ S. Ct. ____, 2020 WL 5951467 (Oct. 8,

2020) ..................................................................... 39

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) .......................................... 7, 17

Good News Club v. Milford Central School,

533 U.S. 98 (2001) ................................................ 28

Harvest Rock Church, Inc. v. Newsom,

__ F.3d __, 2020 WL 5835219 (9th Cir. Oct. 1,

2020) ..................................................................... 38

High Plains Harvest Church v. Polis,

2020 WL 4582720 (D. Colo. Aug. 10, 2020) ........ 39

Hosanna-Tabor Evangelical Lutheran Church &

School v. E.E.O.C.,

565 U.S. 171 (2012) .............................................. 37

Jacobson v. Massachusetts,

197 U.S. 11 (1905) ................................................ 35

Kingdomware Technologies, Inc. v. United States,

136 S. Ct. 1969 (2016) ...................................... 7, 17

Legacy Church, Inc. v. Kunkel,

___ F. Supp. 3d ____, 2020 WL 3963764

(D.N.M. July 13, 2020)......................................... 39

Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Commission,

138 S. Ct. 1719 (2018) ...................................... 3, 32

Metromedia, Inc. v. City of San Diego,

453 U.S. 490 (1981) .............................................. 28

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ........................................ 29, 30

Ohralik v. Ohio State Bar Association,

436 U.S. 447 (1978) .............................................. 27

Reed v. Town of Gilbert,

576 U.S. 155 (2015) ........................................ 28, 36

Roberts v. Neace,

958 F.3d 409 (6th Cir. 2020) ................................ 38

Rosenberger v. Rector & Visitors of University of

Virginia,

515 U.S. 819 (1995) .............................................. 29

Soos v. Cuomo,

___ F. Supp. 3d ____, 2020 WL 3488742

(N.D.N.Y. June 26, 2020)......................... 22, 35, 38

Sorrell v. IMS Health, Inc.,

564 U.S. 552 (2011) .............................................. 28

South Bay United Pentecostal Church v. Newsom,

140 S. Ct. 1613 (2020) ................................... passim

South Bay United Pentecostal Church v. Newsom,

959 F.3d 938 (9th Cir. 2020) ................................ 35

Southern Oregon Barter Fair v. Jackson County,

372 F.3d 1128 (9th Cir. 2004) .............................. 30

Spell v. Edwards,

962 F.3d 175 (5th Cir. 2020) .......................... 34, 35

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) .......................................... 18

United States v. Raines,

362 U.S. 17 (1960) ................................................ 37

Whitney v. California,

274 U.S. 357 (1927) .............................................. 29

Statutes

28 U.S.C. 1254(1) ....................................................... 2

28 U.S.C. 1292(a)(1) ................................................... 2

28 U.S.C. 1343 ............................................................ 1

28 U.S.C. 2101(e)........................................................ 2

28 U.S.C. 2201–02 ...................................................... 1

Other Authorities

Carla K. Johnson, Closing bars to stop

coronavirus spread is backed by science, AP

News (July 2, 2020), https://bit.ly/2W3qswn ...... 23

Carson Plains Casino,

https://carsonplainscasino.net ............................. 24

Colton Lochhead, Sisolak, elected Nevada

officials discuss systemic racism, reform, Las

Vegas Review-Journal (June 5, 2020),

https://bit.ly/31JhKHr ......................................... 13

Jackie Valley & Riley Snyder, Sisolak, elected

officials pledge to address systemic racism and

society’s ‘double standard’ toward black

protestors, The Nevada Independent (June 5,

2020), https://bit.ly/2Z6bBU5 .............................. 13

Kelsey Penrose, Gov. Sisolak makes appearance

at Black Lives Matter Protest in Carson City,

CarsonNOW.org (June 19, 2020),

https://bit.ly/2VKTS2p ........................13, 27, 29, 35

MapQuest, http://mapq.st/3iXbkuo ......................... 24

Nevada Health Response, COVD-19 Mitigation

& Management Task Force adjusts criteria

used to monitor elevated risk of transmission

of COVID-19 in Nevada counties (Oct. 8,

2020), https://bit.ly/3jPaKy7 ................................ 23

Sabrina Schnur, Juneteenth rally, march on Las

Vegas Strip draw scores of protestors, Las

Vegas Review-Journal (June 19, 2020),

https://bit.ly/2NZ9Mlm ........................................ 26

Shannon Miller, Nevada COVID-19 Task Force

says Clark County bars must remain closed,

Fox 5 News (Aug. 20, 2020),

https://bit.ly/3eqJDs7 ........................................... 24

DECISIONS BELOW

The district court’s June 11, 2020 unreported

order denying Calvary Chapel Dayton Valley’s motion

for preliminary injunction is available at 2020 WL

4260438 and reprinted at App.1a–12a.

The district court’s June 19, 2020 unreported

order denying Calvary Chapel’s motion for an

injunction pending appeal is available at 2020 WL

3404700 and reprinted at App.13a–18a.

The Ninth Circuit’s July 2, 2020 unreported order

denying Calvary Chapel’s motion for an injunction

pending appeal is available at 2020 WL 4274901 and

reprinted at App.46a.

This Court’s July 24, 2020 decision denying

Calvary Chapel’s application for an injunction

pending appellate review is reported at 140 S. Ct.

2603 and reprinted at App.19a–45a.

The Ninth Circuit’s October 26, 2020 decision

(clerk order) denying Respondents’ motion to dismiss

the appeal as moot is not reported but is printed at

App.47a–48a.

STATEMENT OF JURISDICTION

Calvary Chapel Dayton Valley filed its verified

amended complaint challenging Directive 021 under

the First Amendment’s Free Exercise, Free Speech,

and Free Assembly Clauses on May 28, 2020. That

same day, the church filed an emergency motion for a

temporary restraining order or preliminary injunction. The district court had jurisdiction under 28

U.S.C. 1331 and 1343, and authority to issue declaratory and injunctive relief under 28 U.S.C. 1343 and

2201–02.

The United States District Court for the District

of Nevada denied Calvary Chapel’s motion on June

11, 2020. On June 15, 2020, the church filed a timely

notice of appeal. The United States Court of Appeals

for the Ninth Circuit had jurisdiction over Calvary

Chapel’s interlocutory appeal under 28 U.S.C.

1292(a)(1), and oral argument is scheduled for

December 8, 2020.

This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1) and 2101(e). Because this matter is

time sensitive, Calvary Chapel files this petition

before the Ninth Circuit has ruled. Calvary Chapel

expects that by the time the Court considers the

petition, the Ninth Circuit will have issued an

opinion. Either way, as explained below, the petition

warrants this Court’s immediate review and resolution before the end of the Court’s 2020 Term.

PERTINENT CONSTITUTIONAL

PROVISIONS AND STATUTES

The relevant constitutional provisions and gubernatorial executive orders appear at App.49a–104a.

INTRODUCTION

“The Constitution guarantees the free exercise of

religion. It says nothing about the freedom to play

craps or blackjack, to feed tokens into a slot machine,

or to engage in any other game of chance.” Calvary

Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603,

2603–04 (2020) (Alito, J., dissenting from denial of

appellate injunction). Yet Respondent Nevada

Governor Sisolak has allowed large groups to

assemble in close quarters for unlimited time-periods

at casinos, indoor amusement parks, restaurants,

arcades, and more, subject to a 50%-fire-code-capacity

limit, all while limiting places of worship to no more

than 50 people, whatever their facilities’ size or the

precautions they take.

The Free Exercise Clause subjects such discriminatory restrictions on religious exercise—indeed,

even “subtle departures” from neutrality—to strict

scrutiny. Masterpiece Cakeshop, Ltd. v. Colo. Civil

Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (quoting

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 534 (1993)). And here, “the

departure is hardly subtle. The Governor’s directive

specifically treats worship services differently from

other activities that involve extended, indoor gatherings of large groups of people.” Calvary Chapel, 140 S.

Ct. at 2605 (Alito, J., dissenting). Indeed, the

Governor’s better treatment of casinos—where “large

groups of people gather in close proximity for

extended periods of time,” S. Bay United Pentecostal

Church v. Newsom, 140 S. Ct. 1613, 1613 (2020)

(Roberts, C.J., concurring in the denial of application

for injunctive relief)—by itself shows that the

directive is unconstitutional.

It’s not as though casino patrons do a better job of

social distancing than churchgoers. Just before casino

doors reopened at midnight on June 4, 2020, the

crowds looked like this [ER 170]:

Shortly after the doors opened, the scene looked

like this [ER 168]:

And this [ER 166]:

“The idea that allowing Calvary Chapel to admit

90 worshippers presents a greater public health risk

than allowing casinos to operate at 50% capacity is

hard to swallow, and the State’s efforts to justify the

discrimination are feeble.” Calvary Chapel, 140 S. Ct.

at 2606 (Alito, J., dissenting). And the State’s better

treatment of secular assemblies reaches well beyond

casinos to include restaurants, indoor amusement

parks, bowling alleys, water parks, pools, arcades,

and more. To top it off, state officials have also

effectively exempted altogether mass protests and

polling locations from the Governor’s directive.

In short, the Governor’s directive treats “comparable secular gatherings . . . more leniently” than

houses of worship. S. Bay, 140 S. Ct. at 1613 (Roberts,

C.J., concurring). This discrimination against religious assemblies and speech for no rational—let alone

compelling—reason violates the First Amendment.

See Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct.

2246, 2254 (2020) (the Free Exercise Clause “protects

religious observers against unequal treatment”)

(citation omitted). If the Governor deems it acceptable

for secular assemblies to occur at 50% capacity at

casinos, restaurants, theme parks, and more, he must

apply the same rule to constitutionally protected

worship services too.

This case is an ideal vehicle to so hold. Governor

Sisolak’s directive “blatantly discriminates against

houses of worship and thus warrants strict scrutiny

under the Free Exercise Clause.” Calvary Chapel, 140

S. Ct. at 2607 (Alito, J., dissenting). The directive

“fares no better under the Free Speech Clause,” given

the Governor’s restrictions on churches while giving

free reign to favored public protestors. Ibid. And

“Nevada does not even try to argue that the directive

can withstand strict scrutiny.” Id. at 2608. The

Governor’s violation of the First Amendment is plain.

And the Court’s holding here will guide lower courts

in resolving many other cases in which government

officials have treated churches worse than their

comparable secular counterparts.

Time is of the essence. If the petition is not

resolved by the end of the 2020 Term, churches and

worshippers will continue to endure unconstitutional

orders like Governor Sisolak’s for a minimum of 15-18

months. That is why Calvary Chapel has filed this

petition under Rule 11, before receiving a merits

ruling from the Ninth Circuit. It is likely the Ninth

Circuit will issue its opinion before this Court

considers the petition at conference, given that the

matter is scheduled for oral argument in the Ninth

Circuit on December 8, 2020. Either way, the Court

should not delay its consideration of the petition.

The need for review is enhanced by the fact that,

in late September 2020, Governor Sisolak issued a

new executive order, Directive 033, that allows places

of worship to host the lesser of 250 people or 50% firecode capacity. App.89a–90a. This new edict continues

to disadvantage churches. Directive 033 allows even

more secular venues, such as museums, art galleries,

zoos, and aquariums, to assemble at 50% fire-code

capacity with no hard cap. App.101a (§ 15). And it

allows convention centers to host four times as many

attendees—up to 1,000—as churches. So the

Governor’s preference for secular entities over

religious entities remains. App.99a–101a (§ 13).

What’s more, the Governor is free to go back to the

previous order at any time.

Ignoring these realities, the Governor moved to

dismiss Calvary Chapel’s appeal as moot. The Ninth

Circuit quickly denied that gambit, holding that

“‘voluntary cessation of a challenged practice does not

deprive a federal court of its power to determine the

legality of the practice’ if the challenged practice is

‘reasonably . . . expected to recur.’” App.47a (quoting

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC), Inc., 528 U.S. 167, 189 (2000)). Additionally,

the Ninth Circuit concluded, this is a case “capable of

repetition, yet evading review.” App.47a–48a (quoting

Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1976 (2016)).

In sum, Governor Sisolak has consistently

doubled down on religious discrimination, and he and

other government officials around the country will

continue to do so until this Court intervenes.

Certiorari is warranted.

STATEMENT OF THE CASE

A. Calvary Chapel Dayton Valley and its

religious services

Calvary Chapel Dayton Valley is a Christian

church in Dayton, Nevada, an unincorporated region

of Lyon County. ER 659, 665–66. Since 2006, the

church has sought to love, teach, and reach Dayton

Valley for Christ. Id. at 653–55. Before the COVID-19

outbreak, Calvary Chapel held two Sunday services,

each accommodating up to 200 people. Id. at 659, 669.

But Governor Sisolak’s directives have barred the

church from holding anything resembling its normal

religious gatherings for more than seven months. Id.

at 658–59.

At the onset of the COVID-19 outbreak—before

the Governor entered his March 24, 2020 directive

capping gatherings at 10 people, ER 721–23—Calvary

Chapel temporarily suspended in-person worship

services in favor of streaming services online, id. at

656. But this emergency measure caused real

spiritual harm. For example, some people who attend

Calvary Chapel were unable to view online services,

leaving them vulnerable and alone. Id. at 654.

Nor does the church believe that virtual or drivein services meet the Bible’s command that Christians

gather for corporate, prayer, worship, and scriptural

teaching. ER 654. “Ekklesia,” the Greek word in the

New Testament translated as “church,” means

“assembly.” Id. And Calvary Chapel views church

gatherings as sacred assemblies that embody Christ

on earth and are the best expression of “His image

and likeness.” Id. If a body of believers fails to hold inperson gatherings, Calvary Chapel views it as ceasing

to be a church in the biblical sense.

That does not mean Calvary Chapel will put its

flock or the public at risk. Because of COVID-19, the

church developed a comprehensive health and safety

plan that (1) limits in-person services to 50% of firecode-capacity (roughly 90 people per service), (2)

requires six feet of distance between members of

different families and households, (3) restricts

gatherings to only Sundays and Wednesdays, and

(4) reduces the length of Sunday services from 90 to

45 minutes. ER 659–60, 669–70. Calvary Chapel’s

rigorous safety plan also called for:

•

asking people to arrive no more than 25

minutes early;

•

organizing parking attendants to direct cars;

•

guiding attendees to a designated entrance;

•

ensuring one-way traffic via a first-in-last-out

model and placing signs on walls and floors;

•

leaving a half-hour gap between services in

which to clean and sanitize the sanctuary,

hallways, bathrooms, and common surfaces;

•

advising attendees of proper social-distancing

methods;

•

directing attendees to seating that provides at

least six feet of separation between families

and those in different households;

•

making hand-sanitizer

accessible;

•

prohibiting handouts or passing other items

between persons;

•

stopping the service of coffee and snacks;

stations

readily

•

limiting restroom use to one person at a time;

•

using prepackaged Communion elements;

•

directing attendees out of the building; and

•

instructing people not to congregate in the

building.

ER 659–60, 669–70.

After Governor Sisolak ignored Nevada churches’

pleas for equal treatment, see ER 598–612, 614–29,

Calvary Chapel sued, id. at 662–81. Even though the

church voluntarily adopted rigorous safeguards and

complied with the Governor’s general safety

mandates—including that people socially distance

and wear a face covering in public spaces—Governor

Sisolak refused to allow more than 50 people to attend

Calvary Chapel’s services. At the same time, the

Governor exempted much larger secular assemblies

where crowds gather in close proximity for extended

periods at casinos, gyms, restaurants, certain bars,

indoor amusements parks, bowling alleys, water

parks, pools, and arcades, not to mention mass

protests. App.64a–66a, 69a–76a (§§ 20–22, 25, 26, 28,

29); ER 160–64, 253–56.

B. Nevada’s unequal treatment of churches

Governor Sisolak has treated houses of worship

far worse than secular places where large, extended,

and close gatherings occur day-in-and-day-out.

Directive 021 ordered “[c]ommunities of worship and

faith-based organizations” to limit “indoor in-person

services . . . so that no more than fifty persons are

gathered, and all social distancing requirements are

satisfied.” App.58a–59a (§ 11). The directive also

ordered churches to “stagger services so that the

entrance and egress of congregants for different

services [does] not result in a gathering greater than

fifty persons.” App.59a (§ 11(3)). Violating Directive

021 would have subjected Calvary Chapel to civil and

criminal penalties. App.82a–83a (§ 39).

But the directive also allowed casinos and other

gaming establishments to reopen under rules set by

the Nevada Gaming Control Board. App.80a–

81a (§ 35); see also ER 576–583 (gaming board rules).

For five months, casinos have hosted hundreds to

thousands of people at a time subject only to a 50%

occupancy limit on each gaming area. ER 581. And on

its face, Directive 021 allowed six more types of

comparable secular assemblies to thrive at up to 50%

capacity with no 50-person cap: (1) restaurants

App.69a–70a (§ 25); ER 748 (§ 17); (2) amusement

parks and theme parks, App.65a (§ 21); (3) bowling

alleys and arcades, App.64a–65a (§ 20); (4) breweries,

distilleries, and wineries, App.70a–71a (§ 26);

(5) gyms, fitness facilities, and fitness studios,

App.71a–73a (§ 28); and (6) water parks and other

public aquatic venues, App.73a–74a (§ 29).

The Governor even treated cinemas more favorably than churches. Directive 021 allowed “indoor

movie theaters” to host “the lesser of 50% of the listed

fire code capacity or fifty persons” (§ 20). ER 646. But

that’s 50 persons “per screen.” Id. at 552 (emphasis

added). So a cinema with 18 screens can host 900

people while a church may only host up to 50, even if

it has worship spaces and meeting rooms divided into

18 separate spaces, just like the cinema. That is

because “the entrance and egress of congregants for

different services [may] not result in a gathering

greater than fifty persons.” App.59a (§ 11(3)).

The Governor’s Directive 033, replacing Directive

021, allowed churches to host more worshippers but

still subject to a hard cap. At the same time, it

expanded the list of better-treated comparators to

include museums, art galleries, zoos, aquariums, and

convention centers. App.99a–101a (§ 13).

The directives’ real-life operation shows that

Nevada allows still more large, close, and prolonged

secular assemblies with no numerical limits. When

hundreds of protesters gathered in throngs in late

May 2020, see App.58a (§ 10), Governor Sisolak

tweeted his support, telling the protestors, “We

respect and defend your right to protest . . . .” ER 256.

The next day, he retweeted a protest video [ER 254]

that far exceeded his 50-person limit on gatherings:

And not only did the Governor tweet his support,

he later personally participated in an unlawful

protest and praised the gathering, saying, “‘I think

these are peaceful folks who are just speaking their

mind . . . . It’s encouraging to see the young generation

participating so I’m thrilled to come and say hi to

them.’”1

The Attorney General tweeted his support for the

protests, too. Id. at 161–62, 164. Yet when a reporter

asked about state officials’ treatment of mass protests

as compared to church services, the Attorney General

responded that places of worship face punishment

because “there was an advertisement that people are

actually going to violate the governor’s orders” and

“You can’t spit . . . in the face of law and expect law

not to respond.”2 Such pronouncements did not stop

the Governor from ignoring his own directive and

participating in a mass protest—which was also

presumably advertised ahead of time, given the

Governor’s

and

law

enforcement

officials’

appearances. Penrose, supra p. 13, n.1.

1 Kelsey Penrose, Gov. Sisolak makes appearance at Black Lives

Matter Protest in Carson City, CarsonNOW.org (June 19, 2020),

https://bit.ly/2VKTS2p.

2 Colton Lochhead, Sisolak, elected Nevada officials discuss

systemic racism, reform, Las Vegas Review-Journal (June 5,

2020), https://bit.ly/31JhKHr; Jackie Valley & Riley Snyder,

Sisolak, elected officials pledge to address systemic racism and

society’s ‘double standard’ toward black protestors, The Nev.

Indep. (June 5, 2020), https://bit.ly/2Z6bBU5.

State officials approached Nevada’s primary

election the same way. Hundreds of people standing

in close proximity for hours waiting to vote at a few

in-person sites made national headlines:

ER 68–72. Officials did nothing to limit groupings of

voters to 50 people, enforce social-distancing rules, or

aim to apply the Governor’s directive to polling places,

although these gatherings were state-run. Id. at 74–

79. Had the polling places instead been houses of

worship, the people standing in long lines would have

risked criminal and civil penalties. App.82a–83a

(§ 39).

C. Proceedings

Once the Governor issued Directive 021, Calvary

Chapel amended its complaint and alleged violations

of the First Amendment’s Free Exercise, Free Speech,

and Free Assembly Clauses.3 ER 662–81. The church

requested declaratory and injunctive relief, id. at 679,

and it filed an emergency motion for a temporary

restraining order or preliminary injunction, ECF 9,

19. The district court denied the motion, ER 1–10.

And although the court addressed the church’s freeexercise claim, id. at 3–9, its order was silent about

Calvary Chapel’s speech and assembly claims.

The district court admitted that “a large number

of people may remain in close proximity for an

extended period of time” at both casinos and places of

worship. ER 6. Yet the court disregarded them as

comparable based on regulatory distinctions, such as

state oversight of casinos’ “financial” and “internal

operations,” ibid., that do not affect—let alone

increase—public health and safety. Despite the

Governor applying “more lenient restrictions” to other

“secular activities comparable to in-person church

services,” the district court held Directive 021 neutral

and generally applicable. Id. at 7. It did so because

the Governor imposed “more stringent restrictions”

on a few types of secular assemblies, like concerts,

sporting events, and musical performances. Ibid.; see

App.60a (§ 22). Because Calvary Chapel could not

show that the Governor’s directive only “specifically

target[s] places of worship” for adverse treatment, the

district court identified no free-exercise violation.

ER 7.

3 The original complaint challenged Directive 018, which limited

gatherings in houses of worship to 10 people while allowing

restaurants, for example, to reopen at 50% capacity. ER 748

(§ 17).

As to Directive 021’s real operation, the district

court said that mass protests are unlike religious

services. Equally applying the directive to mass

protests, the court said, “could result in greater harm

than that sought to be avoided by the Directive.”

ER 8. The court required “more evidence” that

Nevada was not imposing effective restrictions on

“crowded casinos.” Id. at 9. And the court denied the

church’s motion for leave to file a post-argument brief

addressing the recent election. ECF 41; ER 10.

The church filed an emergency motion for an

injunction pending appeal with the district court,

which the court denied. ECF 55. A two-judge Ninth

Circuit panel likewise denied Calvary Chapel’s

injunction-pending-appeal request in a brief order.

CA9 ECF 20.

Calvary Chapel filed an application in this Court

on July 8, 2020, seeking an injunction pending appeal.

The Court denied that application on July 24, 2020.

Four Justices penned three dissents, explaining that

on the merits, Calvary Chapel demonstrated that

Governor Sisolak’s actions violated the First Amendment, and the question was not a close one. Calvary

Chapel, 140 S. Ct. at 2603, 2604 (Alito, J., joined by

Thomas, J., and Kavanaugh, J., dissenting) (“[T]his

Court’s willingness to allow such discrimination is

disappointing. We have a duty to defend the

Constitution, and even a public health emergency

does not absolve us of that responsibility.”); id. at

2609 (Gorsuch, J., dissenting) (“This is a simple

case.”); id. at 2609, 2615 (Kavanaugh, J., dissenting)

(“Nevada is discriminating against religion.”).

Back in the Ninth Circuit, the Governor moved to

dismiss the appeal as moot based on his newly issued

Directive 033, which increased the house-of-worship

occupancy cap to 250. But the new directive adds

museums, art galleries, zoos, aquariums, and other

secular organizations to the list of venues that can

hold assemblies at 50% fire-code capacity with no

hard cap, and it allows convention centers (previously

closed) to host four times as many attendees—up to

1,000—as churches. App.99a–101a (§§ 13, 15).

The Ninth Circuit denied the Governor’s motion,

holding that “‘voluntary cessation of a challenged

practice does not deprive a federal court of its power

to determine the legality of the practice’ if the

challenged practice is ‘reasonably . . . expected to

recur,’ as here” App.47a (quoting Friends of the Earth,

Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S.

167, 189 (2000)). What’s more, the Ninth Circuit

concluded, this is a case “capable of repetition, yet

evading review.” App.47a–48a (quoting Kingdomware

Techs., Inc. v. United States, 136 S. Ct. 1969, 1976

(2016)). Accordingly, the appeal continues, and oral

argument is scheduled for December 8, 2020.

REASONS FOR GRANTING THE WRIT

Four Justices have already concluded that

Governor Sisolak’s Directive 021 unconstitutionally

discriminated against churches and worshippers. It is

not clear whether additional Justices’ votes were

motivated by the merits or the high standard for an

appellate injunction. What is clear is that government

officials continue to invite lower courts to interpret

this Court’s denial of Calvary Chapel’s application for

an appellate injunction as a signal that they, too,

should allow government officials to treat churches

unequally. Given the straightforward nature of the

constitutional violations, the severity of the injury to

religious worship, the widespread nature of the

problem, and the duration of COVID-19, only this

Court can intervene and restore churches’ First

Amendment rights.

The district court’s ruling is manifestly

wrong.

A. The district court’s ruling is in direct

conflict with multiple facets of this

Court’s Free Exercise jurisprudence.

Because Directive 021 “directly prohibit[ed]”

Calvary Chapel’s desired “religious activity,” it

strongly implicates the Free Exercise Clause. Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S.

Ct. 2012, 2022 (2017) (quotation omitted). Religious

discrimination is “odious to our Constitution.” Id. at

2025. And the Free Exercise guarantees religious

believers—at a bare minimum—“[ ]equal treatment.”

Lukumi, 508 U.S. at 542.

To determine whether a law treats religious

believers and their practices equally, this Court

directs courts to “survey meticulously” the law’s text

and “real operation.” Lukumi, 508 U.S. at 531, 534–

35. A law that is not both neutral and generally

applicable faces strict scrutiny. Id. at 531.

A law is not neutral if it treats the same conduct

as lawful when undertaken for secular reasons but

unlawful when undertaken for religious reasons,

singles out religious conduct for adverse treatment, or

“visits gratuitous restrictions on religious conduct.”

Id. at 533–35, 538 (cleaned up). A law fails the general

applicability requirement if it does not “prohibit

nonreligious conduct that endangers [the state’s]

interests in a similar or greater degree than” the

prohibited religious conduct. Id. at 543. Or as thenJudge Alito explained, a law is not generally

applicable “if it burdens a category of religiously

motivated conduct but exempts or does not reach a

substantial category of conduct that is not religiously

motivated and that undermines the purposes of the

law to at least the same degree as the covered conduct

that is religiously motivated.” Blackhawk v. Pennsylvania, 381 F.3d 202, 209 (3d Cir. 2004) (Alito, J.).

South Bay upheld these principles. The Chief

Justice and dissenting Justices simply disagreed

about whether California’s unfavorable treatment of

places of worship depended on their religious status

or the nature of their gatherings. Some Justices

viewed secular assemblies at supermarkets, factories,

and offices as comparable to religious gatherings at

churches. S. Bay, 140 S. Ct. at 1615 (Kavanaugh, J.,

dissenting from denial of application for injunctive

relief). The Chief Justice did not.

In the Chief Justice’s view, these particular

commercial gatherings were different in kind because

“people neither congregate in large groups nor remain

in close proximity for extended periods.” Id. at 1613

(Roberts, C.J., concurring). But the exact opposite is

true here. A meticulous survey, see Lukumi, 508 U.S.

at 534, isn’t even necessary to see that Directive 021

treats comparable secular assemblies more leniently.

Governor Sisolak’s directive facially treated

better than religious services at least seven categories

of secular assemblies “where large groups of people

gather in close proximity for extended periods of

time,” S. Bay, 140 S. Ct. at 1613 (Roberts, C.J.,

concurring), not to mention the effective exemptions

state officials carved out for mass protests and polling

locations. And Directive 033 doubles down and adds

several more. In short, no real argument exists that

the Governor’s restrictions on public gatherings are

“neutral and of general applicability,” Lukumi, 508

U.S. at 531, which means the directive must undergo

“strict scrutiny,” id. at 546. For brevity’s sake,

Calvary Chapel offers just six examples here.

Casinos

Governor’s Sisolak’s directive allowed Nevada’s

casinos to reopen on June 4, 2020. App.80a–81a

(§ 35). Thousands of people swarmed around gaming

tables and slot machines for long periods at 50%

capacity. ER 83, 100, 166–70. But that’s not all.

Casinos also reopened their (1) live circus acts, ER

89–90; (2) indoor amusement parks, including Circus

Circus’s five-acre Adventuredome, id. 92–98; and

(3) live dinner shows at 50% capacity, id. 85–87.

Directive 021 allowed this daily mix of shared

handles, cards, tokens, tables, servers, drinks,

restrooms, and seats by hundreds to thousands in

casinos at 50% capacity, while barring more than 50

people to sit—masked and socially distanced—in

places of worship once or twice a week.

The disparity is stark. When casinos opened their

doors on June 4, they began serving thousands of

patrons spending multiple hours gambling. In

contrast, Directive 021 barred the church from

opening its doors for a 45-minute, Sunday service to

about 90 worshippers—Nevadans who live and work

in or near the rural community of Dayton. Id. at 653,

659.

The Governor has a legitimate interest in

“allow[ing] [Nevada’s] person-based tourism economy

to recover and succeed again.” ECF 29 at 7 (state

defendants’ response to motion for preliminary

injunction).4 But that interest is not weightier than

Calvary Chapel’s First Amendment right to free

exercise. By excepting casinos from a 50-person cap

on gatherings, the directive “exempts . . . a

substantial category” of secular conduct “that

undermines the purposes of the [directive] to at least

the same degree as the covered conduct that is

religiously motivated.” Blackhawk, 381 F.3d at 209

(Alito, J.).

4 Calvary Chapel uses the page numbers at the bottom of ECF

29 for pinpoint citations to that filing.

Restaurants and Bars

Lower courts broadly agree that gatherings at

restaurants are comparable to religious gatherings.5

For nearly six months the Governor has allowed

Nevada’s restaurants to operate at 50% seating

capacity. App.69a–70a (§ 25); ER 748 (§ 17). While

tables must be six-feet apart, members of different

households may sit side-by-side or directly across

from each other. Servers deliver food and drinks, mop

up, and collect dishes. Diners share appetizers, pass

and eat food, and talk freely across the table without

masks.6

The risk of COVID-19 transmission is much

greater at restaurants than at Calvary Chapel’s

worship gatherings, which are socially-distanced,

eliminate coffee and snacks, and exclude passing

5 E.g., Soos v. Cuomo, ___ F. Supp. 3d ____, 2020 WL 3488742,

at *11 (N.D.N.Y. June 26, 2020), appeal pending, Nos. 20-2414,

20-2418 (2d Cir.); Antietam Battlefield KOA v. Hogan, No. 1:20cv-01130, 2020 WL 2556496, at *9 (D. Md. May 20, 2020), appeal

pending, No. 20-1579 (4th Cir.); Calvary Chapel of Bangor v.

Mills, 459 F. Supp. 3d 273, 286 (D. Me. 2020), injunction pending

appeal denied, No. 20-1507, 2020 WL 3067488 (1st Cir. June 2,

2020); Cross Culture Christian Ctr. v. Newsom, No. 2:20-cv00832, 2020 WL 2121111, at *6 (E.D. Cal. May 5, 2020).

6 The Governor’s face-covering directive allows people to remove

face masks “while . . . eating or drinking.” Directive 024 (§ 7(6)),

CA9 ECF 23, Ex. 1. This summer, the Governor announced new

restrictions for restaurants that remains in effect: six people to

a table, max. Directive 027 (§ 5), CA9 ECF 23, Ex. 3; Directive

033 (§ 12), App.97a–99a. But restaurants’ ability to host secular

gatherings at 50% of seating capacity statewide remains

unchanged. Directive 033 (§ 12), App.97a–99a.

objects from person-to-person.7 ER 659–60, 669–70;

see also id. at 108 (¶ 40) (expert declaration) (the

church’s “precautionary measures” mean it “likely

presents a lower risk of SARS-coV-2 transmission

than individuals face in other allowed activities”). Yet

while the Governor allows indoor restaurants to

operate at 50% seating capacity, he restricted the

church’s gatherings to 50 people total—including

clergy, staff, sound and video technicians, and others

who serve and participate in worship.

For months, Governor Sisolak has allowed most

bars to operate at 50% capacity too, App.69a–71a

(§§ 25, 26), even though it takes little imagination to

envision how reduced inhibitions could lead to

decreased social-distancing and loud voices. Health

experts agree that the risks of contracting COVID-19

while drinking in bars is severe.8 Although the

Governor’s Mitigation Task Force has the power to

close bars in counties that have elevated virus

metrics, the Governor’s directives still allow

restaurants and casinos in those counties to continue

serving alcohol to groups seated at restaurant and

casino tables.9 And, of course, the Governor’s edicts

7 Calvary Chapel’s services only rarely involve Communion. And

even when they do, the church uses prepackaged elements. ER

660, 670.

8 Carla K. Johnson, Closing bars to stop coronavirus spread is

backed

science,

https://bit.ly/2W3qswn.

News

(July

2020),

9 Directive 027 (§§ 5, 6), CA9 ECF 23, Ex. 3; Directive 030 (§ 11),

CA9 ECF 44, Ex. 15; Directive 033 (§ 6), App.88a; see also

Nevada Health Response, COVD-19 Mitigation & Management

Task Force adjusts criteria used to monitor elevated risk of

transmission of COVID-19 in Nevada counties (Oct. 8, 2020),

still allows mass gatherings at 50% capacity at all

casinos regardless of county metrics, including the

Carson Plains Casino in Dayton Valley—about a fourmile drive from Calvary Chapel on U.S. Route 50.10

Amusement and Theme Parks

Indoor and outdoor amusement or theme parks in

Nevada have now been open at 50% capacity with

social distancing for more than five months. App.65a

(§ 21). Social distancing is easier to maintain in

Calvary Chapel’s sanctuary using prearranged

seating than in long, fluctuating theme-park lines.

And only a few people will sit in the same chair on a

Sunday morning, while hundreds of people daily cycle

through often partially-enclosed, theme-park rides.

But the Governor sanctioned boisterous crowds

waiting for long periods to board popular theme-park

attractions, while talking loudly, at the same time he

prohibited more than 50 people from (mainly) sitting

quietly and socially-distanced at church.

Gyms and Fitness Facilities

Under Directive 021, gyms and fitness facilities

could open—and hold large “[g]roup fitness classes”—

at 50% capacity if there is at least six feet between

equipment or people and various regulations (like

sanitation protocols) are met. App.71a–73a (§ 28). The

Governor admitted that gyms are precisely the sort of

places “that promote extended periods of public

https://bit.ly/3jPaKy7; Shannon Miller, Nevada COVID-19 Task

Force says Clark County bars must remain closed, Fox 5 News

(Aug. 20, 2020), https://bit.ly/3eqJDs7.

Carson Plains Casino, https://carsonplainscasino.net;

MapQuest, http://mapq.st/3iXbkuo.

interaction where the risk of transmission is high.”

ER 705 (§ 2). Yet he treated assemblies of people

exercising (which increases both breathing and

sweating) and actively sharing machines, weights,

and mats better than groups of people that share only

their faith and wish (predominantly) to sit still and

listen to clergy speak.

Any chance of transmission at worship services is

lower, especially those with the wide-ranging

precautions Calvary Chapel voluntarily agreed to

undertake. ER 659–60, 669–70. Even so, the

Governor sanctioned fitness facilities welcoming

crowds at 50%-capacity, while limiting all places of

worship—no matter

their

size,

locale,

precautions—to 50 people max.

Movie Theaters

Gatherings at “movie showings” and places of

worship are comparable, S. Bay, 140 S. Ct. at 1613

(Roberts, C.J., concurring), yet the Governor treated

them unequally. What Directive 021 meant by

limiting an “indoor movie theater[ ]” to “the lesser of

50% of the listed fire code capacity or fifty persons,”

App.64 –65a (§ 20), is not the entire cinema, but “50

people . . . per screen,” as industry guidance makes

clear, ER 552.

So the Governor allowed multiplex cinemas to fill

with hundreds of people (excluding employees), while

restricting every place of worship in Nevada to no

more than 50 persons, including those needed to run

the service. This is so even if the church, like the

multiplex, has multiple separate spaces that could be

used simultaneously for worship without any contact

between worshippers in different spaces. In real

terms, the Governor limited Calvary Chapel to

roughly 35-40 worshippers at a time—no matter how

many meeting rooms it has—because the Governor’s

directive stipulated that “congregants for different

services [may] not result in a gathering greater than

fifty persons.” App.59a (§ 11(3)); ER 658. It is not

equal to allow cinemas 50 paying customers per screen

but cap places of worship at 50 people per complex.

Mass Protests

This summer, hundreds of people in Nevada stood

shoulder-to-shoulder for long periods shouting or

chanting slogans and holding signs.11 ER 254–56.

This violated the Governor’s general directive that no

more than 50 people congregate in or out of doors.

App.58a (§ 10). Yet rather than discourage mass

protests or threaten to disperse them, the Governor

and Attorney General encouraged the gatherings. ER

161–64, 254–56. “[T]he effect of the [directive] in its

real operation is strong evidence of its object.”

Lukumi, 508 U.S. at 535. More than 50 people could

gather to lift their voices and plea for justice—but

only if their prayers and petitions were directed

toward their government, not God. This “unequal

treatment” violates the Free Exercise Clause.

Espinoza, 140 S. Ct. at 2254. The state’s value

judgment in effectively exempting secular protests

from the 50-person cap while not exempting Calvary

Chapel’s religious activities reveals that Nevada’s

actions are neither religion-neutral nor generally

applicable.

11 Sabrina Schnur, Juneteenth rally, march on Las Vegas Strip

draw scores of protestors, Las Vegas Review-Journal (June 19,

2020), https://bit.ly/2NZ9Mlm.

And if Nevada’s unequal treatment of places of

worship needed an exclamation mark, the Governor

provided it by personally participating in a protest

that violated his own directive. Penrose supra p. 13

n.1. As this Court held in Lukumi, a “prohibition that

society is prepared to impose upon [religious

worshippers] but not upon itself” is not generally

applicable. Lukumi, 508 U.S. at 545 (citation

omitted).

“In sum, the directive blatantly discriminates

against houses of worship and thus warrants strict

scrutiny under the Free Exercise Clause.” Calvary

Chapel, 140 S. Ct. at 2607 (Alito, J., dissenting).

B. The district court’s ruling conflicts with

this Court’s free-speech and freeassembly

precedents,

which

bar

favoring secular views and gatherings

over religious ones.

Directive 021 “fares no better” under this Court’s

precedents interpreting the Free Speech Clause.

Calvary Chapel, 140 S. Ct. at 2607 (Alito, J.,

dissenting). The district court’s denial of Calvary

Chapel’s request for injunction allows Nevada to

privilege commercial over non-commercial, religious

speech and to favor the communication of secular

perspectives over religious views. Yet commercial

speech occupies a “subordinate position in the scale of

First Amendment values.” Ohralik v. Ohio State Bar

Ass’n, 436 U.S. 447, 456 (1978).

Directive 021 turned the First Amendment on its

head by empowering businesses like casinos, movie

theaters, live dinner shows and circus acts, fitness

classes, certain bars, theme parks, and bowling alleys

to express commercial messages to larger in-person

audiences than places of worship communicating

their religious messages.

“[A] free-speech clause without religion would be

Hamlet without the prince.” Capitol Square Review &

Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995)

(plurality opinion). The First Amendment emphatically protects Calvary Chapel’s noncommercial,

religious messages, while secular businesses’

commercial expression is “subject to greater

governmental regulation.” Sorrell v. IMS Health, Inc.,

564 U.S. 552, 579 (2011). Yet the Governor “invert[ed]

this judgment” by affording many secular businesses

“a greater degree of [freedom to express] commercial”

messages to live audiences than he afford[ed] places

of worship to convey religious speech. Metromedia,

Inc. v. City of San Diego, 453 U.S. 490, 513 (1981). In

so doing, the Governor “conclude[d] that the

communication of commercial information . . . is of

greater value than the communication of noncommercial messages,” a value judgment the Free Speech

Clause does not permit. Ibid. The Constitution forbids

the Governor from privileging commercial messages

about gambling, fitness, entertainment, and liquor

over Calvary Chapel’s fully-protected religious

speech.

Religion is also a protected “viewpoint,” Good

News Club v. Milford Cent. Sch., 533 U.S. 98, 112 n.4

(2001), which the Governor treated worse than

businesses’ commercial advertising and mass protesters’ non-commercial standpoints. When state

officials “favor[ ] some speakers over others [based on]

a content preference,” strict scrutiny applies. Reed v.

Town of Gilbert, 576 U.S. 155, 170 (2015). Nevada

officials have demonstrated a clear preference for

secular viewpoints here: they allow many businesses’

for-profit inducements to thrive and applaud,

encourage, and even participate in mass protests that

violate the Governor’s directive.

Under the Free Speech Clause, state officials may

not pick and choose which views are worth hearing in

person, nor may they “select the permissible [standpoints] for public” discussion or “control [individuals’]

search for . . . truth.” City of Ladue v. Gilleo, 512 U.S.

43, 51 (1994) (cleaned up). Governor Sisolak cannot

decide that proliferating commercial speech and

secular protests is worth the cost and then deem

communicating religious ideas less valuable or

worthwhile. His discrimination against Calvary

Chapel’s broadcast of religious views palpably

violates this Court’s precedent, Rosenberger v. Rector

& Visitors of Univ. of Va., 515 U.S. 819, 830–31

(1995), as “favoring one viewpoint over others is

anathema to the First Amendment.” Calvary Chapel,

140 S. Ct. at 2608 (Alito, J., dissenting).

The Governor has suggested that multiple small

services, along with streaming capabilities, are good

enough for churches. ECF 39 at 7. But this Court has

repeatedly recognized “the close nexus between the

freedoms of speech and assembly.” NAACP v. Ala. ex

rel. Patterson, 357 U.S. 449, 460 (1958) (citations

omitted). The restriction of one necessarily restricts

the other. Cf. Whitney v. California, 274 U.S. 357, 375

(1927) (Brandeis, J., concurring) (“without free speech

and assembly discussion would be futile”).

The Governor’s personal appearance at a protest

highlights how the free speech and assembly rights

work in tandem. Penrose, supra p. 13 n.1. He could

have depended on tweets (ER 254, 256) or press

conferences (supra p. 13 n.2) to greet and encourage

protesters. But that would not have been nearly as

meaningful to the protesters since “[e]ffective

advocacy of both public and private points of view,

particularly controversial ones, is undeniably

enhanced by group association,” Patterson, 357 U.S.

at 460—not to mention the presence of the state’s

chief executive.

It is no answer to tell Calvary Chapel that it “is

only limited on the size of any service, rather than the

number of services and [has] the ability to

communicate in multiple ways.” ECF 39 at 7. The

Governor does not advise casinos that selling virtual

vacations and gambling is good enough to entice

patrons to part with their money from afar, or

encourage protesters to hold multiple, small protests

to effect social change. The inequality is blatant.

“The gathering of a large number of people to

show support for a cause undeniably attracts public

attention and can be an extremely effective way of

promoting the group’s message.” S. Or. Barter Fair v.

Jackson Cnty., 372 F.3d 1128, 1136 (9th Cir. 2004). It

also has religious significance. ER 653–54. For those

reasons, Calvary Chapel sought to convey its message

to a larger group of worshippers because its message

stands on at least an equal constitutional rung as the

protesters’. And the church’s message stands on a

much higher one than the commercial speech of

casinos, theme parks, bowling alleys, and other

businesses.

C. The Governor’s justifications for his

discrimination do not withstand scrutiny. Some amplify the constitutional

violation.

1. Gaming licenses. The Governor attempted to

justify the disparate treatment by saying casinos are

“privileged licensees.” ECF 39 at 4–6. He reasoned

that because casinos are licensees subject to

regulatory oversight and enforcement, the state can

readily shut casinos down or otherwise discipline

them if they don’t comply. Ibid. The district court

agreed. ER 7. These greater restrictions, the court

noted, include “training of the employees, financial

operations and other internal operations of casinos.”

Id. at 6. But this holding turns First Amendment

jurisprudence on its head, elevating a state-granted

privilege over a fundamental right to excuse more

favorable treatment of casinos. And accepting it

would render it impossible to show that any business

is comparable to a place or worship, since nearly every

Nevada business—if not all of them—is a privileged

licensee and therefore subject to regulatory oversight.

Neither Lukumi nor the Chief Justice’s

concurrence in South Bay established such a rule. The

relevant question is whether the law fails to “prohibit

nonreligious conduct that endangers [the state’s]

interests in a similar or greater degree than” the

prohibited religious conduct. Lukumi, 508 U.S. at 543.

And the Governor’s failure to impose a 50-person cap

at comparable secular establishments shows that the

Governor treats secular assemblies “more leniently”

than churches.

Unable to deny that casinos involve large groups

gathered together in close proximity for extended

periods, the Governor cited regulating casinos as a

talisman intended to ward off any comparison to

churches. ECF 39 at 4–5. This token fails. The

Governor identified no health or safety regulations

that purport to make casinos safer than places of

worship, id., nor could he.

2. All mass gatherings treated “equally.” The

Governor said that Directive 021 treated all mass

gatherings equally and is therefore neutral and

generally applicable. ECF 29 at 5–6, 12–14, 16; ECF

39 at 3. That argument is no longer valid after

Directive 033 and is semantics in any event. What he

meant is that Directive 021 limits all public

gatherings to no more than 50 people if the type of

gathering is not specifically mentioned elsewhere.

App.58a (§ 10). Ignoring the directive’s abundant

exceptions for large, close, and prolonged secular

assemblies—not to mention officials’ effective

exemption of mass protests—is irrational.

So the Governor backpedaled, saying that he

treats some comparable secular assemblies the same

as religious gatherings, some worse. ECF 29 at 13–14;

ECF 39 at 3. By this logic, the Governor could shut

down every worship gathering in the state if he barred

live audiences at some disfavored secular assemblies,

say, theater performances and concerts. That is not

the law. The Free Exercise Clause, “bars even ‘subtle

departures from neutrality’ on matters of religion.”

Masterpiece Cakeshop, 138 S. Ct. at 1731 (quoting

Lukumi, 508 U.S. at 534); Calvary Chapel, 140 S. Ct.

at 2613 (Kavanaugh, J., dissenting) (“In seeking to

justify the differential treatment” in cases where a

religious organization is treated less favorably than

other entities, “it is not enough for the government to

point out that other secular organizations or

individuals are also treated unfavorably”).

3. Commerce is different. The Governor says that

commerce differs from worship. ECF 29 at 7, 10–12,

14–16. True. Unlike commercial gatherings, the

rights to religious exercise, speech, and assembly are

“enshrined explicitly in the Constitution.” Espinoza,

140 S. Ct. at 2267 (Thomas, J., concurring). The

Governor’s failure to treat places of worship at least

as well as casinos, restaurants, theme parks, and

pools “devalues religious reasons for [congregating]

by judging them to be of lesser import than

nonreligious reasons” in violation of the First

Amendment. Lukumi, 508 U.S. at 537.

4. “Risky” religious gatherings. The Governor

contended that religious gatherings are somehow

riskier than the secular assemblies that Directive 021

prefers. ECF 39 at 7–8. As support, he offered the bald

statement of Dr. Azzam, Nevada’s Chief Medical

Officer, that “[i]n-person worship services pose

specific risks for disease transmission.” Id. at 7

(quoting ER 770 (¶ 22)). But the doctor notably

refrained from claiming that those “specific risks” are

unique to in-person worship services. See generally

ER 766–70. Instead, he asserted that “[i]ndividuals

attending large gatherings, including but not limited

to the types of events where there have been prior

instances of COVID-19 spreading, would be at

increased risk of disease and could be expected to

increase the spread of COVID-19 in their

communities and any other communities they visit.”

Id. at 769–70 (¶ 19) (emphasis added). This, too,

highlights the Governor’s disfavoring of worship.

The record does not support this different

treatment. An expert in infectious diseases testified

on Calvary Chapel’s behalf that “[t]here is no

scientific or medical reason that a religious service

that follows the guidelines issued by the CDC would

pose a more significant risk of spreading SARS-CoV2 than gatherings or interactions at other

establishments or institutions.” ER 105 (¶ 27). He

also testified that the health precautions Calvary

Chapel adopted for its in-person services are “equal to

or more extensive than those recommend by the CDC”

and that “there is no scientific or medical reason to

limit or restrict [the church’]s religious activities but

not similarly limit other gatherings or activities.” Id.

at 107 (¶¶ 35, 36). And the Governor previously

admitted that secular places like “gyms” and “fitness

establishments”—which operate at 50% capacity

under his directive—are exactly the sort of facilities

that “promote extended periods of public interaction

where the risk of transmission is high.” ER 705 (§ 2).

5. Protests problem. The Governor says that

Calvary Chapel’s argument about mass protests is

based on state officials’ “inability to prevent

spontaneous protests or to force local law enforcement

to arrest all those who violated Directive 021.” ECF

39 at 6. Not so. The Governor and Attorney General

could have agreed with the protesters’ message while

discouraging their mass gatherings and non-socialdistanced behavior. Spell v. Edwards, 962 F.3d 175,

181–82 (5th Cir. 2020) (Ho, J., concurring) (explaining

the difference between tolerance and support); Soos v.

Cuomo, ___ F. Supp. 3d ____, 2020 WL 3488742, at

*12 (N.D.N.Y. June 26, 2020), appeal pending, Nos.

20-2414, 20-2418 (2d Cir.). But state officials did no

such thing. Instead, they encouraged mass protests

and participated in them. ER 161–64, 254–56;

Penrose supra p. 13 n.1.

Neither may state officials deem applying the

directive to mass protests “not worth it” based on a

comparative-harm analysis while applying the

directive in full force to places of worship. ER 8. “The

protections of the Free Exercise Clause do not depend

on a ‘judgment-by-judgment analysis’ regarding

whether discrimination against religious adherents

would somehow serve ill-defined interests.” Espinoza,

140 S. Ct. at 2260 (cleaned up).

6. Jacobson. The Governor asked the lower court

to overlook his First Amendment violations under

Jacobson v. Massachusetts, 197 U.S. 11 (1905). ECF

29 at 9–11, 17–18; ECF 39 at 8. Yet Jacobson does not

change the constitutional analysis. Spell, 962 F.3d at

181 (Ho, J., concurring); S. Bay United Pentecostal

Church v. Newsom, 959 F.3d 938, 942–43 (9th Cir.

2020) (Collins, J., dissenting).

In Jacobson, this Court affirmed a five-dollar

criminal fine imposed on a Cambridge, Massachusetts resident who refused to comply with the city’s

mandatory vaccination regime, enacted in response to

a smallpox outbreak and which applied to everyone

equally. 197 U.S. at 13, 39. The Court rejected

Jacobson’s claim that the Fourteenth Amendment’s

guarantee of “liberty” entitled him to an exemption

that the law gave to no one else. Id. at 38; see Cruzan

v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278 (1990)

(Jacobson “balanced an individual’s liberty interest in

declining an unwanted smallpox vaccine against the

State’s interest in preventing disease”).

But even under Jacboson’s test, Directive 021

“would likely fail” because of its discriminatory

treatment of religion. Calvary Chapel, 140 S. Ct. at

2608 (Alito, J., dissenting). And it’s not even clear

Jacobson would apply to the circumstances here.

“Jacobson primarily involved a substantive due

process challenge to a local ordinance requiring

residents to be vaccinated for small pox. It is a

considerable stretch to read the decision as

establishing the test to be applied when statewide

measures of indefinite duration are challenged under

the First Amendment or other provisions not at issue

in that case.” Ibid. Jacobson does not justify Nevada’s

disparate treatment of churches and people of faith.

D. Directive 021 does not satisfy this

Court’s requirements for strict scrutiny.

Strict scrutiny applies because Directive 021

discriminated against religious gatherings and

favored secular speech and viewpoints over religious

speech and viewpoints. But the state cannot “prove

that [its] restriction furthers a compelling interest

and is narrowly tailored to achieve that interest.”

Reed, 576 U.S. at 171 (cleaned up). In fact, “Nevada

does not even try to argue that the directive can

withstand strict scrutiny.” Calvary Chapel, 140 S. Ct.

at 2608 (Alito, J., dissenting).

E. Calvary Chapel satisfies the other

preliminary-injunction requirements.

Because the Governor forbade Calvary Chapel

from holding religious services “in a way that

comparable secular businesses and persons can

conduct their activities,” Directive 021 harmed the

church’s free-exercise, free-speech, and free-assembly

rights. S. Bay, 140 S. Ct. at 1615 (Kavanaugh, J.,

dissenting). And “[t]he loss of First Amendment

freedoms, for even minimal periods of time,

unquestionably constitutes irreparably injury.” Elrod

v. Burns, 427 U.S. 347, 373 (1976).

The balance of equities also weighs heavily in

Calvary Chapel’s favor. If it is worth allowing large

crowds to gather in close proximity for extended

periods to enjoy non-constitutionally-protected activities at secular establishments, it is worth allowing

people to gather at places of worship to engage in the

constitutionally-protected free exercise of religion.

Last, when it comes to public interest, “there is

the highest public interest in the due observance of all

the constitutional guarantees,” United States v.

Raines, 362 U.S. 17, 27 (1960), including the free

exercise of religion, which “the text of the First

Amendment itself . . . gives special solicitude,”

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. E.E.O.C., 565 U.S. 171, 189 (2012).

II.

This case is an ideal vehicle to solve the

nationwide problem of government discrimination against churches in ad hoc

COVID-19 orders.

Governor Sisolak’s discriminatory treatment of

churches is so stark that four Justices would have

granted Calvary Chapel an injunction pending

appeal. Yet five Justices’ denial of such an

injunction—presumably under the high standard of

review—has extended the incursion on Calvary

Chapel’s free exercise and speech rights and has

resulted in conflicting lower-court decisions, some

denying churches equal treatment, e.g., Elim

Romanian Pentecostal Church v. Pritzer, 962 F.3d 341

(7th Cir. 2020) (pending in this Court as Case No. 20569) (allowing only small gatherings in churches but

large gatherings in restaurants and warehouses);

Harvest Rock Church, Inc. v. Newsom, __ F.3d __,

2020 WL 5835219 (9th Cir. Oct. 1, 2020) (injunction

pending appeal) (limiting in-person worship services

but treating more leniently, for example, attending

college classes); id. at *5 (O’Scannlain, J., dissenting),

and others vindicating church equality, e.g., Roberts

v. Neace, 958 F.3d 409, 414 (6th Cir. 2020) (per

curiam) (striking down Kentucky executive order that

placed harsher restrictions on churches than law

firms, laundromats, liquor stores, gun shops, airlines,

mining operations, funeral homes, and landscaping

businesses). Many more cases remain pending.12 The

12 E.g.,

Calvary Chapel of Bangor v. Mills, 459 F. Supp. 3d 273

(D. Me. 2020), injunction pending appeal denied, No. 20-1507,

2020 WL 3067488 (1st Cir. June 2, 2020); Soos v. Cuomo, ___ F.

Supp. 3d ____, 2020 WL 3488742 (N.D.N.Y. June 26, 2020),

appeal pending, Nos. 20-2414 & 20-2418 (2d Cir.); Cassell v.

Snyders, 458 F. Supp. 3d 981 (N.D. Ill. 2020), appeal pending,

Court should use this opportunity to grant the

petition and clarify for all that the First Amendment

does not allow government officials to use COVID-19

as an excuse to treat churches and their worshippers

worse than secular establishments and their patrons.

As noted at the outset, time is of the essence. If

the Court does not grant the petition by its last

January conference, it is a practical impossibility that

oral argument will be heard and an opinion issued

before the end of the 2020 Term. Any delay will cause

historically severe damage to First Amendment

rights: “[p]reventing congregants from worshipping

will cause irreparable harm.” Calvary Chapel, 140 S.

Ct. at 2609 (Alito, J., dissenting); see also Food &

Drug Admin. v. Am. Coll. of Obstetricians &

Gynecologists, ___ S. Ct. ____, 2020 WL 5951467, at

*1 (Oct. 8, 2020) (Alito, J., dissenting from holding

injunction application in abeyance) (“The free

exercise of religion . . . has suffered previously

unimaginable restraints [under COVID-19 executive

orders].”).

Certiorari is warranted, whether now or after any

adverse Ninth Circuit issues ruling on the merits of

Calvary Chapel’s preliminary-injunction appeal.

No. 20-1757 (CA7): Legacy Church, Inc. v. Kunkel, ___ F. Supp.

3d ____, 2020 WL 3963764 (D.N.M. July 13, 2020), appeal

pending, No. 20-2117 (10th Cir.); High Plains Harvest Church v.

Polis, 2020 WL 4582720 (D. Colo. Aug. 10, 2020), appeal

pending, No. 20-1280 (10th Cir.).

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

KRISTEN K. WAGGONER

JOHN J. BURSCH

ALLIANCE DEFENDING

FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(202) 393-8690

kwaggoner@ADFlegal.org

jbursch@ADFlegal.org

RYAN J. TUCKER

JEREMIAH J. GALUS

GREGG WALTERS

ALLIANCE DEFENDING

FREEDOM

15100 N. 90th Street

Scottsdale, AZ 85260

(480) 444-0020

rtucker@ADFlegal.org

jgalus@ADFlegal.org

gwalters@adflegal.org

NOVEMBER 2020

DAVID A. CORTMAN

Counsel of Record

RORY GRAY

ALLIANCE DEFENDING

FREEDOM

1000 Hurricane Shoals Rd.

NE, Suite D-1100

Lawrenceville, GA 30043

(770) 339-0774

dcortman@ADFlegal.org

rgray@ADFlegal.org

JASON D. GUINASSO

500 Damonte Ranch Pkwy

Suite 980

Reno, NV 89521

(775) 853-8746

jguinasso@hutchlegal.com

APPENDIX

APPENDIX TABLE OF CONTENTS

United States District Court

for the District of Nevada

Order Denying Emergency Motions for a

Temporary Restraining Order and

Preliminary Injunction

Issued June 11, 2020................................................ 1a

United States District Court

for the District of Nevada

Order Denying Motion to Stay Pending

Appeal

Issued June 19, 2020.............................................. 13a

United States Supreme Court

Order Denying Application for Injunctive

Relief

Issued July 24, 2020 .............................................. 19a

United States Court of Appeals

for the Ninth Circuit

Order Denying Emergency Motion for

Injunctive Relief Pending Appeal

Issued July 2, 2020 ................................................ 46a

United States Court of Appeals

for the Ninth Circuit

Order Denying Motion to Dismiss Appeal

Issued October 26, 2020 ......................................... 47a

U.S. Constitutional Provisions .............................. 49a

iia

State of Nevada, Governor Sisolak

COVID-19 Declaration of Emergency

Directive 021

Issued May 28, 2020 .............................................. 50a

State of Nevada, Governor Sisolak

COVID-19 Declaration of Emergency

Directive 033

Issued September 30, 2020 .................................... 84a

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

***

CALVARY CHAPEL DAYTON

VALLEY,

Plaintiff(s),

Case No. 3:20-cv00303-RFB-VCF

ORDER

STEVE SISOLAK

AARON FORD

FRANK HUNEWILL

Defendant(s).

INTRODUCTION

Before the Court are Plaintiff Calvary Chapel

Dayton Valley’s (“Calvary” or “Plaintiff”) Emergency

Motions for a Temporary Restraining Order and

Preliminary Injunction. ECF Nos. 9, 19. For the

following reasons, the Court denies both motions

without prejudice.

II.

PROCEDURAL BACKGROUND

Plaintiff brought its initial complaint on May 22,

2020 and filed the operative amended complaint on

May 28, 2020. ECF Nos. 1, 8. The complaint brought

facial and as-applied First and Fourteenth

Amendment challenges to Governor Sisolak’s

emergency directives in response to the COVID-19

pandemic. Id. Plaintiff filed a motion for a temporary

restraining order and preliminary injunction on May

28 and May 29, 2020. ECF Nos. 9, 19. The Court

denied Plaintiff’s motion to consider the motions on

an expedited basis. ECF Nos. 16, 23. Defendant Steve

Sisolak responded to the motions on June 2, 2020.

ECF Nos. 9, 19. Defendant Frank Hunewill joined

Defendant Sisolak’s response on that same date. ECF

No. 32. Plaintiff filed a supplement to its motion on

June 4, 2020 and Defendant Sisolak responded on

June 7, 2020. ECF Nos. 38, 39. The Court held a

hearing on the motions on June 9, 2020. This written

order now follows.

III.

FACTUAL BACKGROUND

The Court makes the following findings of fact.

Calvary Chapel Dayton Valley is a Christian church

in Dayton, Nevada that has operated since February

5, 2006. Calvary believes that the Bible commands

Christians to gather together in person for corporate

prayer and worship. On March 16, 2020, in response

to the ongoing coronavirus pandemic, Calvary

suspended in-person worship services. However,

Calvary sincerely believes that online services and

drive-in services thwart the Bible’s requirement of inperson services for corporate worship, and some

church attendees do not have internet access and

therefore are not able to participate in online services.

Calvary therefore wishes to resume in-person

services.

On May 26, 2020, Defendant Governor Sisolak

announced that Nevada would enter “Phase Two” of

its reopening. To that end, he issued Emergency

Directive 021 on May 28, 2020 (hereinafter the

“Emergency

Directive”

“Directive”).

The

Emergency Directive permits several categories of

business and social activity to resume, subject to

different restrictions. For example, Section 10 of the

directive prohibits gatherings in groups of more than

fifty people in any indoor or outdoor areas. Emergency

Directive 021, § 10. Communities of worship and

faith-based organizations are allowed to conduct inperson services so long as no more than fifty people

are gathered, while respecting social distancing

requirements. Id. at § 11. Section 20 similarly limits

movie theaters to a maximum of fifty people. Id. at

§20. Section 35 of the Emergency Directive allows

casinos to reopen at 50% their capacity and subject to

further regulations promulgated by the Nevada

Gaming Control Board. Id. at § 35.

IV.

LEGAL STANDARD

The analysis for a temporary restraining order is

“substantially identical” to that of a preliminary

injunction. Stuhlbarg Intern. Sales Co, Inc. v. John D.

Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir.

2001). A preliminary injunction is “an extraordinary

remedy that may only be awarded upon a clear

showing that the plaintiff is entitled to such relief.”

Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7,

22 (2008). To obtain a preliminary injunction, a

plaintiff must establish four elements: “(1) a

likelihood of success on the merits, (2) that the

plaintiff will likely suffer irreparable harm in the

absence of preliminary relief, (3) that the balance of

equities tips in its favor, and (4) that the public

interest favors an injunction.” Wells Fargo & Co. v.

ABD Ins. & Fin. Servs., Inc., 758 F.3d 1069, 1071 (9th

Cir. 2014), as amended (Mar. 11, 2014) (citing Winter,

555 U.S. 7, 20 (2008)). A preliminary injunction may

also issue under the “serious questions” test. Alliance

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134

(9th Cir. 2011) (affirming the continued viability of

this doctrine post-Winter). According to this test, a

plaintiff can obtain a preliminary injunction by

demonstrating “that serious questions going to the

merits were raised and the balance of hardships tips

sharply in the plaintiff’s favor,” in addition to the

other Winter elements. Id. at 1134-35 (citation

omitted).

DISCUSSION

The Court denies the motions because it finds

that Plaintiff has not demonstrated a likelihood of

success on its First Amendment Free Exercise claim.

The Court examines both the facial and as-applied

challenges to the Emergency Directive. The Court

incorporates by reference its findings made on the

record, which shall be construed consistent with this

written ruling.

a. Facial Challenge

The Free Exercise Clause of the First Amendment

provides that “Congress shall make no law respecting

an establishment of religion or prohibiting the free

exercise thereof.” Am. Family Ass’n, Inc v. City & Cty.

of San Francisco, 277 F.3d 1114, 1123 (9th Cir. 2002)

(citing U.S. Const. amend. I). A regulation or law

violates the Free Exercise clause when it is neither

neutral nor generally applicable, substantially

burdens a religious practice, and is not justified by a

substantial state interest or narrowly tailored to

achieve that interest. Id. (citing Church of Lukumi

Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 531 – 32

(1993)).

The Constitution principally entrusts “[t]he

safety and the health of the people” to the politically

accountable officials of the States “to guard and

protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38

(1905). When state officials “undertake[ ] to act in

areas fraught with medical and scientific

uncertainties,” their latitude “must be especially

broad.” Marshall v. United States, 414 U. S. 417, 427

(1974).

The Supreme Court examined the relationship

between COVID-19 related executive orders and the

Free Exercise Clause in its recent order in South Bay

United Pentecostal Church v. Newsom, No. 19A1044,

2020 WL 2813056 (May 29, 2020). In South Bay, the

Supreme Court denied an application for injunctive

relief enjoining enforcement of a portion of the

California governor’s executive order to limit the

spread of COVID-19. Id. The order limited attendance

at places of worship to 25% of building capacity or a

maximum of 100 attendees. Id. at 1. The Supreme

Court found that the restrictions appeared consistent

with the Free Exercise Clause of the First

Amendment. Id. Chief Justice Roberts first noted that

“[s]imilar or more severe restrictions apply to

comparable secular gatherings, including lectures,

concerts, movie showings, spectator sports, and

theatrical performances, where large groups of people

gather in close proximity for extended periods of

time.” Id. Chief Justice Roberts then explained that

the “[o]rder exempts or treats more leniently only

dissimilar activities, such as operating grocery stores,

banks or laundromats, in which people neither

congregate in large groups nor remain in close

proximity for extended periods.” Id. Finally, Chief

Justice Roberts concluded that, “[t]he precise

question of when restrictions on particular social

activities should be lifted during the pandemic is a

dynamic and fact-intensive matter subject to

reasonable disagreement,” and that when elected

officials “act in areas fraught with medical and

scientific uncertainties,” their latitude “must be

especially broad.” Id. (internal citations omitted).

“When those broad limits are not exceeded, they

should not be subject to second-guessing by an

unelected federal judiciary, which lacks the

background, competence and expertise to assess

public health and is not accountable to the people.” Id.

(internal citations omitted).

The Court finds the holding in South Bay

applicable to this case and holds that the Emergency

Directive is neutral and generally applicable and does

not burden Plaintiff’s First Amendment right to free

exercise. Consequently, the Court finds that Plaintiff

has not demonstrated a likelihood of success on the

merits of its claim.

Calvary argues that the Defendants in this case,

based upon the plain language of the Emergency

Directive, have violated the First Amendment by

‘exceeding the limits’ of their authority during a

public health crisis. Calvary bases its argument on

alleged differential treatment between itself and

other secular organizations/activities. Calvary points

to several secular businesses that it insists engage in

comparable activity in which people gather in large

groups and remain in close proximity for large periods

of time, including casinos, restaurants, nail salons,

massage centers, bars, gyms, bowling alleys and

arcades, all of which are allowed to operate at 50% of

official fire code capacity. Calvary specifically focuses

on casinos and includes photos in its briefing of

crowded casino gaming centers, after the state

reopened them on June 4. Given that any social

behavior increases the risk of covid-19 transmission,

Calvary argues, there is no scientific or medical

reason to distinguish between places of worship and

other comparable activities.

The Court agrees that church services may in

some respects be similar to casinos, in that both are

indoor locations in which a large number of people

may remain in close proximity for an extended period

of time. The Court, however, disagrees that casinos

are actually treated more favorably than places of

worship. During this phased reopening of Nevada by

the Governor, casinos are subject to substantial

restrictions and limitations required by the Nevada

Gaming Control Board which exist in addition to and

in conjunction with the requirements and oversight

provided by the Emergency Directive. See Emergency

Directive, § 35; Addendum to April 21, 2020 Policy

Memorandum posted May 29, 2020; 2020-30 Updated

Health and Safety Policies for Reopening after

Temporary Closure posted May 27, 2020; Health and

Safety Policy for the Resumption of Gaming

Operations Nonrestricted Licensees posted May 27,

2020; Procedures for Reopening after Temporary

Closure Due to COVID-19 posted April 21, 2020,

Gaming Control Board. Such additional regulatory

policies set forth requirements related not only to the

social distancing and placement of table games or slot

machines in the casino, for example, but they also set

forth requirements regarding training of the

employees, financial operations and other internal

operations of casinos. Id. These casinos are also

subject to regular and explicit inspection of all aspects

of the respective casino’s reopening plan. Id. Indeed,

gaming companies are one of the few categories of

organizations in which the directive specifically

discusses enforcement and punishment alternatives

for violating the directive and concomitant promulgated regulations. Emergency Directive, §35. Casinos

are therefore subject to heightened regulation and

scrutiny under these guidelines in comparison to

churches, regardless of the difference in occupancy

cap. The Court finds that while Calvary focuses on the

fifty-person cap, it fails to consider the totality of

restrictions placed upon casinos in their comparative

analysis. Thus, even if the Court were to accept

casinos as the nearest point of comparison for its

analysis of similar activities and their related

restrictions imposed by the Governor, the Court

would nonetheless find that casinos are subject to

much greater restrictions on their operations and

oversight of their entire operations than places of

worship.

The Court also finds that other secular entities

and activities similar in nature to church services

have been subject to similar or more restrictive

limitations on their operations. The Court notes that

church services consist of activities, such as sermons

and corporate worship, that are comparable in terms

of large numbers of people gathering for an extend

period of time to lectures, museums, movie theaters,

specified trade/technical schools, nightclubs and

concerts. All of these latter activities are also subject

to the fifty-person cap or remain banned altogether

under Emergency Directive. See Emergency

Directive, §§ 20, 22, 27, 30, 32. Given that there are

some secular activities comparable to in-person

church services that are subject to more lenient

restrictions, and yet other activities arguably

comparable to in-person church services that are

subject to more stringent restrictions, the Court

cannot find that the Emergency Directive is an

implicit or explicit attempt to specifically target

places of worship. Lukumi, 508 U.S. at 534 (striking

down city council ordinance that specifically targeted

and forbid animal sacrifices made by a particular

religious group). Additionally, whether a church is

more like a casino or more like a concert or lecture

hall for purposes of assessing risk of COVID-19

transmission is precisely the sort of “dynamic and

fact-intensive”

decision-making

“subject

reasonable disagreement,” that the Court should

refrain from engaging in. South Bay, 2020 WL

2813056, at * 1. As the Court finds that the

Emergency Directive is neutral and generally

applicable, there is no facial Free Exercise challenge,

and Calvary has therefore not demonstrated a

likelihood of success on the merits of this claim.

b. As-Applied Free Exercise Challenge:

Selective Enforcement

In its briefing Calvary also brings an as-applied

challenge selective enforcement claim. Specifically,

Calvary points to statements made by the Governor

and the Attorney General regarding recent protests to

argue that the section of the Emergency Directive

banning more than fifty people from gathering,

whether inside or outside, is not being enforced

against secular activity. Calvary also includes

photographs from casinos which appear to indicate

10a

violations of the social distancing requirements of the

Directive and photos from Fremont Street in

downtown Las Vegas in which it appears that far

more than fifty people have gathered.

First, the Court is not persuaded that outdoor

protest activity is similar to places of worship in terms

of the nature of the activity and its ability to be

regulated. Outdoor protests involve dynamic large

interactions where state officials must also consider

the public safety implications of enforcement of social

distancing. That is to say that such enforcement could

result in greater harm than that sought to be avoided

by the Directive. The choice between which

regulations or laws shall be enforced in social settings

is a choice allocated generally to the executive, not the

judiciary, absent clear patterns of unconstitutional

selective enforcement.

Moreover, the Court finds that Calvary has not

provided a sufficient evidentiary basis for its asapplied challenge. For a selective enforcement claim,

it is not enough for Calvary to demonstrate that the

directive is intermittently not being enforced against

secular activities. Calvary must also demonstrate

that Defendants are only enforcing the directive

against places of worship. See Stormans, Inc v.

Wiseman, 794 F.3d 1064, 1083 (9th Cir. 2015) (finding

no evidence of selective enforcement against

religiously affiliated pharmacies in enforcement of

drug delivery rules). The Plaintiffs have not

presented evidence of such a pattern of selective

enforcement. While images of crowded casinos

attached to its submission may raise a potential

future issue of selective enforcement, the Court must

11a

have more evidence than this to find a likelihood of

success on the merits of a selective enforcement claim.

The Plaintiff’s selective enforcement claim is

premature. The story of the enforcement of these

directives has yet to be written. Indeed, the primary

official tasked with enforcing the Emergency

Directive in Lyon County is the Lyon County Sheriff.

Defendant Sheriff Frank Hunewill has indicated

through counsel that he has no intention of using

limited law enforcement resources to enforce the

directive against Calvary or other places of worship.

Calvary has presented no evidence indicating that it

has been subject to actual enforcement by the Sheriff

or any other law enforcement officer. Calvary

therefore has not demonstrated a likelihood of success

on the merits of its selective enforcement claim. If

Calvary does in fact have evidence of selective

enforcement against it, nothing in this order shall

prohibit it from returning to the Court with that

evidence and filing a new motion for a preliminary

injunction.

///

12a

VI.

CONCLUSION

IT IS THEREFORE ORDERED that Plaintiff’s

Emergency Motion for Temporary Restraining Order

and Emergency Motion for Preliminary Injunction

(ECF Nos. 9, 19) are DENIED.

IT IS FURTHER ORDERED that the Motion

for Leave (ECF No. 41) is DENIED without prejudice.

The Court does grant Plaintiff leave to file a new

subsequent motion for injunctive relief in which it

may provide more evidence for an as-applied

challenge to the Emergency Directive. The Court

finds that full briefing would be appropriate for

consideration of any additional evidence presented by

any party.

DATED June 11, 2020.

13a

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

***

CALVARY CHAPEL DAYTON

VALLEY,

Plaintiff(s),

Case No. 3:20-cv00303-RFB-VCF

ORDER

STEVE SISOLAK, in his

official capacity as Governor of

Nevada; AARON FORD, in his

official capacity as Attorney

General of Nevada; and

FRANK HUNEWILL, in his

official capacity as Sheriff of

Lyon County,

Defendant(s).

Plaintiff Calvary Chapel Dayton Valley moves

this Court to stay the effect of its June 11, 2020 Order

denying Plaintiff’s Emergency Motions for a

Temporary Restraining Order and Preliminary

Injunction pursuant to Federal Rule of Appellate

Procedure 8(a)(1) and Federal Rule of Civil Procedure

62(d). Fed. R. App. P. 8(a)(1); Fed. R. Civ. P. 62(d).

Plaintiff has appealed the Court’s Order, but also

requests that the Court reconsider its prior denial of

the Motion and issue an injunction. Ordinarily,

14a

“[w]hen a notice of appeal is filed, jurisdiction over the

matters being appealed . . . transfers from the district

court to the appeals court.” Mayweathers v. Newland,

258 F.3d 930, 935 (9th Cir. 2001). Rule 62(d) however,

provides an exception that allows parties who wish to

stay or otherwise modify the effect of an injunction

that is being appealed to move the district court to

stay the effect of the judgment or order pending that

appeal. Fed. R. Civ. P. 62(d); Mayweathers, 258 F.3d

at 935.

The issuance of a stay is “an exercise of discretion”

and not a “matter of right.” Nken v. Holder, 556 U.S.

418, 433 – 34 (2009). “The party requesting the stay

bears the burden of showing that the circumstances

justify an exercise of that discretion.” Id. at 434. In

considering whether to grant a stay, the Court must

consider “(1) whether the stay applicant has made a

strong showing that he is likely to succeed on the

merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay

will substantially injure the other parties interested

in the proceeding; and (4) where the public interest

lies.” Id. The first two factors are the most critical. Id.

The Court first notes that Plaintiff’s motion

should actually be construed as a motion for

reconsideration. As the Court has not issued an

injunction or otherwise ordered any particular action

by any party, there is no conduct or action to be

‘stayed.’ And, as an appeal has been filed, it would not

be appropriate for the Court to reconsider its order

after the filing of the appeal, which divests this Court

of jurisdiction. See City of Los Angeles, Harbor Div. v.

Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir.

2001) (“As long as a district court has jurisdiction over

15a

the case, then it possesses the inherent procedural

power to reconsider, rescind, or modify an

interlocutory order for cause seen by it to be

sufficient.”)(internal citations omitted).

However, even applying the stay analysis

standard, the Court nevertheless denies Plaintiff’s

motion because Plaintiff has not demonstrated a

strong showing of a likelihood of success on the merits

of its claims. As the Court determined in its June 11,

2020 Order, Plaintiff has failed to demonstrate that

the Emergency Directive with which it takes issue

violates Plaintiff’s First Amendment rights. Rather

than repeat in detail that reasoning here, the Court

simply incorporates by reference its June 11, 2020.

Order Dated June 11, 2020, ECF No. 43, 4 – 9.

Moreover, the Court takes judicial notice1 of

recent developments and makes additional findings

that further indicate that Plaintiff cannot demonstrate a strong showing of likelihood of success on the

merits. First, much of Plaintiff’s argument has

focused on Defendants’ treatment of casinos, which

Plaintiff argues are not subject to the fifty-person cap,

in an example of preferential treatment given to

secular spaces over religious ones. But, as the Court

stated in its prior Order, the regulatory regime to

which casinos are subject is much more intrusive and

expansive—and subject to sudden modification—than

the regulatory regime applied to places of worship. To

this point, just two days ago, on June 17, 2020, the

1 See Fed. R. Evid. 201(b); (d) (court may, at any stage of the

proceeding, judicially notice facts not subject to reasonable

dispute if those facts are not subject to reasonable dispute and

from sources whose accuracy cannot reasonably be questioned).

16a

Nevada Gaming Control Board issued Notice # 202043, which, among other changes, now requires all

patrons of casinos to wear face coverings at table and

card games if there is no barrier, partition, or shield

between the dealer and each player or other person

within six feet of the table. See Updated Health and

Safety Policies for Reopening After Temporary

Closure, Nevada Gaming Control Board, https://

gaming.nv.gov/modules/showdocument.aspx?docume

ntid=16837 (last accessed June 18, 2020). This

updated regulation will result in a substantial

number of patrons at gaming establishments having

to wear face coverings while in the common gaming

area of such establishments. The Governor did not

modify his prior Emergency Directive to require face

coverings for individuals who go to places of worship

and participate in religious services. Thus, the Court

finds that casinos are now subject to some more

severe restrictions on their activities than are places

of worship. Moreover, the Court reiterates the point

that the Court made in its prior Order—that “while

Calvary focuses on the fifty-person cap, it fails to

consider the totality of restrictions placed upon

casinos [and other entities] in [its] comparative

analysis.” Order Dated June 11, 2020, ECF No. 43, at

7. That the Nevada Gaming Control Board suddenly

changed its regulations is also another example of the

dynamic nature of public health regulations during

this time period and the need for the Court to exercise

restraint. The Court emphasizes that the Emergency

Directive must be considered in light of the various

measures it imposes and all the various social

activities that it covers.

17a

The Court also takes judicial notice of the fact

that Nevada just yesterday experienced a recordbreaking day of increased viral infections. See Mike

Brunker, Nevada Adds 410 New COVID-19 Cases,

Clark County More Than 300,( June 19, 2020, 8:22

AM)

https://www.reviewjournal.com/news/politicsand-government/clark-county/nevada-adds-410-newcovid-19-cases-clark-county-more-than-300-2056621/

(last accessed June 19, 2020). As the Court previously

found and continues to find, Plaintiff’s requested

relief would require the Court to engage in potentially

daily or weekly decisions about public health

measures that have traditionally been left to state

officials and state agencies with expertise in this area.

The Plaintiff asks to the Court to intercede as to one

measure, yet this one measure is part of a whole

scheme of regulations imposed and monitored by

state officials. The Court does not find a basis to do so

at this point. See generally, Armstrong v. Davis, 275

F.3d 849, 872 (9th Cir. 2001)(noting that courts

should be cautious about imposing injunctive relief

that requires the “continuous supervision” of state

officials) abrogated on other grounds by Johnson v.

California, 543 U.S. 499 (2005).

Additionally, the recent update in the regulations

regarding casinos also undercuts Plaintiff’s asapplied challenge. No similar additional regulations

have been placed on places of worship. It is difficult to

establish a pattern of selective enforcement directed

towards places of worship when new, more restrictive

measures have been imposed against secular

activities and no similar restrictions were imposed on

religious activities.

18a

The Court further does not find that Plaintiff has

established irreparable injury if the stay is not

granted. Although a constitutional violation is an

irreparable injury, Plaintiff has not demonstrated

that its constitutional rights have been violated.

Furthermore, as the Court already discussed in its

prior Order, Plaintiff has submitted no evidence of

enforcement of the ordinance against it with regard to

its as-applied challenge.

Finally, the Court finds that the public interest

and the harm to the opposing party weigh in favor of

allowing the Court’s order to proceed. There is a

strong public interest in Defendants enforcing their

regulations regarding the COVID-19 pandemic, and

absent a showing that doing so violates a person’s

rights, Defendants should be allowed to proceed

unimpeded.

For all of the reasons stated,

IT IS THEREFORE ORDERED that Plaintiff’s

Motion for An Injunction (ECF No. 47) is DENIED.

DATED: June 19, 2020.

19a

Cite as: 591 U. S. ____ (2020)

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19A1070

_________________

CALVARY CHAPEL DAYTON VALLEY v. STEVE

SISOLAK, GOVERNOR OF NEVADA, ET AL.

ON APPLICATION FOR INJUNCTIVE RELIEF

[July 24, 2020]

The application for injunctive relief presented to

JUSTICE KAGAN and by her referred to the Court is

denied.

JUSTICE ALITO, with whom JUSTICE THOMAS and

JUSTICE KAVANAUGH join, dissenting from denial of

application for injunctive relief.

The Constitution guarantees the free exercise of

religion. It says nothing about the freedom to play

craps or black-jack, to feed tokens into a slot machine,

or to engage in any other game of chance. But the

Governor of Nevada apparently has different

priorities. Claiming virtually un-bounded power to

restrict constitutional rights during the COVID–19

pandemic, he has issued a directive that severely

limits attendance at religious services. A church,

synagogue, or mosque, regardless of its size, may not

admit more than 50 persons, but casinos and certain

other favored facilities may admit 50% of their

maximum occupancy—and in the case of gigantic Las

20a

Vegas casinos, this means that thousands of patrons

are allowed.

That Nevada would discriminate in favor of the

powerful gaming industry and its employees may not

come as a surprise, but this Court’s willingness to

allow such discrimination is disappointing. We have

a duty to defend the Constitution, and even a public

health emergency does not absolve us of that

responsibility.

Calvary Chapel Dayton Valley is a church located

in rural Nevada. It wishes to host worship services for

about 90 congregants, a figure that amounts to 50%

of its fire-code capacity. In conducting these services,

Calvary Chapel plans to take many precautions that

go beyond anything that the State requires. In

addition to asking congregants to adhere to proper

social distancing protocols, it intends to cut the length

of services in half. It also plans to require six feet of

separation between families seated in the pews, to

prohibit items from being passed among the congregation, to guide congregants to designated doorways

along one-way paths, and to leave sufficient time

between services so that the church can be sanitized.

According to an infectious disease expert, these

measures are “equal to or more extensive than those

recommended by the CDC.” Electronic Court Filing in

No. 3:20–CV–00303, Doc. 38–31 (D Nev., June 4,

2020), p. 6 (ECF).

Yet hosting even this type of service would violate

Directive 21, Nevada Governor Steve Sisolak’s phasetwo reopening plan, which limits indoor worship

services to “no more than fifty persons.” ECF Doc. 38–

21a

2, §11. Meanwhile, the directive caps a variety of

secular gatherings at 50% of their operating capacity,

meaning that they are welcome to exceed, and in some

cases far exceed, the 50-person limit imposed on

places of worship.

Citing this disparate treatment, Calvary Chapel

brought suit in Federal District Court and sought an

injunction allowing it to conduct services, in

accordance with its plan, for up to 50% of maximum

occupancy. The District Court refused to grant relief,

the Ninth Circuit denied Calvary Chapel’s application

for an injunction pending appeal, and now this Court

likewise denies relief.

I would grant an injunction pending appeal.

Calvary Chapel is very likely to succeed on its claim

that the directive’s discriminatory treatment of

houses of worship violates the First Amendment. In

addition, unconstitutionally preventing attendance at

worship services inflicts irreparable harm on Calvary

Chapel and its congregants, and the State has made

no effort to show that conducting services in accordance with Calvary Chapel’s plan would pose any

greater risk to public health than many other

activities that the directive allows, such as going to

the gym. The State certainly has not shown that

church attendance under Calvary Chapel’s plan is

riskier than what goes on in casinos.

For months now, States and their subdivisions

have responded to the pandemic by imposing

unprecedented restrictions on personal liberty,

including the free exercise of religion. This initial

response was understandable. In times of crisis,

public officials must respond quickly and decisively to

22a

evolving and uncertain situations. At the dawn of an

emergency—and the opening days of the COVID–19

outbreak plainly qualify—public officials may not be

able to craft precisely tailored rules. Time,

information, and expertise may be in short supply,

and those responsible for enforcement may lack the

resources needed to administer rules that draw fine

distinctions. Thus, at the outset of an emergency, it

may be appropriate for courts to tolerate very blunt

rules. In general, that is what has happened thus far

during the COVID–19 pandemic.

But a public health emergency does not give

Governors and other public officials carte blanche to

disregard the Constitution for as long as the medical

problem persists. As more medical and scientific

evidence becomes available, and as States have time

to craft policies in light of that evidence, courts should

expect policies that more carefully account for

constitutional rights. Governor Sisolak issued the

directive in question on May 28, more than two

months after declaring a state of emergency on March

12. Now four months have passed since the original

declaration. The problem is no longer one of exigency,

but one of considered yet discriminatory treatment of

places of worship.

Calvary Chapel argues that the Governor’s

directive violates both the Free Exercise Clause and

the Free Speech Clause of the First Amendment, and

I agree that Calvary Chapel has a very high likelihood

of success on these claims.

23a

Under the Free Exercise Clause, restrictions on

religious exercise that are not “neutral and of general

applicability” must survive strict scrutiny. Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520,

531 (1993). “[T]he minimum requirement of

neutrality is that a law not discriminate on its face,”

id., at 533, and “[t]he Free Exercise Clause bars even

‘subtle departures from neutrality’ on matters of

religion.” Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Comm’n, 584 U. S. ___, ___ (2018) (slip

op., at 17) (quoting Church of Lukumi, 508 U. S., at

534). Here, the departure is hardly subtle. The

Governor’s directive specifically treats worship

services differently from other activities that involve

extended, indoor gatherings of large groups of people.

The face of the directive provides many examples.

While “houses of worship” may admit “no more than

fifty persons,” ECF Doc. 38–2, §11, many favored

facilities that host indoor activities may operate at

50% capacity. Privileged facilities include bowling

alleys, §20, breweries, §26, fitness facilities, §28, and

most notably, casinos, which have operated at 50%

capacity for over a month, §35; ECF Doc. 38–3, p. 5,

sometimes featuring not only gambling but live circus

acts and shows.

For Las Vegas casinos, 50% capacity often means

thousands of patrons, and the activities that occur in

casinos frequently involve far less physical distancing

and other safety measures than the worship services

that Calvary Chapel proposes to conduct. Patrons at

a craps or blackjack table do not customarily stay six

feet apart. Casinos are permitted to serve alcohol,

24a

which is well known to induce risk taking, and

drinking generally requires at least the temporary

removal of masks. Casinos attract patrons from all

over the country. In anticipation of reopening, one

casino owner gave away 2,000 one-way airline tickets

to Las Vegas. ECF Doc. 38–9, p. 4. And when the

Governor announced that casinos would be permitted

to reopen, he invited visitors to come to the State.1

The average visitor to Las Vegas visits more than six

different casinos, potentially gathering with far more

than 50 persons in each one. ECF Doc. 38–6, p. 44.

Visitors to Las Vegas who gamble do so for more than

two hours per day on average, id., at 43, and gamblers

in a casino often move from one spot to another, trying

their luck at different games or at least at different

slot machines.

Houses of worship can—and have—adopted rules

that provide far more protection. Family groups can

be given places in the pews that are more than six feet

away from others. Worshippers can be required to

wear masks throughout the service or for all but a

very brief time. Worshippers do not customarily

travel from distant spots to attend a particular

church; nor do they generally hop from church to

church to sample different services on any given

Sunday. Few worship services last two hours.

(Calvary Chapel now limits its services to 45

minutes.) And worshippers do not generally mill

around the church while a service is in progress.

See Jones, Nevada Governor Green-Lights June 4

Reopening of Casinos; Las Vegas Gets Ready, L. A. Times (May

26, 2020), www.latimes.com/travel/story/2020-05-26/nevadagovernor-oks-reopening-vegas-prepares.

25a

The idea that allowing Calvary Chapel to admit

90 worshippers presents a greater public health risk

than allowing casinos to operate at 50% capacity is

hard to swallow, and the State’s efforts to justify the

discrimination are feeble. It notes that patrons at

gaming tables are supposed to wear masks and that

the service of food at casinos is now limited, but

congregants in houses of worship are also required to

wear masks, and they do not consume meals during

services.

The State notes that facilities other than houses

of worship, such as museums, art galleries, zoos,

aquariums, trade schools, and technical schools, are

also treated less favorably than casinos, but obviously

that does not justify preferential treatment for

casinos.

Finally, the State argues that preferential

treatment for casinos is justified because the State is

in a better position to enforce compliance by casinos,

which are under close supervision by state officials

and subject to penalties if they violate state rules. By

contrast, the State notes, rules for houses of worship

must be enforced by local authorities.

This argument might make some sense if

enforcing the 50% capacity rule were materially

harder than enforcing a flat 50-person rule. But there

is no reason to think that is so, let alone that it would

be compelling enough to justify differential treatment

of religion. Local officials responsible for enforcing

maximum occupancy limits during normal times

presumably know or can easily ascertain the limit for

particular churches, and the State does not claim that

these officials have any trouble enforcing those limits.

26a

In many jurisdictions, buildings that host gatherings

are required to post their maximum occupancy figure

in a prominent location. Enforcing a 50% limit would

not require local officials to do anything more than

divide that figure in half, and there is no reason to

think that enforcing that limit would be any harder

than enforcing a 50-person maximum.

Moreover, even if the State’s special regulatory

power over casinos could justify different rules for

those facilities, the State would still have no

explanation why facilities like bowling alleys,

arcades, and fitness centers are also given the benefit

of the 50% rule. And while the State suggests that it

strictly enforces the rules applicable to casinos,

photos and videos taken in casinos after they were

allowed to reopen show widespread and blatant safety

violations. Patrons without masks are seen at close

quarters, and the State has not brought to our

attention any evidence that it has cracked down on

non-complying casinos. The sharp spike in COVID–19

cases since the casinos reopened belies the State’s

strict enforcement claims.

While the directive’s treatment of casinos stands

out, other facilities are also given more favorable

treatment than houses of worship. Take the example

of bowling alleys. Some Las Vegas bowling alleys

where tournaments are held can seat hundreds of

spectators, and under the directive, these facilities

may admit up to 50% of capacity. Not only that, the

State tolerates seating arrangements at these

facilities that pose far more danger than the plan

Calvary Chapel proposes. An official state guidance

document states that groups of up to 50 people may

sit together in the grandstands of a bowling alley

27a

provided that they maintain social distancing from

other groups. ECF Doc. 38–5, p. 9. Thus, while

Calvary Chapel cannot admit more than 50

congregants even if families sit six feet apart,

spectators at a bowling tournament can sit together in

groups of 50 provided that each group maintains

social distancing from other groups.

In sum, the directive blatantly discriminates

against houses of worship and thus warrants strict

scrutiny under the Free Exercise Clause.

The directive fares no better under the Free

Speech Clause. Laws that restrict speech based on the

viewpoint it expresses are presumptively unconstitutional, see, e.g., Iancu v. Brunetti, 588 U. S. ___, ___–

___ (2019) (slip op., at 4–5), and under our cases

religion counts as a viewpoint, Rosenberger v. Rector

and Visitors of Univ. of Va., 515 U. S. 819, 831 (1995).

Here, the Directive plainly discriminates on the basis

of viewpoint. Compare the directive’s treatment of

casino entertainment and church services. Both

involve expression, but the directive favors the

secular expression in casino shows over the religious

expression in houses of worship.

Calvary Chapel has also brought to our attention

evidence that the Governor has favored certain

speakers over others. When large numbers of

protesters openly violated provisions of the Directive,

such as the rule against groups of more than 50

people, the Governor not only declined to enforce the

directive but publicly supported and participated in a

protest. Cf. Masterpiece Cakeshop, 584 U. S., at ___–

___ (slip op., at 14–16). He even shared a video of

28a

protesters standing shoulder to shoulder. The State’s

response to news that churches might violate the

directive was quite different. The attorney general of

Nevada is reported to have said, “ ‘You can’t spit . . .

in the face of law and not expect law to respond.’ ”2

Public protests, of course, are themselves

protected by the First Amendment, and any efforts to

restrict them would be subject to judicial review. But

respecting some First Amendment rights is not a

shield for violating others. The State defends the

Governor on the ground that the protests expressed a

viewpoint on important issues, and that is

undoubtedly true, but favoring one viewpoint over

others is anathema to the First Amendment.

Once it is recognized that the directive’s

treatment of houses of worship must satisfy strict

scrutiny, it is apparent that this discriminatory

treatment cannot survive. Indeed, Nevada does not

even try to argue that the directive can withstand

strict scrutiny.

Having allowed thousands to gather in casinos,

the State cannot claim to have a compelling interest

in limiting religious gatherings to 50 people—

regardless of the size of the facility and the measures

adopted to prevent the spread of the virus. “[A] law

cannot be regarded as protecting an interest of the

highest order . . . when it leaves appreciable damage

2 Application 8, and n. 6 (quoting Lochhead, Sisolak, Elected

Nevada Officials Discuss Systemic Racism, Reform, Las Vegas

Review-Journal (June 5, 2020), www.reviewjournal.com/news/

politics-and-government/nevada/sisolak-elected-nevada-officials

-discuss-systemic-racism-reform-2045833/).

29a

to that supposedly vital interest unprohibited.”

Church of Lukumi, 508 U. S., at 547 (internal quotation marks omitted). And even if the 50-person limit

served a compelling interest, the State has not shown

that public safety could not be protected at least as

well by measures such as those Calvary Chapel

proposes to implement.

The State’s primary defense of the directive’s

treatment of houses of worship is based on two

decisions of this Court. Quoting certain language in

Jacobson v. Massachusetts, 197 U. S. 11 (1905),

Nevada argues that “when a state exercises emergency police powers to enact an emergency public

health measure, courts will uphold it unless (1) there

is no real or substantial relation to public health, or

(2) the measures are ‘beyond all question’ a ‘plain[,]

palpable [invasion] of rights secured by the

fundamental law.’ ” Response to Application 11

(quoting Jacobson, 197 U. S., at 31).

Even

under

this

test,

the

directive’s

discriminatory treatment would likely fail for the

reasons already explained. And in any event, it is a

mistake to take language in Jacobson as the last word

on what the Constitution allows public officials to do

during the COVID–19 pandemic. Language in

Jacobson must be read in context, and it is important

to keep in mind that Jacobson primarily involved a

substantive due process challenge to a local ordinance

requiring residents to be vaccinated for small pox.3 It

The Court brushed aside Jacobson’s claims that the

challenged law violated the Preamble and the spirit of the

Constitution. Jacobson, 197 U. S., at 22. His claim under the

30a

is a considerable stretch to read the decision as

establishing the test to be applied when statewide

measures of indefinite duration are challenged under

the First Amendment or other provisions not at issue

in that case.

The State also points to the Court’s recent refusal

to issue a temporary injunction against enforcement

of a California law that limited the number of persons

allowed to attend church services. See South Bay

United Pentecostal Church v. Newsom, 590 U. S. ___

(2020). I dissented from that decision, see ibid.; see

also id., at ___ (KAVANAUGH, J., dissenting), but even

if it is accepted, that case is different from the one now

before us. In South Bay, a church relied on the fact

that the California law treated churches less

favorably than certain other facilities, such as

factories, offices, supermarkets, restaurants, and

retail stores. But the law was defended on the ground

that in these facilities, unlike in houses of worship,

“people neither congregate in large groups nor remain

in close proximity for extended periods.” Id., at ___

(ROBERTS, C. J., concurring) (slip op., at 2). That

cannot be said about the facilities favored in Nevada.

In casinos and other facilities granted preferential

treatment under the directive, people congregate in

Privileges or Immunities Clause of the Fourteenth Amendment

was doomed by the Slaughter-House Cases, 16 Wall. 36, 76–80

(1873), and was not addressed by the Court. Finally, the Court

quickly rejected his equal protection claim, Jacobson, 197 U. S.,

at 30, which was based on the law’s exemption for children and

persons under guardianship, see Commonwealth v. Jacobson,

decided with Commonwealth v. Pear, 183 Mass. 242, 248, 66

N. E. 719, 722 (1903).

31a

large groups and remain in close proximity for

extended periods.

An injunction pending appeal is warranted in this

case. Calvary Chapel’s First Amendment claims are

very likely to succeed. Indeed, it can be said that its

“legal rights . . . are indisputably clear,” Turner

Broadcasting System, Inc. v. FCC, 507 U. S. 1301,

1303 (1993) (Rehnquist, C. J., in chambers) (internal

quotation marks omitted), and the equities also favor

Calvary Chapel. Preventing congregants from

worshipping will cause irreparable harm, and the

State has made no effort to show that Calvary

Chapel’s plans would create a serious public health

risk.

I would issue an injunction barring the State,

pending appeal, from interfering with worship

services conducted at Calvary Chapel in accordance

with its stated plan and the general facemask

requirement. I therefore respectfully dissent.

GORSUCH, J., dissenting

JUSTICE GORSUCH, dissenting from denial of

application for injunctive relief.

This is a simple case. Under the Governor’s edict,

a 10-screen “multiplex” may host 500 moviegoers at

any time. A casino, too, may cater to hundreds at once,

with perhaps six people huddled at each craps table

here and a similar number gathered around every

roulette wheel there. Large numbers and close

quarters are fine in such places. But churches,

32a

synagogues, and mosques are banned from admitting

more than 50 worshippers—no matter how large the

building, how distant the individuals, how many wear

face masks, no matter the precautions at all. 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.

KAVANAUGH, J., dissenting

JUSTICE KAVANAUGH, dissenting from denial of

application for injunctive relief.

I join JUSTICE ALITO’s dissent in full and

respectfully add these further comments.

Under its current reopening plan, Nevada allows

restaurants, bars, casinos, and gyms to grant

entrance to up to 50% of their total occupancy limit—

no matter how many people that may be. For

example, a casino with a 500-person occupancy limit

may let in up to 250 people. By contrast, places of

worship may only take in a maximum of 50 people,

without exception, regardless of the occupancy cap. So

unlike a casino next door, a church with a 500-person

occupancy limit may let in only 50 people, not 250

people. Nevada has offered no persuasive justification

for that overt discrimination against places of

worship. The risk of COVID–19 transmission is at

least as high at restaurants, bars, casinos, and gyms

as it is at religious services. Indeed, people congrega-

33a

ting in restaurants, bars, casinos, and gyms often

linger at least as long as they do at religious services.

And given the safety measures that Calvary Chapel

and other places of worship are following—including

social distancing, mask wearing, and certain

additional voluntary measures—it is evident that

people interact with others at restaurants, bars,

casinos, and gyms at least as closely as they do at

religious services.

In my view, Nevada’s discrimination against

religious services violates the Constitution. To be

clear, a State’s closing or reopening plan may subject

religious organizations to the same limits as secular

organizations. And in light of the devastating

COVID–19 pandemic, those limits may be very strict.

But a State may not impose strict limits on places of

worship and looser limits on restaurants, bars,

casinos, and gyms, at least without sufficient

justification for the differential treatment of religion.

As I will explain, Nevada has thus far failed to provide

a sufficient justification, and its current reopening

plan therefore violates the First Amendment.

In Part I, I will explain how this case fits into the

Court’s broader religion jurisprudence. In Part II, I

will explain why Nevada’s treatment of religious

organizations is unconstitutional under the Court’s

precedents.

Religion cases are among the most sensitive and

challenging in American law. Difficulties can arise at

the outset because the litigants in religion cases often

disagree about how to characterize a law. They may

disagree about whether a law favors religion or

34a

discriminates against religion. They may disagree

about whether a law treats religion equally or treats

religion differently. They may disagree about what it

means for a law to be neutral toward religion.

The definitional battles over what constitutes

favoritism, discrimination, equality, or neutrality can

influence, if not decide, the outcomes of religion cases.

But the parties to religion cases and the judges

deciding those cases often do not share a common

vocabulary or common background principles. And

that disconnect can muddy the analysis, build

resentment, and lead to litigants and judges talking

past one another.

In my view, some of the confusion and

disagreement can be averted by first identifying and

distinguishing four categories of laws: (1) laws that

expressly discriminate against religious organizations; (2) laws that expressly favor religious

organizations; (3) laws that do not classify on the

basis of religion but apply to secular and religious

organizations alike; and (4) laws that expressly treat

religious organizations equally to some secular

organizations but better or worse than other secular

organizations. As I will explain, this case involving

Nevada’s reopening plan falls into the fourth

category.

First are laws that expressly discriminate against

religious organizations because of religion. The recent

Espinoza case fell into that category. Espinoza v.

Montana Dept. of Revenue, ante, p. ___. The State of

Montana provided tax credits to those who

contributed to private school scholarship organizations. But there was a significant catch: Families

35a

eligible for scholarship funds could use those funds

only at secular private schools, not religious private

schools. Cases like that are straightforward examples

of religious discrimination. And as a general rule,

laws that discriminate against religion are, in the

Court’s words, “odious to our Constitution.” Espinoza,

ante, at 22 (internal quotation marks omitted); see

Trinity Lutheran Church of Columbia, Inc. v. Comer,

582 U. S. ___ (2017); Good News Club v. Milford

Central School, 533 U. S. 98 (2001); Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U. S. 819

(1995); Larson v. Valente, 456 U. S. 228 (1982);

McDaniel v. Paty, 435 U. S. 618, 629 (1978) (Brennan,

J., concurring in judgment); see also Murphy v.

Collier, 587 U. S. ___ (2019) (KAVANAUGH, J.,

concurring in grant of application for stay); cf. Church

of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520

(1993).

Second are laws that expressly favor religious

organizations over secular organizations. Examples

include cases where a legislature affords religious

organizations certain accommodations, exemptions,

or benefits that are not available to secular

organizations. The legislature might, for example,

grant religious organizations a property tax

exemption that is not available to secular

organizations. Cf. Walz v. Tax Comm’n of City of New

York, 397 U. S. 664 (1970). Or the legislature might

authorize accommodations for certain religious

individuals (but not secular individuals) that relieve

them from the burdens of otherwise-applicable laws,

such as the draft. See Gillette v. United States, 401 U.

S. 437 (1971). Those kinds of accommodations or

exemptions can sometimes trigger Establishment

36a

Clause challenges because of the apparent favoritism

of religion. See generally American Legion v.

American Humanist Assn., 588 U. S. ___, ___ (2019)

(KAVANAUGH, J., concurring); see also Cutter v.

Wilkinson, 544 U. S. 709 (2005); Board of Ed. of

Kiryas Joel Village School Dist. v. Grumet, 512 U. S.

687, 722 (1994) (Kennedy, J., concurring in

judgment); Corporation of Presiding Bishop of Church

of Jesus Christ of Latter-day Saints v. Amos, 483 U. S.

327 (1987).

Third are laws that apply to religious and secular

organizations alike without making any classification

on the basis of religion. For example, a city fire code

may require sprinklers in all buildings that can hold

more than 100 people. A law like that would cover

buildings owned by religious organizations and

buildings owned by secular organizations. Those

kinds of laws on their face present no impermissible

discrimination or favoritism.

To be sure, those kinds of laws, although not

differentiating between religious and secular

organizations, can still sometimes impose substantial

burdens on religious exercise. If so, a religious

organization may seek an exemption in court (if not

also in the legislature) to the extent available under

federal or state law and permissible under the

Establishment Clause. See, e.g., Our Lady of

Guadalupe School v. Morrissey-Berru, ante, p. ___;

Gonzales v. O Centro Espírita Beneficente União do

Vegetal, 546 U. S. 418 (2006). Or a religious organization may contend that the facially neutral law was

actually motivated by animus against religion and is

unconstitutional on that ground. See Lukumi, 508

U. S. 520.

37a

Fourth are laws—like Nevada’s in this case—that

supply no criteria for government benefits or action,

but rather divvy up organizations into a favored or

exempt category and a disfavored or non-exempt

category. Those laws provide benefits only to

organizations in the favored or exempt category and

not to organizations in the disfavored or non-exempt

category.

For example, consider a zoning law that places

some secular organizations (apartment buildings,

small retail businesses, restaurants, banks, etc.) in a

favored or exempt zoning category, and places some

secular organizations (office buildings, large retail

businesses, movie theaters, music venues, etc.) in a

disfavored or non-exempt zoning category. Suppose

that religious properties arguably could be considered

similar to some of the secular properties in both

categories. What, then, are the constitutional limits

and requirements with respect to how the legislature

may categorize religious organizations?

In those circumstances, the Court’s precedents

make clear that the legislature may place religious

organizations in the favored or exempt category

rather than in the disfavored or non-exempt category

without causing an Establishment Clause problem.

See, e.g., Walz, 397 U. S., at 696 (opinion of Harlan,

J.) (“[T]he critical question is whether the

circumference of legislation encircles a class so broad

that it can be fairly concluded that religious

institutions could be thought to fall within the natural

perimeter”); Texas Monthly, Inc. v. Bullock, 489 U. S.

1, 14 (1989) (plurality opinion) (expressing approval

of subsidies “conferred upon a wide array of

nonsectarian groups as well as religious organiza-

38a

tions in pursuit of some legitimate secular end”);

Concerned Citizens of Carderock v. Hubbard, 84 F.

Supp. 2d 668 (Md. 2000) (State may place religious

organizations in favored zoning category along with

some secular organizations).

The converse free-exercise or equal-treatment

question is whether the legislature is required to

place religious organizations in the favored or exempt

category rather than in the disfavored or non-exempt

category. The Court’s free-exercise and equaltreatment precedents also supply an answer to that

question: Unless the State provides a sufficient

justification otherwise, it must place religious

organizations in the favored or exempt category. See

Laycock, The Remnants of Free Exercise, 1990 S. Ct.

Rev. 1, 49–50 (explaining how this Court’s precedents

grant “something analogous to most-favored nation

status” to religious organizations).

In Employment Div., Dept. of Human Resources of

Ore. v. Smith, 494 U. S. 872 (1990), for example, the

Court explained that “where the State has in place a

system of individual exemptions, it may not refuse to

extend that system to cases of religious hardship

without compelling reason.” Id., at 884 (internal

quotation marks omitted; emphasis added); see also

Lukumi, 508 U. S., at 537–538. Likewise, then-Judge

Alito stated that the First Amendment required a

police department to exempt Sunni Muslims from its

no-beard policy because the police department made

“exemptions from its policy for secular reasons and

has not offered any substantial justification for

refusing to provide similar treatment for officers who

are required to wear beards for religious reasons.”

Fraternal Order of Police Newark Lodge No. 12 v.

39a

Newark, 170 F. 3d 359, 360 (CA3 1999) (emphasis

added).

Put simply, under the Court’s religion precedents,

when a law on its face favors or exempts some secular

organizations as opposed to religious organizations, a

court entertaining a constitutional challenge by the

religious organizations must determine whether the

State has sufficiently justified the basis for the

distinction.

To be clear, the Court’s precedents do not require

that religious organizations be treated more favorably

than all secular organizations. Rather, the First

Amendment requires that religious organizations be

treated equally to the favored or exempt secular

organizations, unless the State can sufficiently justify

the differentiation.

Stated otherwise, in these kinds of cases, the

Court’s religion precedents require a basic two-step

inquiry. First, does the law create a favored or exempt

class of organizations and, if so, do religious

organizations fall outside of that class? That

threshold question does not require judges to decide

whether a church is more akin to a factory or more

like a museum, for example. Rather, the only question

at the start is whether a given law on its face favors

certain organizations and, if so, whether religious

organizations are part of that favored group. If the

religious organizations are not, the second question is

whether the government has provided a sufficient

justification for the differential treatment and

disfavoring of religion. Cf. Smith, 494 U. S., at 884.

In seeking to justify the differential treatment in

those kinds of cases, it is not enough for the govern-

40a

ment to point out that other secular organizations or

individuals are also treated unfavorably. The point “is

not whether one or a few secular analogs are

regulated. The question is whether a single secular

analog is not regulated.” Laycock & Collis, Generally

Applicable Law and the Free Exercise of Religion, 95

Neb. L. Rev. 1, 22 (2016). To that end, the government

must articulate a sufficient justification for treating

some secular organizations or individuals more

favorably than religious organizations or individuals.

See Smith, 494 U. S., at 884. That point is subtle but

absolutely critical. And if that point is not fully

understood, then cases of this kind will be wrongly

decided.

I turn then to analyzing Nevada’s rules under the

Court’s precedents. As JUSTICE ALITO explains in his

dissent, Nevada has now had more than four months

to respond to the initial COVID–19 crisis and adjust

its line-drawing as circumstances change. Yet Nevada

is still discriminating against religion. Nevada

applies a strict 50-person attendance cap to religious

worship services, but applies a looser 50% occupancy

cap to secular organizations like restaurants, bars,

casinos, and gyms.

Nevada has gestured at two possible justifications

for that discrimination: public health and the

economy. But neither argument is persuasive on this

record.

First is the State’s public health rationale.

Nevada undoubtedly has a compelling interest in

combating the spread of COVID–19 and protecting

the health of its citizens. But it does not have a

41a

persuasive public health reason for treating churches

differently from restaurants, bars, casinos, and gyms.

Calvary Chapel is happy to abide by the same 50%

occupancy cap or some stricter across-the-board

standard, as the State sees fit, so long as the same

standard applies to those secular businesses. And the

Church has committed to social distancing, mask

requirements, and certain voluntary safety measures.

The State has not explained why a 50% occupancy

cap is good enough for secular businesses where

people congregate in large groups or remain in close

proximity for extended periods—such as at

restaurants, bars, casinos, and gyms—but is not good

enough for places of worship. Again, it does not suffice

to point out that some secular businesses, such as

movie theaters, are subject to the lesser of a 50-person

or 50% occupancy cap. The legal question is not

whether religious worship services are all alone in a

disfavored category, but why they are in the

disfavored category to begin with. See Smith, 494

U. S., at 884. And Nevada has not advanced a

sufficient public health rationale for that decision. To

reiterate, the State has substantial room to draw

lines, especially in an emergency or crisis. But

Nevada has not demonstrated that public health

justifies taking a looser approach with restaurants,

bars, casinos, and gyms and a stricter approach with

places of worship.

Second is the State’s economic rationale. The

State wants to jump-start business activity and

preserve the economic well-being of its citizens. The

State has loosened restrictions on restaurants, bars,

casinos, and gyms in part because many Nevada jobs

and livelihoods, as well as other connected Nevada

42a

businesses, depend on those restaurants, bars,

casinos, and gyms being open and busy. It is

understandable for the State to balance public health

concerns against individual economic hardship.

Almost every State and municipality in America is

struggling with that balance. After all, if preventing

transmission of COVID–19 were the sole concern, a

State would presumably order almost all of its

businesses to stay closed indefinitely. But the

economic devastation and the economic, physical,

intellectual, and psychological harm to families and

individuals that would ensue (and has already

ensued, to some extent) requires States to make

tradeoffs that can be unpleasant to openly discuss.

With respect to those tradeoffs, however, no

precedent suggests that a State may discriminate

against religion simply because a religious

organization does not generate the economic benefits

that a restaurant, bar, casino, or gym might provide.

Nevada’s rules reflect an implicit judgment that forprofit assemblies are important and religious

gatherings are less so; that moneymaking is more

important than faith during the pandemic. But that

rationale “devalues religious reasons” for congregating “by judging them to be of lesser import than

nonreligious reasons,” in violation of the Constitution.

Lukumi, 508 U. S., at 537–538. The Constitution does

not tolerate discrimination against religion merely

because religious services do not yield a profit.

More broadly, the State insists that it is in the

midst of an emergency and that it should receive

deference from the courts and not be bogged down in

litigation. If the courts simply enforce the constitutional prohibition against religious discrimination,

43a

however, the floodgates will not open. I agree that

courts should be very deferential to the States’ linedrawing in opening businesses and allowing certain

activities during the pandemic. For example, courts

should be extremely deferential to the States when

considering a substantive due process claim by a

secular business that it is being treated worse than

another business. Cf. Jacobson v. Massachusetts, 197

U. S. 11, 25–28 (1905). Under the Constitution, state

and local governments, not the federal courts, have

the primary responsibility for addressing COVID–19

matters such as quarantine requirements, testing

plans, mask mandates, phased reopenings, school

closures, sports rules, adjustment of voting and

election procedures, state court and correctional

institution practices, and the like.

But COVID–19 is not a blank check for a State to

discriminate against religious people, religious

organizations, and religious services. There are

certain constitutional red lines that a State may not

cross even in a crisis. Those red lines include racial

discrimination, religious discrimination, and contentbased suppression of speech. This Court’s history is

littered with unfortunate examples of overly broad

judicial deference to the government when the

government has invoked emergency powers and

asserted crisis circumstances to override equaltreatment and free-speech principles. The court of

history has rejected those jurisprudential mistakes

and cautions us against an unduly deferential judicial

approach, especially when questions of racial

discrimination, religious discrimination, or free

speech are at stake.

44a

Finally, the State relies on the Court’s recent

temporary injunction decision in South Bay United

Pentecostal Church v. Newsom, 590 U. S. ___ (2020).

There, the Court considered a California limitation on

crowd size at religious services. California treated

religious organizations better than some secular

organizations, like movie theaters, but worse than

other secular organizations, such as restaurants,

supermarkets, retail stores, pharmacies, hair salons,

offices, factories, and the like. In my view, the State

of California’s explanation, at least on that record, did

not persuasively distinguish religious services from

several of the favored secular organizations,

particularly restaurants and supermarkets. But the

Court ultimately denied the church’s request for an

emergency injunction. In his concurrence, THE CHIEF

JUSTICE appropriately emphasized both the high

standard for obtaining injunctive relief in this Court

and the ongoing and rapidly changing public health

emergency. THE CHIEF JUSTICE also noted that the

favored secular activities did not involve people who

“congregate in large groups” or “remain in close

proximity for extended periods.” Id., at ___ (opinion

concurring in denial of application for injunctive

relief) (slip op., at 2).

I continue to think that the restaurants and

supermarkets at issue in South Bay (and especially

the restaurants) pose similar health risks to socially

distanced religious services in terms of proximity to

others and duration of visit. I suspect that many who

have frequented all three kinds of establishments in

recent weeks and months would agree. So I continue

to respectfully disagree with South Bay.

45a

But accepting South Bay as a precedent, this case

is much different because it involves bars, casinos,

and gyms. Nevada’s COVID–19-based health

distinction between (i) bars, casinos, and gyms on the

one hand, and (ii) religious services on the other hand,

defies common sense. As I see it, the State cannot

plausibly maintain that those large secular

businesses are categorically safer than religious

services, or that only religious services—and not bars,

casinos, and gyms—entail people congregating in

large groups or remaining in close proximity for

extended periods of time. In any event, the State has

not yet supplied a sufficient justification for its

counterintuitive distinction.

The Constitution “protects religious observers

against unequal treatment.” Trinity Lutheran, 582

U. S., at ___ (slip op., at 6) (internal quotation marks

and alterations omitted). Nevada’s 50-person

attendance cap on religious worship services puts

praying at churches, synagogues, temples, and

mosques on worse footing than eating at restaurants,

drinking at bars, gambling at casinos, or biking at

gyms. In other words, Nevada is discriminating

against religion. And because the State has not

offered a sufficient justification for doing so, that

discrimination violates the First Amendment. I would

grant the Church’s application for a temporary

injunction. I respectfully dissent.

46a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALVARY CHAPEL DAYTON

VALLEY,

No. 20-16169

Plaintiff-Appellant,

D.C. No.

3:20-cv-00303RFB-VCF

STEVE SISOLAK, in his

official capacity as Governor of

Nevada; et al.,

District of

Nevada, Reno

ORDER

Defendants-Appellees.

Before: THOMAS, Chief Judge, and SCHROEDER,

Circuit Judge.

Appellant’s emergency motion for injunctive relief

pending appeal (Docket Entry No. 9) is denied. See

Hilton v. Braunskill, 481 U.S. 770, 776 (1987); see also

South Bay United Pentecostal Church v. Newsom, 140

S. Ct. 1613 (2020).

The previously established briefing schedule

remains in effect.

47a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALVARY CHAPEL

DAYTON VALLEY,

Plaintiff-Appellant,

STEVE SISOLAK, in his

official capacity as Governor

of Nevada; et al.,

No. 20-16169

D.C. No.

3:20-cv-00303RFB-VCF

District of

Nevada, Reno

ORDER

Defendants-Appellees.

Appellees Aaron Ford and Steve Sisolak’s Motion

to Dismiss Appeal (Dkt. No. 50) is DENIED. A party’s

“voluntary cessation of a challenged practice does not

deprive a federal court of its power to determine the

legality of the practice” if the challenged practice is

“reasonably . . . expected to recur.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528

U.S. 167, 189 (2000) (internal quotations and

citations omitted). Furthermore, a court may exercise

jurisdiction over cases that are “capable of repetition,

48a

yet evading review.” Kingdomware Techs., Inc. v.

United States, 136 S. Ct. 1969, 1976 (2016) (internal

quotations and citations omitted).

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Omar Cubillos

Deputy Clerk

Ninth Circuit Rule 27-7

49a

U.S. Constitution Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press; or the right of the people peaceably to

assemble, and to petition the government for a

redress of grievances.

U.S. Constitution Amendment XIV § 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the state wherein they

reside. No state shall make or enforce any law which

shall abridge the privileges or immunities of citizens

of the United States; nor shall any state deprive any

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

50a

Declaration of Emergency Directive 021 –

Phase Two Reopening Plan

WHEREAS, in late 2019, the United States Centers

for Disease Control and Prevention began monitoring

an outbreak of respiratory illness caused by a novel

coronavirus first identified in Wuhan, Hubei

Province, China; and

WHEREAS, on February 11, 2020, the International

Committee on Taxonomy of Viruses named this novel

coronavirus “severe acute respiratory syndrome

coronavirus 2 (SARS-Co V-2);” and

WHEREAS, on February 11, 2020, the World Health

Organization named the disease caused by SARSCoV-2, “COVID-19:” and

WHEREAS, the World Health Organization advises

that the novel coronavirus that causes COVID-19

virus is highly contagious, and spreads through

respiratory transmission, and direct and indirect

contact with infected persons and surfaces; and

WHEREAS, the World Health Organization advises

that respiratory transmission occurs through both

droplet and airborne transmission, where droplet

transmission occurs when a person is within 6 feet of

someone who has respiratory symptoms like coughing

or sneezing, and airborne transmission may occur

when aerosolized particles remain suspended in the

air and is inhaled; and

WHEREAS, the World Health Organization advises

that contact transmission occurs by direct contact

with infected people or indirect contact with surfaces

contaminated by the novel coronavirus; and

51a

WHEREAS, some persons with COVID-19 may

exhibit no symptoms but remain highly infectious;

and

WHEREAS, on March 5, 2020, Clark County and

Washoe County both reported the first known cases of

COVID-19 in the State of Nevada; and

WHEREAS, on March 11, 2020, the World Health

Organization declared COVID-19 a pandemic; and

WHEREAS, on March 12, 2020, I, Steve Sisolak,

Governor of the State of Nevada issued a Declaration

of Emergency to facilitate the State’s response to the

COVID-19 pandemic; and

WHEREAS, on March 13, 2020, Donald J. Trump,

President of the United States declared a nationwide

emergency pursuant to Sec. 501(b) of the Robert T.

Stafford Disaster Relief and Emergency Assistance

Act, 42 U.S.C. 5121-5207 (the “Stafford Act”); and

WHEREAS, on March 14, 2020, I formed a medical

advisory team to provide medical guidance and

scientifically based recommendations on measures

Nevada could implement to better contain and

mitigate the spread of COVID-19; and

WHEREAS, infectious disease and public health

experts advised that minimizing interpersonal

contact slows the rate at which the disease spreads,

and is necessary to avoid overwhelming healthcare

systems, commonly referred to as “flattening the

curve”; and

WHEREAS, since the March 12, 2020 Declaration of

Emergency, I have issued 20 Directives pursuant to

that order to provide for the safety, wellbeing, and

52a

public health of Nevadans and the administration of

the State of Nevada; and

WHEREAS, these Directives were promulgated to

reduce interpersonal contact and promote social

distancing to flatten the curve; and

WHEREAS, data showed that Nevada was one of the

top five states in the United States for social

distancing; and

WHEREAS, Nevada’s medical experts indicate that

the rate at which COVID-19 is spreading in the State

of Nevada has effectively slowed to a level that does

not jeopardize the state’s healthcare system due, in

part, to Nevadans following strict social distancing

measures individually and pursuant to Directives I

issued pursuant to the March 12, 2020, Declaration of

Emergency; and

WHEREAS, although the danger to Nevadans from

the COVID-19 disease has abated, the disease has not

been eliminated and measures that protect safety,

wellbeing, and public health of Nevadans must

remain in effect; and

WHEREAS, on April 21, 2020, the National

Governors Association issued guidance for a staged

reopening that protects the public’s health while

laying a strong foundation for long-term economic

recovery; and

WHEREAS, on April 30, 2020, I introduced the

Nevada United: Roadmap to Recovery plan that

outlined a phased approach to reopening Nevada

businesses and industry; and

WHEREAS, the Nevada United: Roadmap to

Recovery plan set forth a collaborative partnership

53a

between state and local governments that included

the formation of the Local Empowerment Advisory

Panel (“LEAP”) to serve as a resource to local

governments and local communities; and

WHEREAS, on May 9, 2020, the State of Nevada

entered Phase One of the Nevada United: Roadmap

to Recovery plan; and

WHEREAS, in the 19 days since Nevada entered

Phase One, our state has experienced a consistent and

sustainable downward trajectory in the percentage of

positive COVID-19 cases, a decrease in the trend of

COVID-19 hospitalizations, and a decline in our

cumulative test positivity rate from a maximum rate

of 12.2% on April 24, 2020 to 6.3% on May 27, 2020

with a 33-day downward trend; and

WHEREAS, the LEAP develops statewide guidelines

for social distancing and phased reopening in

consultation with local health authorities and other

subject matter experts; and

WHEREAS, NRS 414.060 outlines powers and duties

delegated to the Governor during the existence of a

state of emergency, including without limitation,

directing and controlling the conduct of the general

public and the movement and cessation of movement

of pedestrians and vehicular traffic during, before and

after exercises or an emergency or disaster, public

meetings or gatherings; and

WHEREAS, NRS 414.070 outlines additional powers

delegated to the Governor during the existence of a

state of emergency, including without limitation,

enforcing all laws and regulations relating to

emergency management and assuming direct

54a

operational control of any or all forces, including,

without limitation, volunteers and auxiliary staff for

emergency management in the State; providing for

and compelling the evacuation of all or part of the

population from any stricken or threatened area or

areas within the State and to take such steps as are

necessary for the receipt and care of those persons;

and performing and exercising such other functions,

powers and duties as are necessary to promote and

secure the safety and protection of the civilian

population; and

WHEREAS, the Nevada Attorney General opined in

Opinion Number 95-03 that in times of emergency

when the Governor’s authority under Nevada Revised

Statutes Chapter 414 is in effect, the powers of

political subdivisions to control business activity is

limited; and

WHEREAS, NRS 414.060(3)(f) provides that the

administrative authority vested to the Governor in

times of emergency may be delegated; and

WHEREAS, Article 5, Section 1 of the Nevada

Constitution provides: “The supreme executive power

of this State, shall be vested in a Chief Magistrate

who shall be Governor of the State of Nevada;” and

NOW, THEREFORE, by the authority vested in me

as Governor by the Constitution and the laws of the

State of Nevada and the United States, and pursuant

to the March 12, 2020, Emergency Declaration,

IT IS HEREBY ORDERED THAT:

55a

SECTION

To the extent this Directive conflicts

with earlier Directives or regulations

promulgated pursuant to the March

12, 2020 Declaration of Emergency,

the provisions of this Directive shall

prevail.

Consistent with the Nevada United:

Roadmap to Recovery plan for a

federally supported, state managed,

and locally executed reopening

approach, county governments are

hereby delegated the authority to

impose additional COVID-19 related

restrictions on businesses and public

activities. Restrictions imposed by

county government may exceed the

standards imposed by Declaration of

Emergency Directives or set forth

under the LEAP guidelines, but in no

case shall county-guidelines be more

permissive than the provisions of this

Directive.

Businesses may adopt practices that

exceed the standards imposed by

Declaration of Emergency Directives,

guidelines promulgated by the

Nevada State Occupational Safety

and Health Administration (NV

OSHA) or LEAP guidelines, but in no

case shall business practices be more

permissive than the provisions of this

Directive or those imposed by NV

OSHA and the LEAP.

56a

SECTION

Businesses performing non-retail

services, including without limitation,

legal services, accounting services, or

real estate services, are encouraged to

conduct business telephonically or

virtually to the greatest extent practicable. These businesses are

encouraged to permit employees to

work from home to the greatest

extent practicable.

For the purposes of this Directive,

“vulnerable persons” are defined as

those who are at heightened risk of

complications from COVID-19

disease, and include:

1. Individuals who are 65 years of

age and older;

2. Individuals with chronic lung

disease or moderate to severe

asthma;

3. Individuals who have serious

heart conditions;

4. Individuals who are

immunocompromised;

5. Pregnant women; or

6. Individuals determined to be

high risk by a licensed

healthcare provider.

All vulnerable persons are strongly

encouraged to stay at home to the

greatest extent possible, except when

necessary to provide, support,

perform, or operate necessary

activities, minimum basic operations,

57a

SECTION

critical government functions,

necessary travel, or essential

businesses.

The phrase “social distancing”

references guidance promulgated by

the United States Centers for Disease

Control and Prevention, including

without limitation, maintaining at

least six feet of physical distancing

from other individuals. The phrase

“sanitation requirements,” “sanitation

measures,” and “sanitation

guidelines” includes without

limitation, washing hands with soap

and water for at least twenty seconds

as frequently as possible, using hand

sanitizer, covering coughs or sneezes

(into the sleeve or elbow, not hands),

regularly cleaning high-touch

surfaces, and not shaking hands.

All Nevadans are strongly encouraged

to stay in their residences to the

greatest extent possible. Recognizing

that COVID-19 is still present in

Nevada and highly contagious,

Nevadans are advised that they are

safer at home and should avoid

interpersonal contact with persons

not residing in their households to the

extent practicable. Nevadans are

urged to avoid travel to the greatest

extent practicable. To reduce the

spread of COVID-19 via respiratory

transmission, the Nevada public

58a

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10:

SECTION

11:

should utilize face coverings in public

spaces.

Pursuant to NRS 441A.180, persons

testing positive for COVID-19 shall

stay at home and “self quarantine” for

a minimum of two weeks, except as

necessary to care for themselves or

seek medical care. Persons

determined to be in contact with an

individual who tested positive for

COVID-19 must quarantine and stay

at home for two weeks, or until a

negative test result has been

received.

Section 1 of Directive 007 is hereby

further amended to provide that

effective 12:01 am on May 29, 2020,

the Nevada general public shall not

gather in groups of more than fifty in

any indoor or outdoor area subject to

the limitations of this section,

whether publicly owned or privately

owned where the public has access by

right or invitation, express or implied,

whether by payment of money or not.

Section 3 of Directive 007 shall

remain in force.

Communities of worship and faithbased organizations, including

without limitation, churches,

synagogues, mosques, and temples,

are strongly encouraged to offer

online and drive-up services to the

greatest extent possible. Effective

59a

12:01 am on May 29, 2020, consistent

with other Directives on public

gatherings, houses of worship may

conduct indoor in-person services in a

manner so that no more than fifty

persons are gathered, and all social

distancing requirements are satisfied.

This limitation shall not apply to

houses of worship offering drive-up

services pursuant to Section 10 of

Directive 016. Houses of worship

offering indoor, in-person services are

encouraged to follow the guidelines

promulgated by the LEAP, as well as

the following provisions that are

consistent with other Directives on

public gatherings:

1. Seating must be arranged to

ensure a minimum of six feet of

separation between

congregants who do not reside

in the same household.

2. Participants, including leaders

and staff, are encouraged to

utilize face coverings to the

greatest extent practicable.

3. Houses of worship are

encouraged to stagger services

so that the entrance and egress

of congregants for different

services do not result in a

gathering greater than fifty

persons, and to provide proper

sanitation between services.

60a

SECTION

12:

SECTION

13:

SECTION

14:

All employers must take proactive

measures to ensure compliance with

the social distancing and sanitation

guidelines. All employers shall

continue to require employees who

interact with the public to wear face

coverings, to the maximum extent

possible, and shall abide by all other

guidelines promulgated by NV OSHA.

All businesses must adopt measures

that meet or exceed the standards

promulgated by NV OSHA to

minimize the risk of spread of

COVID-19. All businesses are

encouraged to permit their employees

to work from home to the maximum

extent practicable. NV OSHA shall

continue to ensure that businesses

reopened pursuant to this Directive

or otherwise operating during the

state of emergency provide adequate

protections to their workers and

adopt sanitation protocols that

minimize the risk of spread of

COVID-19 among their workforce. NV

OSHA shall enforce all violations of

its guidance, protocols, and

regulations.

All employers are encouraged to

consult guidelines issued by the

LEAP for industry-specific

information for operating in the

phased reopening under the Nevada

United: Roadmap to Recovery plan.

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15:

The LEAP guidelines will be posted

on the Nevada Health Response

website at

https://nvhealthresponse.nv.gov/.

To the maximum extent practicable,

employers and employees are strongly

encouraged to incorporate the

following protocols into their business

operations:

1. Encourage customers to wear

face coverings

2. Continue to encourage

telework, whenever possible

and feasible with business

operations

3. Return to work in phases

4. Close common areas where

personnel are likely to

congregate and interact, or

enforce strict social distancing

protocols

5. Strongly consider special

accommodations for personnel

who are members of a

vulnerable population

6. Encourage employees to do a

self-assessment each day in

order to check if they have any

COVID-19 type symptoms, for

example, fever, cough or

shortness of breath

7. Practice hand hygiene

62a

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16:

8. Perform frequent enhanced

environmental cleaning of

commonly touched surfaces

9. Implement separate operating

hours for vulnerable

populations

10. Provide signage advising the

public of appropriate social

distancing within the facility,

including six feet of social

distancing from other

individuals; and

11. Provide readily available hand

sanitizer or other sanitizing

products for employees and

customers

All employers operating under Phase

Two are encouraged to accommodate

vulnerable persons and workers

caring for a child whose school or

place of care is closed, or childcare

provider is unavailable, for reasons

related to COVID-19, by promoting

telecommuting or other remote work

options, flexible schedules, or other

means. To the greatest extent

possible, employers should extend

similar accommodations to workers

who live in the same household as a

vulnerable person. Upon request, all

employers covered by the Families

First Coronavirus Response Act

(“FFCRA”) must provide leave to

eligible employees as provided by the

63a

SECTION

17:

Act. Employers covered by the

FFCRA must notify covered

employees seeking accommodations of

their eligibility. The provisions of this

Section shall be in effect for the

duration that the March 12, 2020

Declaratio

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