On May 22, 2020, a Nevada church filed this lawsuit against the Governor of Nevada, challenging the state’s restrictions on congregational worship during the COVID-19 pandemic. Represented by the Alliance Defending Freedom, the church filed suit in the U.S. District Court for the District of Nevada. The case was assigned to Judge Larry R. Hicks; when he recused himself, the case was reassigned to Chief Judge Miranda M. Du, and later, based on relatedness to Calvary Chapel Lone Mountain v. Sisolak, to Judge Richard F. Boulware, II.

In its complaint, the church alleged that the governor’s ban on gathering was unconstitutional. The governor had prohibited public gatherings of 10 or more people, including worship gatherings. However, numerous types of businesses were exempt, and allowed to operate at 50% capacity: restaurants, nail salons, barbershops, and others. When the church filed an amended complaint on May 28, 2020, the governor’s order had been amended: up to 50 people could gather to worship, but the list of businesses allowed to operate at 50% capacity had grown to include gyms, bars, swimming pools, museums, casinos, malls, and bowling alleys. For many of these businesses (particularly casinos), 50% capacity meant groups of several hundred. The church questioned the logic of allowing gatherings of hundreds at casinos in Las Vegas while restricting worship, under threat of criminal and civil penalties, in remote and rural Lyon County. (The Sheriff of Lyon County, also named as a defendant in the lawsuit, supported the church’s position of opposition to the governor’s statewide orders.)

Additionally, state officials had declined to enforce the gathering ban on large groups of police violence protestors; the governor had publicly supported and encouraged such protests. The church alleged that the facial non-neutrality of the orders, and the state’s inconsistent enforcement of those orders, amounted to a violation of the church’s First Amendment rights of assembly, speech, and free exercise. It sued under 42 U.S.C. § 1983, seeking declaratory relief, injunctive relief, and attorneys’ fees and costs.

On May 28, 2020, after unsuccessful attempts to persuade the governor to amend his orders, the church filed an emergency motion for a temporary restraining order, seeking to be allowed to gather on Sunday, May 31 for Pentecost Sunday. The court (Chief Judge Miranda M. Du) denied the motion the following day, concluding that it was unreasonable for the church to submit an emergency motion one business day before its desired meeting on Pentecost. The court also denied the church’s emergency motion for reconsideration. Two weeks later, on June 11, 2020, the court (now Judge Richard F. Boulware, II) denied the church’s motions for temporary restraining order or preliminary injunction, finding that the church had not succeeded in demonstrating a likelihood of success on the merits. 2020 WL 4260438.

The church appealed to the Ninth Circuit on June 15, 2020, seeking an injunction pending appeal. The Ninth Circuit denied this motion on July 2. 2020 WL 4274901. The church then appealed to the United States Supreme Court, seeking an injunction while the appeal proceeded in the Ninth Circuit. The Supreme Court denied the request on July 24, 2020, over three dissents by four members of the court. 140 S. Ct. 2603. In one dissent, Justice Gorsuch stated that “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.” On October 26, 2020, the Ninth Circuit denied the motion to dismiss the appeal as moot.

On November 5, the church filed a petition for writ of certiorari before judgment to the Supreme Court in advance of oral argument in the Ninth Circuit regarding the church's appeal of the preliminary injunction; the requested expedited review before the end of the Court's 2020 Term, stating that failure to quickly resolve the issue could lead to months of First Amendment rights being abridged.

On December 15, 2020, the Ninth Circuit reversed the district court and remanded the case for further proceedings, finding that based on Roman Catholic Diocese of Brooklyn v. Cuomo the plaintiffs had demonstrated a likelihood of success on the merits of the Free Exercise claims. In particular, although slowing the spread of COVID-19 was a compelling interest, the order was not narrowly tailored enough to serve that interest. The opinion instructed the lower court to employ strict scrutiny in its review of the governmental order and preliminarily enjoined the defendants from imposing attendance limitations on in-person services. 982 F.3d 1228.

Following this, the church submitted a reply brief to the Supreme Court on December 22, stating that although the court did a "commendable job" applying Roman Catholic Diocese, review was still warranted because the Ninth Circuit had still granted a preliminary injunction allowing the church to meet at a 25% capacity limit, which was the same as casinos, museums, and other similar spaces. The church also requested a stay in the district court proceedings, and requested that the Ninth's Circuit remain in effect until the Supreme Court issued a ruling on the petition, which Judge Boulware granted on January 5, 2021. The Supreme Court denied the petition on January 25, 2021.

On April 7, 2021, the parties filed a consent decree, which was intended to resolve all claims by the church. The consent decree stipulated that Nevada was permanently enjoined from enforcing the numerical capacity limits on indoor religious gatherings as specified in Directive 021 and 035, as well as from enforcing a percentage capacity limit on indoor religious gatherings that was less favorable than the highest percentage capacity limits imposed on other indoor facilities. Nevada agreed to pay the church's reasonable attorneys' fees and costs. Judge Boulware approved the consent decree on May 13, 2021 and the case is now closed.

Gregory Marsh - 08/08/2020


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