982 F.3d 1228
9th Cir.2020Background
- Nevada declared a COVID-19 emergency; Governor Sisolak issued Directive 021 (May 28, 2020) limiting gatherings and imposing sector-specific occupancy rules.
- Directive generally capped gatherings at 50 people and imposed 50% of fire-code capacity for many secular businesses; §11 separately capped indoor in-person services at houses of worship to 50 persons (regardless of fire-code capacity).
- Calvary Chapel sued claiming the church-gathering cap violates the Free Exercise Clause because the Directive treats many secular activities more favorably.
- The district court denied a preliminary injunction, finding the Directive neutral and generally applicable (relying on Chief Justice Roberts’s South Bay concurrence); Ninth Circuit and Supreme Court previously denied emergency relief.
- The Ninth Circuit (M. Smith, J.) reversed the district court, holding §11 is not neutral/generally applicable, applying strict scrutiny, and preliminarily enjoining enforcement of occupancy limits more restrictive than 25% of fire-code capacity for houses of worship.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Neutrality / general applicability of §11 | §11 singles out religion; sec. activities (casinos, restaurants, theaters, gyms, etc.) treated better | Directive treats comparable secular gatherings as severely or more severely restricted; Jacobson defers to public-health judgments | §11 not neutral/generally applicable — disparate treatment of religion triggers strict scrutiny |
| Proper legal framework in a pandemic | Free Exercise analysis governs; strict scrutiny if not neutral | Jacobson public-health framework applies; deference to emergency powers | Court applies Free Exercise doctrinal framework (Lukumi/Smith) and Roman Catholic Diocese precedent rather than exclusive Jacobson deference |
| Whether Directive survives strict scrutiny | State has not narrowly tailored restrictions; less-restrictive, workable alternatives exist (e.g., % of fire-code) | Measures are necessary to curb COVID spread; broad limits justified by public health | State interest (controlling COVID) is compelling, but Directive is not narrowly tailored; alternatives exist (e.g., 50% fire-code model) |
| Remedy / preliminary injunction relief | Injunction needed: likelihood of success, irreparable harm, public interest favor relief | Enforcement should be allowed given emergency; no likelihood of success | Granted preliminary relief: enjoin enforcement of attendance limits on houses of worship that are more restrictive than 25% of fire-code capacity; district court may modify consistent with opinion |
Key Cases Cited
- Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872 (1990) (neutral, generally applicable laws require only rational-basis review)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (laws that target religion are not neutral and trigger strict scrutiny)
- Jacobson v. Massachusetts, 197 U.S. 11 (1905) (recognized state authority in public-health emergencies)
- Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) (standards for preliminary injunctions)
- South Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613 (2020) (Roberts, C.J., concurring) (argues similar or greater restrictions on secular activities supports neutrality)
- Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam) (COVID-19 restrictions that single out houses of worship are not neutral; strict scrutiny applies)