Monday, February 8, 2021

Religious discrimination not allowed, even in a pandemic

Here's a case from December 2020 in the United States Court of Appeals for the Ninth circuit.  Here's a map of the circuits.
This case is called Calvary Chapel Dayton Valley v Steve Sisolak, Governor of Nevada and is an appeal of a case from the District Court for the District of Nevada.

To slow the spread of COVID-19, the State of Nevada issued an emergency order limiting social gatherings.  Several businesses and other entities were limited to "50% of fire code capacity", others were limited to "the lesser of 50% of fire code capacity or 50 persons".  Indoor, in-person services in houses of worship were limited to 50 persons.  The church argued that this limitation was specifically directed at, and discriminated against, houses of worship and did not meet the requirements which would allow the State to do that.

The First Amendment states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."  This applies to state governments by the Fourteenth Amendment.

In determining whether a law prohibits the free exercise of religion, courts ask whether the law “is neutral and of general applicability.”  If it is, the law must only be rationally related to the government interest.  If not, the law must satisfy the stricter requirement of "narrowly tailored to meet a compelling government interest".

Calvary Chapel argued that §11 of the Directive was not neutral and generally applicable, because it expressly treats at least six categories of secular assemblies [casinos, restaurants and bars, amusement and theme parks, gyms and fitness centers, movie theaters, and mass protests] better than it treats religious services.  And because religious services are subject to First Amendment protection, the State must have a compelling interest in the regulation, and the regulation must be narrowly tailored to meet that compelling interest.  The church argued that the State had no valid reason to treat the church differently than those six commercial enterprises.

Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities. Therefore, it is not neutral and of general applicability.  To survive strict scrutiny review, the Directive must be narrowly tailored to serve a compelling state interest.

Instead of a fifty-person cap, the Directive could have imposed a limitation of 50% of fire-code capacity on houses of worship, just like retail stores, restaurants, and casinos. Therefore, though slowing the spread of COVID-19 is a compelling interest, the Directive is not narrowly tailored to serve that interest.

The court ruled that Calvary Chapel was likely to win the case on the Free Exercise claim. The court also decided that enforcing the occupancy limitations would cause irreparable harm.  Therefore, the court issued an injunction, stopping the limitation of 50 persons on houses of worship.

Do you agree with the court's conclusion?  Why or why not?


  1. I'm sorry, that's just plain bonkers. It's a pandemic, people! Be grateful they were trying to do something to limit the spread. *walking off shaking head*

    1. I’ll have to disagree with you here. If other businesses were not restricted as much, then I don’t believe churches should have greater restrictions. Let the people attending make the decision whether to attend in person. My church offers in-person (with social distancing etc) or online. People can choose which one.

  2. The difference with churches (and this is what was explained to us) is that people spend a long time in a crowded room, so it isn't the same as other businesses. In Oz, it was regarded to be more on par with restaurants - which also had to close.

    As restrictions were gradually eased, first to 1 person/4 square metres (43 square feet), churches and restaurants could start having some people return.